PROPERTY LAW AND PRACTICE

550 Pages·2010·4.185 MB·English

by  Neil Duckworth BA, Solicitor and Anne Rodell MA, Solicitor

i
PROPERTY LAW AND PRACTICE
ii Property Law and Practice
iii
PROPERTY LAW AND PRACTICE
Neil Duckworth BA, Solicitor
and
Anne Rodell MA, Solicitor
iv Property Law and Practice
Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The College of Law 2010
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or
by any means, including photocopying or recording, without the written permission of the copyright holder, application for
which should be addressed to the publisher.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: 978 1 907624 00 1
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Printed in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire
v
Preface
This book is intended as an introduction to property law and practice for those studying on the Legal Practice
Course. It is hoped, however, that it will also be of use to others wanting an introduction to property practice
and procedure. Its approach is essentially practical, and it does not pretend to contain a detailed analysis of the
underlying law. Some background law is included, but it is assumed that readers will have the basic knowledge
of land law and contract on which an understanding of property law and practice depends.
In the interests of brevity, both solicitor and client are referred to throughout the book in the male gender.
Users of the book are requested to read ‘he/she’ every time the masculine pronoun is used, and to accept our
apology for omitting specific references to both female solicitors and clients.
We would both like to acknowledge the debt we owe to Paul Butt who was responsible for many previous
editions of this book, and we thank him for his help and advice over the years.
Thanks also to all our colleagues and students at The College of Law for their assistance, some of it unwitting.
The law is generally stated as at 1 May 2010.
Neil Duckworth
Moorgate
Anne Rodell
Guildford
vi Property Law and Practice
Acknowledgements
The Standard Conditions of Sale and the Standard Commercial Property Conditions are reproduced for
educational purposes only by kind permission of the Solicitors Law Stationery Society Limited and The Law
Society of England and Wales.
We also acknowledge with thanks the kind permission of The Law Society to reproduce the following:
• the National Protocol for Domestic and Leasehold Property;
• the Law Society’s formulae for exchanging contracts by telephone, fax or telex;
• the Law Society’s code for completion by post;
• the form of undertaking to discharge building society mortgages;
• the forms of undertaking agreed with banks.
The CML Lenders’ Handbook for England and Wales, Part 1, is reproduced for educational purposes only by
kind permission of the Council of Mortgage Lenders. The Handbook is frequently updated and the current
version can be found at www.cml.org.uk/handbook.
Contents vii
Contents
PREFACE v
ACKNOWLEDGEMENTS vi
TABLE OF CASES xvii
TABLE OF STATUTES xxi
TABLE OF STATUTORY INSTRUMENTS, CODES, RULES, CONDITIONS AND GUIDANCE xxv
GLOSSARY OF TERMS xxix
TABLE OF ABBREVIATIONS xxxviii
Part I ESSENTIAL BACKGROUND: OUTLINE OF A CONVEYANCING
TRANSACTION, UNDERLYING LAW, PROFESSIONAL CONDUCT
AND TAXATION 1
Chapter 1 INTRODUCTION TO PROPERTY LAW AND PRACTICE 3
1.1 What is ‘Property Law and Practice’? 3
1.2 Approach taken by this book 3
1.3 The relationship of conveyancing and land law 4
1.4 Registered and unregistered land 4
1.5 E-conveyancing 6
1.6 The Carbon Reduction Commitment Energy Efficiency Scheme 7
1.7 Practitioner texts 8
1.8 Stop press – Home Information Packs 8
Chapter 2 OUTLINE OF A SIMPLE TRANSACTION 9
2.1 How a conveyancing transaction works 9
2.2 Outline of a simple transaction 9
2.3 Linked transactions 15
2.4 The National Protocol 15
Chapter 3 UNDERLYING LAND LAW PRINCIPLES – RIGHTS AND INTERESTS 17
3.1 Introduction 17
3.2 Legal estates, legal interests and equitable interests 17
3.3 Formalities 18
3.4 Protecting third-party interests 18
3.5 Easeme nts 19
3.6 Covenants 20
3.7 Trusts of land 22
3.8 Co-ownership 23
3.9 Mortgages 26
3.10 Adverse possession 28
3.11 Further reading 29
Chapter 4 UNDERLYING LAND LAW PRINCIPLES – REGISTERED AND UNREGISTERED LAND 31
4.1 Introduction 31
4.2 Unregistered land 31
4.3 Registered land 32
4.4 Further reading 41
4.5 Example of a registered title 42
viii Property Law and Practice
Chapter 5 CONDUCT ISSUES RELEVANT TO CONVEYANCING 45
5.1 Introduction 45
5.2 Acting for seller and buyer 45
5.3 Acting for joint buyers 47
5.4 Acting for borrower and lender 47
5.5 Acting for joint borrowers – undue influence 48
5.6 Confidentiality 49
5.7 Contract races 50
5.8 Undertakings 51
5.9 Estimate for costs 52
5.10 Introductions and referrals 53
5.11 Dealing with non-solicitors 53
5.12 Money laundering 54
5.13 Mortgage fraud 55
Chapter 6 PROPERTY TAXATION 57
6.1 Capital gains tax 57
6.2 Value added tax 59
6.3 Stamp duty land tax 62
Chapter 7 TOWN AND COUNTRY PLANNING, BUILDING REGULATIONS AND
RELATED MATTERS 65
7.1 Town and country planning 65
7.2 Listed buildings and conservation areas 70
7.3 Building regulation control 71
7.4 Restrictive covenants and planning and building regulations control 72
7.5 Transactional matters 72
7.6 Environmental issues 73
PART I SUMMARY – ESSENTIAL BACKGROUND: OUTLINE OF A CONVEYANCING TRANSACTION,
UNDERLYING LAW, PROFESSIONAL CONDUCT AND TAXATION 75
Part II THE CONVEYANCING TRANSACTION: INITIAL STAGES 79
Chapter 8 MARKETING THE PROPERTY AND TAKING INSTRUCTIONS 81
8.1 Marketing the property 81
8.2 Purpose of taking instructions 84
8.3 Matters on which instructions must be obtained 86
8.4 Acting for the seller 86
8.5 Acting for the buyer 89
8.6 Instructions in special cases 91
8.7 Specimen instructions 91
Chapter 9 FINANCE FOR THE BUYER 95
9.1 I ntroduction 95
9.2 Sources of finance 96
9.3 Amount of the loan 97
9.4 Types of mortgage 98
9.5 Further reading 99
Chapter 10 ADVISING JOINT BUYERS 101
10.1 Advising the client 101
10.2 Suitability of each method 101
Chapter 11 FIXTURES AND FITTINGS 103
11.1 Fixtures and fittings – introduction 103
11.2 Difficulty of distinguishing between fixtures and fittings 103
11.3 Need for certainty in contract 103
11.4 Apportionment of purchase price 104
11.5 Fittings and contents form 104
Contents ix
Chapter 12 SURVEYS 105
12.1 When should a survey be commissioned? 105
12.2 Reasons for a survey 105
12.3 Types of survey 105
12.4 Factors indicating desirability of a full survey 106
12.5 Surveys in special cases 106
12.6 Flats and other attached properties 107
12.7 Surveyor’s liability 107
Chapter 13 ACTION FOLLOWING INSTRUCTIONS 109
13.1 After the interview: both parties 109
13.2 For the seller 110
13.3 For the buyer 113
Part III THE CONVEYANCING TRANSACTION: PROCEDURE LEADING
TO EXCHANGE 115
Chapter 14 DEDUCTION OF TITLE 117
14.1 Deduction of title 117
14.2 Time for deduction 117
14.3 Seller’s obligations 117
14.4 Method of deduction for registered land – official copies 117
14.5 Method of deduction for unregistered land – epitomes and abstracts 117
14.6 Leaseholds 120
Chapter 15 INVESTIGATION OF TITLE – HOW TO INVESTIGATE TITLE 121
15.1 Introduction 121
15.2 Reasons for investigating title 121
15.3 Investigating title in registered land 122
15.4 Unregistered land 124
Chapter 16 INVESTIGATION OF TITLE – PARTICULAR PROBLEMS AND WORKED EXAMPLES 129
16.1 Particular problem areas 129
16.2 Trustees of land 129
16.3 Personal representatives 130
16.4 Co-owners 132
16.5 Disposing lenders 133
16.6 Discharged mortgages 134
16.7 Attorneys 135
16.8 Transactions at an undervalue 137
16.9 Execution of deeds 139
16.10 Verification of title 141
16.11 Raising requisitions 142
16.12 Worked example of investigation of a registered title – 10 Bladen Road,

Overton, Cornshire 142
16.13 Worked example of investigation of an unregistered title – 15, Mill Street,
Torridge, Huntshire 146
Chapter 17 SEARCHES AND ENQUIRIES BEFORE CONTRACT 155
17.1 Reasons for making searches 155
17.2 Who should make the searches and enquiries? 155
17.3 National Land Information Service 156
17.4 Which searches should be made? 156
17.5 Local land charges search 157
17.6 Enquiries of local authority 158
17.7 Pre-contract enquiries of the seller 161
17.8 Water and drainage enquiries 163
17.9 Land Charges Department search 163
17.10 Company search 164