Disponee definition

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Positive covenants in transfers—protecting positive obligations—checklist

Positive covenants in transfers—protecting positive obligations—checklist What is a positive covenant? A covenant is a form of contract. Examples of positive covenants which typically appear in transfers of land include obligations to: • repair or maintain (eg accessways), or contribute to the costs of repair and maintenance incurred by someone else • erect buildings or boundary fences (eg in the case of a transfer of part) • pay further money (ie overage) if, for example, planning permission is obtained or on a sale after the land has been developed What is the issue with positive covenants? It is a well-established common law principle that the burden of a positive freehold covenant does not run with the land. Consequently, where a party to a transfer of freehold land (Party B) enters into a positive covenant with the other party to the transfer (Party A), the burden of that covenant will not bind Party B’s successors in title, notwithstanding Law of Property Act 1925, s 79. The burden of the covenant is...

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Registered charges—powers of registered proprietor of the land and the charge

Registered proprietor of the landWhile the proprietor of a registered estate subject to a registered charge is:•in possession, and•subject to any contrary intention in the mortgage deedhe has the power to:•grant the leases specified by statute, and •accept surrenders of leases to allow the above leases to be grantedThe mortgage deed (and any deed varying it) may:•extend the statutory powers, or conversely•limit them A restriction should be entered in the register in respect of any limitation.Registered proprietor of chargeThe owner of a registered charge, who is the:•registered proprietor, or •person entitled to be registered as the proprietor has the power to: •make a disposition of any kind permitted by the general law in relation to the charge (eg to sell other than a legal sub-mortgage), and •charge at law, with the payment of money, the indebtedness secured by the charge In Skelwith, the High Court decided that the assignee of a registered charge had been entitled to enter into an agreement to sell the relevant property, despite the fact...

Application for confirmation in Scotland—intestate cases

Application for confirmation in Scotland—intestate cases FORTHCOMING CHANGE: The Trusts and Succession (Scotland) Act 2024 received Royal Assent on 30 January 2024, marking the first review of trusts law in Scotland in over 100 years since the principal legislation, the Trusts (Scotland) Act 1921, was passed. The trusts provisions require secondary legislation from Scottish Ministers to be brought into force whereas the provisions relating to succession law came into effect on 30 April 2024. The main changes to modernise the law are summarised in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes on areas of Scottish trusts and succession law will be updated further to reflect this new legislation. This Practice Note deals with the procedure for obtaining confirmation in intestate estates. For testate estates, or those aspects of applying for confirmation which are the same for both testate and intestate estates, see Practice Note: Application for confirmation in Scotland—testate cases. Appointment of executor Order of succession The rules of intestate succession are set out...

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Deed of mutual covenant—flying freehold

Deed of mutual covenant—flying freehold DATE [date] Parties 1 [name of First Owner] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (First Owner) 2 [name of Second Owner] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Second Owner) 3 [[name of First Owner’s Mortgagee] [of OR incorporated in England and Wales(company registration number [number]) whose registered office is at] [address] (First Owner’s Mortgagee)] 4 [[name of Second Owner’s Mortgagee] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Second Owner’s Mortgagee)] 1 Definitions In this Deed, the following definitions apply: Conduits • any media and associated equipment for conducting energy, data or substances; First Floor Projection • the part of the first floor of the First Property that projects over the ground floor of the Second Property as shown [edged OR coloured OR hatched [colour] on Plan...

Legal charge to secure overage payments

Legal charge to secure overage payments Date [date] Parties 1 [name of Buyer] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Buyer) 2 [name of Seller] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Seller) 1 Definitions In this Deed, the following definitions apply: [Affordable Housing • [social rented, affordable rented and intermediate subsidised housing available to persons who cannot afford to rent or buy housing generally available on the open market OR has the meaning given to that expression in Annex 2 of the National Planning Policy Framework current today];] Competent Authority • any: (a) local authority, highway authority, government department or other authority, body or person exercising powers under statute or by Royal Charter; or (b) utility service or supply company; Costs • are any costs, losses, damages and liabilities, whether or not resulting from claims, demands, actions or proceedings incurred in, or incidental to, or...

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When will a tenant have an interest that overrides a registered legal charge?

When will a tenant have an interest that overrides a registered legal charge? Overriding interests are interests which are binding on an estate in land that is registered at HM Land Registry, even though they do not appear on the register. They fall into two limited categories—those that override the first registration of land and those that override a registered disposition of Schedules 1 and 3 to the Land Registration Act 2002 (LRA 2002). The grant of a legal charge is a disposition that is compulsorily registerable under LRA 2002, s 27(2)(f) (in other words, after registration, it will be a ‘registered disposition’). LRA 2002, Sch 3 sets out the limited list of interests that override a registered disposition and therefore bind the disponee (in this case, the chargee). Following registration, the chargee is bound by any overriding interest that falls within LRA 2002, Sch 3 and which affected the land being charged immediately before the grant of the charge. The list of interests that override...

Does a right of pre-emption run with the land and bind all successors-in-title if it is not expressly set out in the transfer and then noted against the title as a restriction or notice?

Does a right of pre-emption run with the land and bind all successors-in-title if it is not expressly set out in the transfer and then noted against the title as a restriction or notice? A contractual right of pre-emption is an arrangement which requires a landowner, should it decide to sell all or part of its land, to offer it to the beneficiary of the right usually for a price and on terms determined in accordance with a formula set out in the pre-emption agreement. In Pritchard v Briggs, the Court of Appeal held that a right of pre-emption itself does not create an interest in land because it gives no immediate right to call for a conveyance. This meant that a pre-emption right was not an interest in land capable of protection by registration. However, the majority of the court suggested, obiter, that the right 'matures' into a proprietary interest when the obligation to make the offer arises. Following Pritchard v Briggs, a...