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Property weekly highlights—4 March 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—4 March 2021

Spring Budget 2021—views from the market

The following Private Client news provides comprehensive and up to date legal information on Spring Budget 2021—views from the market

Factors to consider on a statutory footpath diversion are not exhaustive (The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs)

The following Local Government news provides comprehensive and up to date legal information on Factors to consider on a statutory footpath diversion are not exhaustive (The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs)

Failing to set out basic allegations leads to strike out in insolvency proceedings (Sampathkumar v Wildwood CR)

The following Property Disputes news provides comprehensive and up to date legal information on Failing to set out basic allegations leads to strike out in insolvency proceedings (Sampathkumar v Wildwood CR)

Featured Property content

The Standard Conditions of Sale (5th edition: 2018 revision)—a guide to the main provisions

The Standard Conditions of Sale (SCS), currently in their 5th edition (2018 revision), are a set of standard conditions which are commonly...

Title guarantee and covenants for title

On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title...

Resulting trusts

Resulting trusts represent one of the three types of trust which do not require to be declared or evidenced in writing. The others are constructive...

Equitable mortgages and equitable charges—general principles and registered land

Nature of mortgages and chargesMortgages and charges are distinct forms of security. A mortgage can be legal or equitable and involves the transfer of...

Practice notes

Manorial rights

Manorial rights are relics of the feudal system of land tenure. They can still exist in relation to land that:•is former copyhold land, or•was...

9th Nov

Practice notes

Remedies for breach of restrictive covenants

Damages or injunction — the testThe primary remedy for breach of a restrictive covenant is a permanent injunction to restrain the breach. However, the...

9th Nov

Practice notes

Without prejudice and subject to contract

Subject to contractIf a party who strikes a bargain wishes to make it clear that it does not intend to enter into a binding contract until a formal...

9th Nov

Practice notes

Headline rents

What is a headline rent?In a falling market, landlords frequently offer tenants financial inducements to take a lease in order to maintain the level...

9th Nov

Practice notes

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.Not every...

9th Nov

Practice notes

Oversailing

TrespassTrespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the airspace above it....

9th Nov

Practice notes

Letter/certificate of non-crystallisation in property transactions

What is a letter of non-crystallisation?A letter of non-crystallisation is required by a buyer’s/lender’s solicitor to confirm that:•a floating charge...

9th Nov

Practice notes

Fixtures and fittings

When transferring an interest in land, any fixtures form part of the land and are transferred with it, unless there is express provision to the...

9th Nov

Precedents

Grant of a right for overhanging eaves

1 The Grantor grants to the Grantee the right for the Grantee and his successors in title as owners or occupiers for the time being of...

9th Nov

Practice notes

Rent suspension or cesser

Generally, the tenant remains liable for the rent even though the premises have become unusable. Consequently, leases normally contain a provision...

9th Nov

Practice notes

Contract races

The Solicitors Regulation Authority’s (SRA) Handbook (SRA Handbook 2011) which contains the Solicitors Regulation Authority’s Code of Conduct (SRA...

9th Nov

In-house

Precedents

Rent Review Memorandum

Rent Review MemorandumLandlord•[insert full name of Landlord] [of [insert address] OR incorporated in England and Wales with company registration...

9th Nov

Practice notes

A review of Standard Commercial Property Conditions (Third Edition) and practical tips

The Third EditionThe third edition of the Standard Commercial Property Conditions was published on 27 April 2017. It is an update to Standard...

9th Nov

Practice notes

Conditional contracts—property

Contracts are often drafted on the basis that a condition or conditions must be satisfied before completion takes place (a condition precedent)....

9th Nov

Practice notes

Enquiries before contract

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the COVID-19 outbreak....

9th Nov

Practice notes

Double funding

Brexit: The UK left the EU on 31 January 2020. This has implications for the schemes providing for agricultural subsidies in England and Wales, which...

9th Nov

Most recent Commercial real estate finance content

Practice notes

Flood reinsurance—the Flood Re scheme

Background to the schemeThe Association of British Insurers (ABI) and the government had an agreement, known as the Statement of Principles (SoP), in...

Produced in partnership with Groundsure and Burges Salmon 8th Feb

Practice notes

Assignment by a funder in construction projects

Banks and other funders frequently take an assignment of the benefit of the suite of construction documents in respect of a development as an...

Produced in partnership with Maxwell Winward 5th Feb

Practice notes

Assignment of a collateral warranty

This Practice Note focuses on the assignment of collateral warranties (see Practice Note: What are collateral warranties?). For more detailed guidance...

5th Feb

Q&As

Where a property is owned as beneficial joint tenants (X and Y) and was made subject to an interim charging order against one of the joint tenants (X) (with an equitable charge over X's beneficial interest), if the property was later transferred for value to Y as the sole legal owner (being subject to a legal mortgage), does the earlier equitable charge over X's beneficial interest take priority over the later legal mortgage?

An interim charging order grants to a court on the application of a judgment creditor the discretion to charge the interest of a judgment debtor in a...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 5th Feb

Q&As

What is the procedure to amend a deed (a debenture in this example), with the amendment being minor in nature not extending or restricting the nature and extent of the charge (so including the title number of a property which has already been described in the debenture), which has already been registered at Companies House but has not yet been registered at Land Registry?

In this Q&A it appears that a company intends to create a charge. Under Part 25 of the Companies Act 2006 (CA 2006) (as amended by the Companies...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 5th Feb

Q&As

A landowner (A) has agreed with an adjoining landowner (B) to undertake works on the adjoining land. B insists that A gives to him a legal charge over A’s land to secure performance of the obligation to carry out the works. The legal charge is to be released on completion of the works. Do you have a form of legal charge that is appropriate to secure A's obligations?

A first consideration should be to enquire why B is seeking a legal charge. Is it to ensure the work is done? To allow B to carry out the works in...

5th Feb

Q&As

Where a purchaser (company) has entered into a legal charge as a way of securing overage sums, should this be registered at Companies House?

Part 25 of the Companies Act 2006 (CA 2006) governs the procedure for a company to register at Companies House a charge that it has created over its...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 5th Feb

Q&As

Historically, there was an advantage for a debtor in entering into an equitable charge rather than a legal mortgage because the equitable charge did not attract stamp duty. When and how did this advantage cease?

The most common type of security in respect of borrowing is a legal mortgage. A legal mortgage will be registered at HM Land Registry and will rank in...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 5th Feb

Q&As

Where a charity, registered at Companies House and with the Charity Commission purchases property to serve as its head office, with the aid of a commercial mortgage, must the charge be registered at Companies House in the usual way?

Security over land that is created by a UK company is registrable at Companies House. This is the case regardless of whether the security is created...

5th Feb

Q&As

A chargor (an individual) is granting a legal charge to a chargee (a company). Can an employee of the chargee witness the signature of the chargor?

There does not appear to be any evidence that an employee of the chargee cannot witness the chargor’s signature.Practice Note: Property deeds—valid...

5th Feb

Q&As

A freehold owner wants to develop commercial units on part of his land. There are offices on the rest of the land with all services and accesses coming from the highway, which do not cross the land that is to be charged. None of the services or accesses to the land to be charged will cross the land already built on and no rights/easements will need to be granted or reserved. Can the landowner charge the part of the land that is to be developed to the bank to fund the development?

Charging of part of land often presents an issue for funders. The central concern is whether, on enforcement, the funder would be able to sell off...

5th Feb

Q&As

Does a legal mortgage over property have to be signed by both chargor and chargee, or only the chargee?

The case of Eagle Star Insurance Company Limited v Green illustrates that a legal mortgage of land...

5th Feb

Q&As

A and B are owners of a registered property as joint tenants. Can an equitable charge be created between A and B (owners) and A (lender) or does section 23 of the Land Registration Act 2002 prevent this?

Section 23 of the Land Registration Act 2002 (LRA 2002) states that:•owner’s powers in relation to a registered estate consist of:◦power to make a...

5th Feb

Q&As

Is it possible to refer to two properties on one legal charge?

It is possible to refer to two properties on one legal charge. By way of example, see Precedent: Real property mortgage: single company...

5th Feb

Q&As

Are there any general principles regarding retaining rent deposits following forfeiture? If it will be difficult for a landlord to re-let, can it offset any lost rent against the rent deposit?

For the purposes of this Q&A, we have assumed the rent deposit is in relation to a commercial property.The rent deposit deedA rent deposit is a sum of...

5th Feb

Q&As

Should a potential lender have any concerns about the enforceability an arrangement to share the profits of the sale of a property in return for the advance of a loan sum to a family member which is secured by way of a second legal mortgage?

Huge numbers of legal disputes could be avoided by the parties to loan agreements committing these to writing and providing for security. A charge on...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 5th Feb

Q&As

Can obligations be protected with a legal charge if there is no monetary value in the obligation being secured?

In Santley v Wilde, Lindley M.R. stated:‘…a mortgage is a conveyance of land…as a security for the payment of a debt or the discharge of some other...

Produced in partnership with Desmond Kilcoyne 5th Feb

Q&As

What is the post April 2013 procedure for applying for an extension of time to register a charge at Companies House? What are the requirements and what is the court fee?

Charges granted by a company should be registered. The relevant law was amended in April 2013 with the insertion of a new Part 25 into the Companies...

Produced in partnership with David Nicholls of Landmark Chambers 5th Feb

Q&As

Can a further education corporation established under the Further and Higher Education Act 1992 take a loan and grant security over its land by registered charge?

Further education corporationsFurther education corporations are corporate entities incorporated pursuant to either section 15 or section 16 of the...

5th Feb

Q&As

Does a lease, where the freehold title is subject to an HM Land Registry restriction requiring consent of the chargee for a disposition, require the same consent and compliance with the restriction for an extension of the term pursuant to enfranchisement legislation?

As set out in Practice Note: The right to an extended lease—flats:'….the right is expressed as the tenant being granted an extended lease, the actual...

5th Feb