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Section 106 insights—part three—common obligations and common pitfalls, particularly agreed carbon targets and contributions, employment and training obligations, and Grampian obligations

A trust of open land for the benefit of the public does not endure where a disposal of that land is made in breach of the rules about disposals (R (Day) v Shropshire Council)

Property weekly highlights—14 January 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—14 January 2021

Finance Bill 2020—new clauses published on 25 June 2020

The following Employment news provides comprehensive and up to date legal information on Finance Bill 2020—new clauses published on 25 June 2020

Featured Property content

What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

Overreaching—sales by trustees of land

Broadly, the doctrine of overreaching enables purchasers (which includes tenants and mortgagees) in good faith for money or money’s worth to rely...

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...

Practice notes

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...

9th Nov

Practice notes

Benevolent funds

A benevolent fund is an institution, including a body of trustees, which holds funds on trust for the purpose of relieving poverty amongst a defined...

9th Nov

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

Pre-completion searches

Official search with priority—registered land or seller’s title pending first registrationHow and when to search?An official search with priority will...

9th Nov

Practice notes

Consecrated ground and burial grounds—issues for developers

Consecrated land—Church of EnglandFor the purposes of this section of this Practice Note, consecrated land means any land or building which has been...

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

Tacit relocation in commercial leases in Scotland

In Scotland, at common law, a lease does not actually end on the specified expiry date (ish) unless:•either party gives correct and timeous...

Produced in partnership with Kenneth S Gerber of Mitchells Roberton 12th Jan

Scottish Law

Practice notes

Derogation from grant and the covenant for quiet enjoyment

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet...

9th Nov

Precedents

Specific clauses for transfers—indemnity covenant

Panel 11 (transfer of whole)/panel 12 (transfer of part)—Additional provisions1Definitions[Lease•the lease particulars of which are set out in...

9th Nov

Practice notes

Implied easements—common law

There are three different ways by which an easement can be implied at common law:•necessity•intended use•the rule in Wheeldon v BurrowsThe implied...

9th Nov

Practice notes

Applying the proceeds of sale

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose...

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

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

What is a good and marketable title?

A good marketable title is shown where a seller is able to deduce a good title to the property he has contracted to sell. The seller is not required...

9th Nov

Precedents

Deed of release of covenants

This Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in England and Wales with company...

9th Nov

Most recent Q&As content

Q&As

Where there is a standard restriction registered against a title preventing 'dispositions' without complying with certain conditions, would the discharge and release of a charge over the property be a disposition that would require compliance with the restriction?

Section 40(1) of the Land Registration Act 2002 (LRA 2002) provides for entries in the register preventing or regulating the making of an entry in the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 15th Jan

Q&As

Where the outgoing tenant is no longer in occupation, but their furniture remains on the premises, can a landlord claim empty property relief for rating purposes?

We have assumed that:•the premises are in England•the outgoing tenant's lease has come to an endOccupied hereditaments—liabilityAn occupier of the...

15th Jan

Q&As

Where a positive covenant is not expressed to benefit any land, is it a personal covenant with the other party to the deed? For example, where it does not refer to successors-in-title, but the restrictive covenants in the same deed are expressed to benefit the covenantor’s successors-in-title.

Under the doctrine of privity of contract, the rights and liabilities created by a contract will bind the parties to it but no one else but, in...

14th Jan

Q&As

Where a house is converted into two flats and the leaseholders commenced collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993, reached the stage of agreeing terms and premium and intended to complete shortly, but one of the leaseholders (who had been acting via their power of attorney) has now died, is it possible to still complete the enfranchisement given that the statutory deadline is approaching, and if so what is the procedure for this?

The Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) enables qualifying leaseholders collectively to enfranchise and acquire the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 14th Jan

Q&As

Where an individual dies intestate with no surviving spouse or civil partner, but leaving a minor child and parents, can the child be ‘cleared off’ so that the deceased’s parents can take out the grant? If this is not possible, will somebody need to take grant of letters of administration on behalf of the minor?

The entitlement of a minor to a grant on intestacyThe factual situation that arises in this Q&A is where an individual dies intestate with no...

14th Jan

Q&As

A lease defines the ‘estate’ as ‘land now or formerly registered at HM Land Registry’ under a specified title number. The lease contains a reservation permitting the landlord to deal with the estate. If the landlord sells off part of the land, will that land no longer form part of the estate for the purposes of the lease?

When a plot of land is subject to a number of leases it is common for the landlord to reserve the right to deal with such parts of it as are not...

13th Jan

Q&As

Where a title is registered in joint names, do both or all the joint proprietors have to join in exercising a right or power conferred by the Land Registration Act 2002? Do all the joint proprietors have to join in an objection to an application to be registered as proprietor on the grounds of adverse possession?

Exercising owner’s powersA person who is registered as proprietor, or is entitled to be so registered, has owner’s powers under section 24 of the Land...

13th Jan

Q&As

A legal lease of a parking space was granted in 2004, but was not registered by the solicitors who were then acting. Does the lease have to be registered now before it can be assigned to a new buyer?

For the purposes of this Q&A, the lease of the parking space is for a term of more than seven years when granted in 2004.Section 4 of the Land...

12th Jan

Q&As

Can a (prospective) mortgagee (M) bring a negligence claim against solicitors who acted for it and the borrower (B) on a prospective purchase where the seller went into administration between exchange and completion and the solicitors had negligently failed to register an UN1 in relation to the sale contract?

In order to bring a claim in negligence against the solicitors, M will have to establish:•that it was owed a duty of care by the solicitors•that the...

12th Jan

Q&As

Where a (security) trust is intended to benefit future beneficiaries but initially only benefits one party who is both trustee and sole beneficiary is it arguable that the legal and beneficial interests do not merge? If they do merge, can the interests be demerged if there are new beneficiaries in the future (ie when the sole lender sells down the loan) by a contemporaneous declaration by the trustee that it holds the property on the terms of the trust?

We refer you to the following Practice Note which you may find useful for your purposes: The security agent and security trust provisions.It is quite...

12th Jan

Q&As

Is there a minimum number of trustees needed for a trust of land? Section 27 of the Law of Property Act 1925 states that two are needed for a valid receipt of purchase monies but while the property remains unsold, is one trustee able to act or should another be appointed?

Where there is more than one beneficial owner of real property, or where the beneficial owner differs from the legal owner, a trust of land will...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 12th Jan

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...

12th Jan

Q&As

Is it possible for a mortgagee to create a sub-charge over its security and have the same registered at the Land Registry without notice to the mortgagor registered proprietor of the property?

A sub-charge is a registerable disposition under section 27(3)(b) of the Land Registration Act 2002 (LRA 2002). See also LRA 2002, s 53.LRA 2002, s...

12th Jan

Q&As

Do the 'ipso facto' provisions of the Corporate Insolvency and Governance Act 2020 apply to a lease, ie is a landlord a supplier of goods or services for the purposes of the Act?

On 26 June 2020, the Corporate Insolvency and Governance Act 2020 (CIGA 2020) inserted section 233B into the Insolvency Act 1986 (IA 1986). Section...

11th Jan

COVID-19

Q&As

A landowner is entering into a wayleave agreement. While being described as an 'agreement' the document contains no consideration and provides for execution as a deed. If the agreement provides for nominal consideration, can it be signed as an agreement rather than a deed? Is there a particular legal reason why a utility provider would prefer a deed to an agreement?

A wayleave agreement is a form of agreement between a landowner and a utility supply company allowing the latter to place equipment on or through the...

8th Jan

Q&As

Where the tenant of a long commercial lease dies, does the tenancy automatically terminate or does it vest in the tenant’s personal representatives?

A long lease (ie one for an initial term of at least seven years) is a registrable interest in land. ‘Real estate’, as defined by section 3 of the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Jan

Q&As

The owner of an estate road is under obligation to maintain the road. Owners of the plots on the estate have a right to use the road but the transfers of the plots did not provide for any of the plot owners to contribute to maintenance. Is there any case law which would support the proposition that a plot owner exercising rights of way should be liable to contribute towards the expenses of maintaining the road in the absence of a positive covenant to do so?

A right of way is an easement for the benefit of one plot of land (the dominant tenement) over another plot of land (the servient tenement) and is...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Jan

Q&As

What legislation protects priority habitats? What powers does Natural England have over priority habitat which has not been designated a site of special and scientific interest, special protection area or special areas of conservation? Does it have control over how the land should be managed?

It is assumed that this query relates to habitats in England.Defining priority habitatsPriority natural habitat is defined under the Habitats...

Produced in partnership with Hannah Payne of Browne Jacobson 8th Jan

Q&As

A landowner proposes to undertake works on his land which involve excavation, the foundations of which will encroach onto the adjoining owner's land by one metre. It is not clear whether the foundations comprise 'special foundations' as defined in section 20 of Party Wall etc Act 1996. If the landowner obtains the adjoining property owner's consent, does section 6 of the Party Wall etc Act 1996 allow the landowner to construct the foundations in the absence of any other rights to access the adjoining owner's property?

Notice requirements in respect of excavations are outlined in section 6 of the Party Wall etc Act 1996 (PWA 1996), and in particular, they deal with...

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 8th Jan

Q&As

When drafting a contractual licence to occupy, is there any legal issue or risk for either party if the licence period: is expressed to start in the future (say a few days after completion of the licence), or has already expired and the licence is completed to regularise the period of use?

A contractual licence to occupy is a personal contractual agreement allowing the licensee to occupy premises on a non-exclusive basis, usually for a...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Jan