Property Law and

Practice
DRAFTING = SGS3 (Sale contract), SGS5 (TR1) or SGS8 (Repair clause)
*CHECK GET SDLT RATES FOR UNREGISTERED LAND
KEY TERMS
Mortgagor Owner of property who gives mortgage to lender in return for
funds (i.e. borrower)
Mortgagee Person/institution accepting mortgage as security in return for
lending funds (i.e. lender)
Title Term of ownership of land; can be legal or equitable
Person with the Benefit (PWB) Landowner who benefits from an
easement over anothers land
Official Copies Copies of title registers & deeds (Land Registry (LR) holds
originals)
- Can be used in transactions & admissible in Court as if originals
- LR guarantees all info on Official Copies is accurate at time & date stated
on them
Anyone who suffers loss as result of inaccuracy in them is entitled to
compensation from LR

In standard format, divided into 3 sections:

(1) Property Register Describes the estate & any rights benefiting it
(2) Proprietorship Register Explains title (I.e. who owns property &
restrictions dealing c. it)

(3) Charges Register Buyer bound by interests registered on charges

register
I.e. restrictive covenants/ leases/ mortgages
Index Map Map, based on Ordnance Survey (OS) maps, held by LR, showing
every registered property & applications for 1st registration
- Can be searched by submitting SIM to LR for fee
CON29R; CON29O; CON29M; CON29DW Local Authority Searches =
submit to local authority to find out info about property
- Normally 1 form used & solicitor chooses which searches to carry out; O,
M & DR refer to particular sections of form
- Not all searches will be carried out (to save costs)
LLC1 Local Land Charges Search= another method by which solicitors
discover info re property
Standard Conditions of Sale (SCS) Precedent contract often used to sell
residential properties
Standard Commercial Property Conditions (SCPC) ^^ commercial
properties
Stamp Duty Land Tax (SDLT) Tax paid to HMRC on value of land sold on
completion of sale

CLLS City of London Law Society; issue precedent documents

I.e. CLLS Certificate of Title = industry standard certificate summarising
propertys title, any search results & leases Lenders may require this as a precondition of granting a mortgage
Land Registry (LR) Body which administers registered freehold & longleases
Central Land Charges (CLC) Registry Body which administers certain
charges registered over unregistered land (N.B doesnt administer unregistered
land itself)
Registered Land Land the title of which (along c. any charges over it) has
been registered c. LR
N.B Registration of all land became compulsory on 1/12/90 across England &
Wales
BUT compulsory first registration came into force at earlier dates in certain
regions
- Compulsory First Registration any previously unregistered land sold on/
after this date shouldve been registered c. LR once sale was completed
Unregistered Land All land was originally unregistered & title was proved
through the production of deeds, conveyances & other proof of ownership. Some
land will not have been sold since compulsory 1 st registration came into force &
may therefore still be unregistered
Personal Representative (PR) Executor (/if not named in willadministrator)
of deceaseds estate
Trustee-in-Bankruptcy (T-in-B) T appointed to administer the affairs &
assets of a bankrupt
Joint Tenants (JTs) Where land owned by 2 + people; can be owned by way
of joint tenancy or tenancy-in-common
- JTs own land under joint tenancy each owner has an undivided interest
in property
- To sell their interest all owners must agree to sell the entirety of their
interest
- Right of survivorship when 1 owner dies, their interest passes to
remaining owner(s)
- Certain events (i.e. bankruptcy) can cause joint tenancy to sever into
tenancy-in-common
Tenants-in-Common (TiCs) TiCs own their land under a tenancy-incommon each owner has a divisible, quantifiable interest in the property
- TiC is free to transfer their interest to another (either during lifetime or
under will) w/o having to seek consent of other TiCs
Caveat emptor let the buyer beware Buyer of property is under duty to
look for issues & (loosely speaking) may not have any remedy re obvious defects
he doesnt bother to inspect
BUT N.B See remedies re freehold sale
Assignor Tenant who assigns their interest in a lease to another
- Sub-Tenants can also assign, as can Sub-Sub-Tenants etc.
Assignee Someone who receives Assignors (Tenants) interest & thus
becomes new T
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May also see Assignee referred to (depending on no. of assignments that

have taken place) as the Second Tenant & the Assignor referred to as the
Tenant / 1st Tenant
Sub-Tenant Person who rents from Tenant under a sub-lease, where T in turn
is renting from L
- Tenant would be Sub-Tenants immediate Landlord
LEASEHOLD SECTION
Use Purpose for which property is used
Licence Document evidencing consent / permission & terms of which it is
given
- Creates privity of contract b/w all parties to it
Privity of Contract Contractual relationship b/w all parties that agree to
terms of same contract
Privity of Estate Relationship b/w immediate parties that have an interest in
the same land, even where there is no privity of contract

I.

Initial Stages of the Transaction / Investigating

Registered Titles

Buyers Concerns
Must ensure:
Seller has right to sell
Contract reflects the terms agreed
Physical condition is adequate (i.e. get survey)
Physical condition is adequate
The rights benefitting the property have been identified
3rd party rights have been identified
Sufficient funding available
Transaction meets their business requirements
Sellers Concerns
Realise funds
Transfer the property
Ensure contract reflects terms agreed
Ensure transaction meets business requirements
Lenders Concerns

Is the property marketable?

I.e. Does it have a good title free from adverse matters?
I.e. Is it free from any prior security interest?
Is the property readily saleable?
- Any restrictions in being able to sell the property?
- Any 3rd partys consent required to sell?
Can the property be used for its current purpose?
- For whatever the mortgagor wants to use it for?
- Other future uses if the lender were to take enforcement action & wanted to sell it
on?
Can the property interest over which security is being taken be terminated?
- Relevant for leasehold property:
Lender wont lend to purchase long residential lease which allows forfeiture on
insolvency of tenant as leasehold interest would cease to exist & lenders security
would be worthless
Value of the property asset
- Lender will check that the loan to value ratio isnt too high

Exam Technique:
IDENTIFY potential issue for client
EXPLAIN why those issues could cause problem given clients
proposals
SOLVE by providing potential solutions AND recommending most

To deduce title to registered land Need:

o Official copies of the register
o Title plan
o Copies of documents referred to in official copies IF relevant
rights not fully extracted

INVESTIGATING OFFICIAL COPIES

RUN THROUGH CHECKLIST OF POTENTIAL ISSUES:
PROPERTY REGISTER
Description of the property & rights benefitting it
o Description of the property what the client was expecting?
Freehold / Leasehold
Extent of the property accurate? Check Title plan /confirm c. client
County & district in which property situated
o Rights & Easements benefiting property
I.e. Right of Way
Adequate for client given its proposed use of land?
On foot / with vehicles?
If commercial client: is roadway wide enough to allow goods lorries
though?
Only certain time of day?
Run from property to public highway?
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Advise If inadequate, approach servient land owner to vary

the easement
Drainage & Water Is property connected to mains water &
public sewer?
New property? s104 Drainage Agreement in place?
Lateral drains should now have all been adopted by local utility
co.
- Advise Commercial: Ask utility supplier/ Residential:
Commission CON29DW
Easement from property to public drains?
- Advise If not adequate approach person who owns burdened
land to vary
- Registered if burdened land is registered? Caution against
first registration if burdened land is unregistered?
In need of Maintenance?
Who maintains / repairs?
Cost of maintenance / repair?
- Advise Could mean ongoing costs
Raise pre-contract enquiries c. seller
I.e. How much have they been charging)
Likely to be Adopted?
I.e. Private roads that will be adopted
Road charges Already been adopted/ future adoption by
Council? Check CON29R (enquiries of local authority)
N.B Frontagers (i.e. people whose land adjoins where its going to
be adopted; have to pay some of it)
- Advise Could mean incurring costs to bring road up to
standard required by council but after this client will save on
ongoing maintenance costs
o No rights?
Are any actually required?
o Registered Right?
Registered if burdened land is registered? Burden in Charges
Register
Unregistered Land Register Caution Against first
Registration over burdened land
-

New property? s38 Roads Agreement in place?

PROPRIETORSHIP REGISTER
Who owns the property & restrictions dealing with it
o Class of Title Title Absolute?
LRs guarantee as to the title strongest form of title landowner
can have, meaning they have strongest possible proof theyre
lawful owners of the land
Mortgagee requires client shows they have title absolute as precondition to loan

Advise Report if Qualified / Possessory/ Good Leasehold

(as may not be rightful owner)

Names & Details of Registered Proprietors Same person as

Seller?
Companies Company search for co. name, co. number &
solvency at CH
No change in co. name?
- Companies can execute deeds
Individual Must sign contract & transfer (see Drafting
Workbook)
Personal Rep Need to confirm identity of registered proprietor
& official copy of PRs Grant of Representation
PRs must then assent the sale in writing (use a deed) & all must
execute
N.B Payment to 1 PR overreaches any beneficial interests
Attorney Buyer needs to see certified copy of power of
attorney
Check it was validly granted, hasnt been revoked & this
property sale is within the attorneys powers
BUT N.B Sale can still be valid even if Buyer isnt aware powers
been revoked at some point
JTs Hold legal estate
Assume beneficial estate also held as HJT unless theres a
restriction on the Proprietorship Register (i.e. no disposition by a
sole proprietor)
If there is: means there has been a severance of the JT so
beneficial estate is now held as a TiC
How many of the JTs or TiCs are surviving?
-

All JTs alive All must execute deed

All TiCs alive All must execute deed
1 surviving JT Survivor can execute as he has both LT &
beneficial interest vested in him; but LR need to see Death
Certificate (/ certified copy) for others
1 surviving TiC Purchaser can overreach all beneficial
interest if 2nd T is appointed & purchase monies paid to
surviving TiC & 2nd T
Exception if theres a PR No need to appoint another T to
overreach
N.B LR need to see both death certificate(s) of other TiC(s) &
deed of appointment of 2nd T, if relevant

Restrictions
TiC the restriction applies if they are tenants in common, NOT
JTs
Lender if this restriction is present then the mortgagees
consent will not be required as the mortgage will at any rate be
discharged on completion.
Indemnity Covenant (relevant for PCs in Charges Register)

CHARGES REGISTER
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Buyer bound by interests registered on charges register & leases & mortgages
o Restrictive Covenants
Do facts indicate current breach by seller? Future breach by
buyer?
I.e. Extension?
WAS CONSENT GIVEN BY PWB (or PERSONS WB)????
Remedies for breach:
Options depend on age of covenant & whether its past/
future breach
o Restrictive Covenant Insurance (easier if past breach)
o Consent / Release / Modification of covenant by PWB
o Upper Tribunal Lands Chamber (to remove the cov.)
Which is best on the facts (N.B Use same remedy if past &
future breach, and beware that if seek consent from PWB,
they may sue if you are going to be in breach)
If insurance PCR ISSUE can your firm arrange insurance
and still be in compliance with s19 (1) FSMA?
o Positive Covenants Indemnity covenant given by previous
owners in proprietorship register?
If so, PC can bind the buyer
SCPC 6.6.4 & SCS 4.6.4 Buyer must give indemnity
covenant in the Transfer (the wording of which is usually
agreed in the contract)
If no IC, then PC cant bind
If PCs bind:
Current/ Past breach by seller?
o Require seller to remedy breach / reduce price?
o If breach irremediable, possibility of insurance? Release
from PWB?
Future breach by buyer?
o Possibility of enforcement?
o Insurance / Release from PWB?
NB. If seller indicates PWB might give consent for a
price: means theyve already been approached, so
insurance would be void
POTENTIAL SOLUTIONS
Depend on when breach took place & hold old covenant is:
Past breach where covenant is >50 years old = take out
insurance & dont tell PWB of breach
Past breach where covenant is <50 years old = seek PWBs
consent
Intend to breach in future = seek consent of PWB
Any (where PWB wont give consent) Go to Lands Tribunal
(s84 LPA 1925) to have covenant discharged
N.B Last resort, as takes long time & expensive & tribunal may
decide against
o Easements burdening property
I.e. Rights of way over land enjoyed by neighbour
- Advise Client as to nature &/ extent
o Leases over the land
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Advise Could be bound by them & so become a landlord

on purchase
Mortgage Undertaking from Sellers solicitor? (N.B Dont confuse
c. lease wording)
Seller must discharge mortgage using DS1 / Electronic Discharge
(ED)/ e-DS1
Need undertaking from sellers solicitor to forward the discharge
monies to the lender once received from buyers solicitor AND to
forward the DS1 (evidence of e-DS1) once received
Otherwise Buyer could be bound by mortgage
Need 1 PER mortgage
Mortgage receipted if unregistered title
DS3 is used for discharge of mortgage over part of the land in title.
-

II.

Pre-Contract Searches, Enquiries and Planning

LOOK OVER THE OVERLAP AND SPECIFICS OF LLC1 & CON29R

Whats known about the property?

What planning permissions should be in place?
If planning permission not in place/ condition breached is LA in time limit
for enforcement?
Is planning permission required for what buyer wants to do c. property?
Local Authority Search consists of 2 separate searches:
o Local land charges search on LLC1; &
o Enquiries of the Local Authority on Con29R
& (if some of the optional enquiries are raised) CON29O
Many searches can be done via NLIS (National Land Information Service)

ALWAYS:

Structural Inspection / Survey (by buyer / surveyor)

Pre-Contract Enquiries of seller (CPSEs for commercial property / SPIF
for residential)
o Elicits info that the seller isnt bound by law to disclose
o Seller must avoid verbal/ written misrepresentation
This can also be by conduct (i.e. Seller mustnt conceal defects
Gordon v Selico)
o Caveat emptor (let the buyer be aware) for physical defects SCPC
3.2.1 (SCS 3.2.1) but seller must avoid misrepresentation
o PCR point:
If seller asks solicitor to mislead or misrepresent to buyer
solicitor must act with integrity!!
Local Land Charges Search (LLC1)
o Look for:
Planning Permissions granted
Enforcement/ Stop Notices
Conservation Area
Listed Building
Tree Preservation Order
Smoke Control Order
Know how to advise buyer if these are present
Any breach of planning legislation may become buyers problem
when own land
Local Authority Enquiries (CON29R)
o Building Regulations Approvals
o Road adopted?
o Traffic Schemes
o Contamination
o Any planning permissions applied for, granted or refused

So buyer knows about planning history of property & area in

general
Highways Search (Letter to relevant LA)
Is property / right of way which property has benefit of, abutting a
highway?
As buyer needs to access highway to access property! If gap b/w
highway & property, check to ensure right of way which abuts
highway & buyer has benefit of it
Drainage & Water Search (Commercial Drainage & Water for commercial
property / CON 29 DW for residence)
o Reveals whether private or public services, if metered etc.
So buyer knows whether land is connected to mains (& who
supplies if not)
Desktop Environmental Search I.e. Homecheck
o Reveals contamination, flood risk etc.
As potential liability for contaminated land is very expensive
(even if didnt cause)
Index Map Search (SIM)
o Reveals any other title numbers registered against the property (i.e.
if any leases have been registered)
o Confirms boundaries in comparison c. title plan
o Can search neighbouring properties
So buyer knows about boundaries & who owns neighbouring land
Chancel Repair Search (I.e Chancel Check; or by personal search of Nat.
Archives)
o Liability to contribute to C of E church maintenance only until
October 2013
Not knowing about liability is no defence & could be hefty
SOMETIMES :
Optional Enquiries of the Local Authority; CON 29O Enquiries
o Public footpaths
o Common land, village greens - Commons Registration Act enquiry
CON 29O, Q22
Ensures buyer knows of all public land in area & issues c. land use
Elton Hall: Enquiries 5 & 22 of Con 290 relevant
Coal Mining Search (CON 29M)
Subsidence /structural defects could cause problems/ expense
Elton Hall: Frontier Miners Cottages suggest local mining.

Company Search seller/buyer

o Check company name, number, not insolvent, able to sell, fixed &
floating charges
So buyer can ensure the co. selling is authorised to sell/ property
int subject to any insolvency proceedings
Elton Hall: Buying from a co.

Waterways / Environment Agency

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If river passing through property, will show maintenance obligations

for riverbanks, rights of way along tow paths, fishing rights,
drainage rights, water abstraction rights, liability for flooding
Buyer will be buying property subject to any rights in existence &
if no rights, buyer is responsible for maintaining river banks &
would be obliged to keep river free from obstruction

Full Environmental Survey (follow to Desktop if it raised concerns)

Phase I = Surveyor. Phase II = Soil samples
o Liability for clean-up costs
Principle is that the polluter pays, but subsequent owners
may also be liable
To decide how to apportion the clean-up/ buyer may not
want to buy at all
Elton Hall: Desktop search raised issue of contamination &
Phase I survey revealed no evidence

Utilities searches (NLIS)

o If certain utilities arent there, buyer can set them up

Planning

s57 Town & Country Planning Act 1990 Sets out fundamental principle
of planning law: Planning permission is required for development
- s55 Development = building works & material
changes of use

Exam Technique:

Have you any info suggesting past/future breaches of planning?

N.B Just because planning consent obtained, doesnt mean PWBs consent
obtained
Then check LLC1 to see if right permission has been granted

Building Operations:

Planning Permission?
o Covered by the GPDO
(General Permitted Development Order 1995?
I.e. Pre-granted development & thus dont need to apply for
permission
Building Regs Approval?
Listed Building Consent? (for internal or external work)
Conservation area consent for demolition or works to trees?
o GPDO may be disapplied in a Conservation area need to check
LLC1 & 3.10 Con21R
Consent of PWB of RC on title?

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Change of Use:

Planning permission required for developments: building works/ material

change of use
Covered by Use Classes Order 1987 / GPDO
Planning permission not required where the change of use is within the
same class
(I.e. Hairdressers Shop = A1 A1)
OR where permitted by GPDO
(I.e. Restaurant Clothes shop = A3 A1, which is permitted)
Listed Building Consent needed if works affect its character (inc. partial
demolition)
(N.B This is in addition to any planning permission required)
Conservation Area means planning permission required for even minor
works (& would have required Conservation Area Consent up until 1/10/13)
inc. trees as well as all kind of demolition N.B ARTICLE 4 DIRECTION
DISAPPLYING ELEMENTS OF THE GPDO
If client is carrying out building works which involve demolition & tree felling
- Building Regulations Consent
- Planning permission (unless part 31 GPDO)
- Listed building consent
- Conservation Area Consent (re tree felling)
Time Limits:
s7 (1) (b) Country and Town Planning Act
Carrying out building works w/o planning permission:
4 years from substantial completion of works
Breach of condition in planning permission:
10 years from date of implementation
Material change of use:
10 years from date of change
(N.B. change of use to a single dwelling house = 4 years from date of
change)
Building Regulations:
No time limit for enforcement (Cottingham)
Conservation Area / Listed Building Consents
No time limit for enforcement
Otherwise LA may enforce

Occupiers
Check for Occupiers via inspection & pre-contract enquiries of seller
Equitable Interests:

Occupiers written consent to sale / special condition in contract

Appoint second trustee to overreach equitable interest

11

Spouses statutory right to occupy FLA 1996:

Protected by notice on the Charges Register prior to completion (or Class F

CLC for unregistered title)
Spouse to consent to sale and remove notice prior to completion (i.e.
remove the Class F)

Leasehold interests:

Is there security of tenure?

Should the lease have been registered?

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III.

Drafting the Contract

Sellers solicitor prepares 1st draft (using Heads of Terms) & sends to buyers
solicitor
Buyers solicitor checks contract:
- Accords c. Heads of Terms & buyers instructions
- Deals c. issues arising from buyers investigation of title (SGS 1) & results
of buyers searches (SGS 2) & from sellers replies to pre-contract
enquiries (SGS 2)
Buyers solicitor drafts the TR1
s2 LP(MP)A 89 Contracts for sale of land must be:
- In writing;
- All relevant terms must be incorporated into the document
- Signed
Para 2; Sch 3 LRA 2002 Person in actual occupation of a property will,
except in certain circumstances, bind the purchaser of that property
ss1 & 2 C(RTP)A 99 Virtually always excluded from contracts for the sale
of property
ss1, 2, 3, 6(1) & 6(2) LP(MP)A 94 Deals c. different forms of title
guarantee
Standard Conditions
Standard Conditions of Sale (SCS) Use in residential (& some v. simple
commercial) transactions
Standard Commercial Property Conditions (SCPC) Used in more complex
property transactions
Special Conditions
Amend/ exclude any standard conditions which arent appropriate to specific
transaction
I.e. On or before exchange of contracts, the Buyer shall SCPC 1.1.1 shall not apply

Tailor-made contracts More often used in commercial properties (as more to

negotiate)
- Almost always incorporates the SCPC
Standard (pre-printed) contracts More often used in Residential contracts
If do use tailor-made contract Still incorporate SCS
I.e. This Contract incorporates the Standard Conditions of Sale (Fifth
Edition) save as excluded or varied below
Incorporates many of the boiler-plate clauses which dont need to be
redrafted each time & which are much quicker to negotiate because
solicitors are familiar c. their contents
N.B SCPC 8.1.1 & SCS 6.1.1 arent very important, because most of the
time the parties will agree a completion date b/w them, this will be written
into the contract on exchange
BUT remaining provisions of conditions 8 & 6 respectively are very
important
Sellers duty of disclosure is dealt with in SCPC 3.1.2
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The Contract
DRAFTING
Front Page:
Beware of typing/ drafting errors
o Misspelt or incorrect parties/property
Purchase Price/Deposit/Contents Price (if separate) / Possible
SDLT saving?
o BEWARE FRAUD on HMRC
o Do NOT include VAT (if payable)

1. Date
- Leave blank until exchange, when it will be inserted
2. Seller
- All full names & their addresses
- Must have LT to property & all legal estate owners must be parties to the
contract
BUT maximum of 4 names (regardless of how many own the land in equity
(i.e. as JTs)
- Must also have legal personality (i.e. not a partnership)
If a partnership (which isnt an LLP): Max 4 partners holding LT must
enter into contract
If a company: include company name & number
3. Buyer
- All full names & their addresses
If a partnership (which isnt an LLP): Max 4 partners holding LT must
enter into contract
If a company: include company name & number
4. Property (Freehold/ Leasehold)
- Full & correct description (i.e. may include rights attached to the land)
Registered Title: Description should reflect wording in Property
Register
Unregistered Title: Description may be by reference to a conveyances
in epitome of title
Sales of Part: Must include plan c. land sold edged in red & land
retained edged blue
-

If incorrectly described, buyer may have remedy for misrepresentation &

breach of contract (SCPC 9.1 / SCS 7.1)
SCPC 9.1.2: Damages or material difference b/w description/ value of
property as represented & as it is
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SCPC 9.1.3: Rescission where buyer has to accept property which differs
substantially (in quality, quantity or tenure) from that which error/
omission led them to expect
5. Title Number/ Root of Title
Registered Title: Insert title number for the property (& delete words
root of title)
Unregistered Title: Insert root of title for property (& delete title
number)
6. Specified Incumbrances
N.B In practise (for registered land) Specified incumbrances always
defined by reference to entries in the charges register
I.e. the matters set out in entry 1 of the Charges Register of title number
[xxxx]
- Make reference to all the entries, except the sellers mortgage
Sellers common law duty of disclosure
- Only has to disclose latent incumbrances
(I.e. Covenants or easements burdening the land; something that burdens
the land & may restrict the owner/ occupier from using the land in a
certain way/ restrict the ability to sell by requiring 3 rd party consent etc.) &
defects in title
- No duty to disclose patent incumbrances (obvious on inspection) or
physical defects (i.e. subsidence)
Matters which the buyer is deemed to buy the property subject
to (under SCS & SCPC)
SCS (3.1.2) & SCPC (3.1.2) Incumbrances the property is being sold
subject to
- If in doubt, sellers solicitor will include it in:
Specified Incumbrances section on front page of standard form of contract
(if using one); or as express special condition if a tailor made contract
- SCPC/ SCS (3.1.2 (d)) Buyer buys free from any mortgage the seller has
on the property
Exclude existing mortgages
7. Defects in Title
Any proof of title that is missing
I.e. Seller might be missing a conveyance which proves that the previous
owner that sold the house to the Seller in the first place had the LT to do
so
- Solve any defects in title by Faruqi v English clause:

the seller has no knowledge of the whereabouts of the Conveyance dates [xxx] referred to
in the Charges Register of title number [xxx] or the matters contained in or referred to in
that document & the Buyer shall purchase the Property with full knowledge of this and
shall raise no requisition on this

8. Full/ limited title guarantee (defined in ss2 & 3 LP (MP) A 1994)

Guarantee of sellers quality of ownership (title) to property (given in the
purchase deed)
If seller is an owner/occupier = Full title guarantee

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Guarantee that the seller has the right to sell the property
& property is free from all charges & incumbrances & other
rights exercisable by 3rd parties (other than Specified
Incumbrances/ ones it couldnt reasonably have known
about)
Applies even if sellers are JTs or seller is landlord of a fully
let property
Generally given: position under SCS 4.6.2 (unless front
page is amended) & SCPC 6.6.2 (unless special condition is
added in so check)
If seller is trustee/ PR/ inherited&never lived there = Limited
title guarantee
Not guarantee that property is free from all 3td party rights,
but instead that seller hasnt created any incumbrances since
the last sale/ isnt aware anybody else has
If seller is a squatter = No title guarantee
Means Buyer has no remedy against the Seller if theres a
later difficulty c. title of purchased property

9. Date & time of day for completion

Otherwise dont know if its late
SCPC 8.1: completion takes place 20 working days after exchange
(though never relied on in practise; automatically overruled by agreed
completion date in special condition)
SCPC 8.1.2/ SCS 6.1.2: Must take place by 2pm (though may be
overruled by special condition)
If buyer is late completing: it must pay compensation
Under SCPC: seller wouldnt have to pay compensation for late
completing but may be amended
Failure to Complete: SCPC 8.1.1 If parties fail to complete, the seller
isnt automatically free to offer the property to another buyer
BUT
N.B Time can be made of the essence by serving a notice to complete,
giving the receiving party 10 working days within which to complete
Delay in Completion: Compensation will be payable
10.
Contract Rate
Shouldnt be penal & should be linked to base rate
- Time not of the essence until notice to complete is served:
Before served: only remedy is for late completion;
Compensation is payable at the (annual) contract rate
- SCS & SCPC 1.1.1 (e) If no specific figure is inserted
(i.e. at 3%/4%/5% per annum above the base rate from
time to time of one of the clearing banks) the Law
Societys interest rate applies
11.
Purchase price & SDLT
Stamp Duty Land Tax rate found at back of Property book
As chattels excluded from tax, can separate contents of property &
purchase price will be apportioned (lowering SDLT)
16

BUT can only do so up to the max. market value of chattels (otherwise

fraud on HMRC (Orsman v HMRC))
Price paid on completion
12.
Deposit
Amount: SCPC 2.2.1 Buyer pays 10% deposit on exchange (but can
be amended by Special Conditions) BUT parties can agree whatever
deposit they choose
N.B neither standard conditions include any deposit for contents/chattels
see SCS 2.2.1
Capacity in which the deposit is held: SCPC 2.2.2 & SCS 2.2.6
Deposit normally paid to sellers solicitor to be held as stakeholder (i.e.
as custodian to both parties & kept by seller if contract is rescinded)
though can be held by solicitor as agent for the seller (& thus available to
seller from moment of exchange)
Balance = Price chattels price deposit
13.
Contents
Fixture included unless specifically excluded from sale
& vica verca for chattels
One of the pre-printed special conditions at 3 (a) & (b) should be deleted
according to whether the sale includes the contents of the property
14.
Pre-printed Special Conditions
Incorporating the standard conditions
Contents & Fixtures
Representations
Non-owning occupiers
Standard form commercial contract

15.
Additional Special Conditions
N.B If amending/ drafting special condition (i.e. amending/ overriding SCS/
SCPC)
WHO is to do WHAT by WHEN?
Points arising from investigation of official copies or
searches, I.e.:
o Restrictive covenant indemnity policy to be purchased before
completion by seller
o Seller to obtain missing planning permission / building regularisation
certificate etc. by completion
o Faruqi v English clause needed?
If defect in title (i.e. a lost conveyance) avoids Sellers
obligation to answer/ satisfy and requisitions/enquiries about
it.
For SCPC 3.1.2 must ensure incumbrances include entry
giving rise to the need for Faruqi clause
New covenants/ easements created on sales of part

17

Include wording of indemnity covenant from buyer to seller

(SCPC 6.6.4 / SCS 4.6.4)
o If 6.6.4 is incorporated, this is an obligation.
o It should be included in the transfer (6.6.4(a))
Matters specifically agreed
Chattels included / Fixtures Removed
o N.B If no special conditions:
Chattels are excluded (i.e. garden statue, painting above
mantelpiece)
Fixtures are included (i.e. fireplaces, fitted wardrobes)
Exclude rights under the Contracts (Rights of Third Parties) Act
1999 from persons who are not party to the contract (see SCS 1.6
for wording)
Vacant possession (Standard Special condition / delete alternative)
I.e. Assurance that any occupier waives their interest & will vacate the
property
- Get separate document from occupier as well
Vary time for completion (i.e. Conditions 6.1.2 & 6.1.3 shall take effect
as if the time specified in them were 12:00pm rather than 2:00pm
Outline who bears risk of liability to take out insurance & when they do
so
N.B Completion goes ahead even if special condition not complied with (but Buyer
has remedy of damages/ rescission for breach of contract/ misrepresentation)
Only way to make completion condition on fulfilment of special condition is to
specifically state that completion wont occur until condition is complied with
I.e. Planning permission granted/ financing not sorted
May need to add this in & specify a long-stop date for condition to be met

16.
Value Added Tax (VAT)
Not payable by buyer in addition to purchase price (SCS/SCPC 1.4)
UNLESS
Sale of new commercial buildings (i.e. 3 years of less from date
of practical completion)
Standard rated for VAT (i.e. 20%)
N.B Purchase price in contract must be expressed to be exclusive of VAT
(& if buyer doesnt meet cost of VAT then burden will fall on seller)
Sale of old commercial buildings (i.e. over 3 years)
S9 VATA: Exempt supply therefore it is exempt from VAT
Subject to..
Sellers option of tax
Sale then becomes a standard rate supply
You could then charge VAT on the purchase price & then recover on VAT
already paid
(I.e. plumbers/ builders etc.) You cant charge VAT unless you pay VAT
Transfer of a Going Concern (TOGC)

18

Contract for a Sale of Part

Description plan
Mortgagees consent / Form DS3
Express easements to benefit / burden the buyer / seller: exclude implied
easements
Express covenants to impose on buyer / seller
When explaining special conditions state who (i.e. buyer or seller) is to
what (e.g. provide document or deal with issue), and by when (e.g. on or
before the completion date Completion)

IV.

Professional Conduct Issues, Finance & Exchange

of Contracts

Professional Conduct
SRA Chapter 3 Conflicts of Interests
SRA Glossary
-Client Conflict = Owing separate duties to act in best interests of 2 + clients re the
same/ a related matter
& those duties conflict/ theres a significant risk those duties will conflict
N.B P (4) You must act in the best interests of each client.
N.B O (1.2) Provide services to clients in manner which protects their interests in their matter,
subject to admin of justice
IB (1.25) Unlikely to comply c. Principles (i.e. P (4)) or achieve Outcome (O (1.2)) IF:
Act for client when instructions given by someone else or by 1 client when acting
jointly for others
(Unless satisfied the person providing instructions has the authority to so on
behalf of all the others)

Acting for both buyer & seller

You can (albeit rarely) act for both buyer & seller of property
IB (3.14) Default position: Acting for more than 1 party in a property
transaction = unlikely youve satisfied Chapter 3 outcomes;
Esp. O (3.5) not permitted to act for more than 1 client where theres a
client conflict/ significant risk of a client conflict
IB (3.3) Further supports this: You shouldnt ordinarily act for both
parties if you need to negotiate on matters of substance (i.e. price/ rate of
interest etc. b/w buyer & seller)
IB (3.2) Further: Shouldnt act for parties whose interests in direct
conflict (i.e. C & D)
BUT these property-specific provisions are non-mandatory IBs (& thus arent
actual prohibitions)
19

 Thus v. occasionally possible to act for both buyer & seller

- O (3.6) & O (3.7) exceptions have some limited application (see table)

Confidentiality / Disclosure / Mortgage Fraud

SRA Chapter 4 Confidentiality & Disclosure
N.B Confidentiality continues regardless of end of retainer or clients death
Must be reconciled c. duty of disclosure to clients (limited to info which is material to my clients
matter)
If not possible: stop acting for client to whom I cant disclose the material info. (v. limited
exceptions)
O (4.1) Keep clients affairs confidential unless disclosure required by law
O (4.2) must make client aware of all info. Material to the retainer

O (4.3) if duty of confidentiality to 1 client conflicts c. duty of disclosure to

another: confidentiality takes precedence
- IB (4.5) Likely to comply if I dont act for HSBC where M is a client for whom I
hold confidential info. which is material to HSBC, unless the info. can be protected
(but too late, as already acting for HSBC?)

Finance
BANK FUNDING
Certificate of Title

20

Buyer provides Seller c. Certificate of Title (akin to Report on Title; Doc 43) just
pre- Completion (serving as formal request for mortgage money)
- Seller releases funding on day of completion (14th Nov; as per document 21)
BUT N.B For Commercial Mortgage
- Buyer provides Certificate or Title DRAFT before exchange of contracts
- Wont normally commit to exchange UNTIL lender confirms funds to be advanced
on completion date

BECAUSE buyer could otherwise be committed to a contract without mortgage

funds guaranteed!
PCR RESTRICTIONS ON GIVING FINANCIAL ADVICE RE CLIENTS
PROPOSED MORTGAGE
FSMA (RAO) 2000

S19 (1) No person may carry on regulated activities in UK/ purport to do so unless
authorised to or exempt
S22 (1) An activity is regulated if its of a specified kind carried on by way of business &
(a) Relates to an investment of a specified kind; or
(b) In the case of an activity of a kind which is also specified for the purposes of this
paragraph, is carried on in relation to property of any kind
RAO
Part 2 Specified Activities
Article 53A Advising (a borrower) on regulated mortgage contracts = a specified activity
Article 61 Entering/ Administering a regulated mortgage contract as lender = specified activity

Article 61 (3) (a) 3 Elements to a REGULATED MORTGAGE CONTRACT

(i)
Lender provides credit to Borrower
(ii)
Borrowers obligation to repay is secured by a 1st legal mortgage on land; &
(iii)
At least 40% of the land is used (/ intended to be used) for Borrowers dwelling
(or if borrower is T, then a Bs dwelling)

Pre-Exchange
BUYERS SOLICITOR
1) Searches & Enquiries Are all issues dealt with &/ incorporated into
the contract?
2) Survey Has Buyer carried out & satisfied?
3) Deposit Have we received cleared funds into the Buyers client
account?
Refer to SCS 2.2.5 if funds depend upon successful completion of a
chain of residential properties
4) Mortgage Finance If needed: Buyer received binding offer of finance
&formally accepted?
Get confirmation from lender that funds will be forthcoming on
completion
- Request for this is providing mortgagee c. CLLS certificate
N.B Any conduct issues if acting for Buyer & mortgagee
21

N.B If any of the price (except deposit) is also from Buyer: check Buyer has
funds to do so & cover our fees
5) Receive engrossed contract from Sellers solicitor
6) Buyer signs their part of the contract (in person)
Solicitor explains contract to Buyer & takes instructions on completion
date
Buyer gives authority to exchange
SELLERS SOLICITOR
1) Current Mortgage Get provisional redemption figure from old
mortgagee to check proceeds of sale will be sufficient to discharge it (N.B
Risk of negative equity)
2) Engross the contract & send to Buyers solicitor
3) Seller signs their part of the contract (in person)
Solicitor explains contract to Seller & takes instructions on completion
date
Seller gives authority to exchange

Exchange
1) In person
Solicitors meet, date own client contract, hand over to other (+ cheque for deposit from
Buyer), make file note to record this & inform clients
2) By post
Buyers solicitor posts signed contract & cheque to Sellers solicitor; Sellers solicitor
posts Sellers signed contract on receipt (this is the deemed exchange date)

3) By phone under Law Society Formula B Most common form of

exchange
Each solicitor has clients part of contract & agree to exchange during a
telephone call

FORMULA B
BEFORE EXCHANGE
Ensure lender is satisfied c. CLLS certificate of title
Ensure client wishes to exchange
Ensure client has placed cleared funds into firms client account (B)
Request cheque from firms accounts department which is made out to Sellers solicitor
(B)
Ensure client has signed their part of the contract
Final check that signed contract is correct & Buyers solicitor holds deposit
ON EXCHANGE
Telephone other solicitor
Check the signed contracts are identical (usually by asking whether each holds same
version number)
Solicitors confirm they hold clients signed part of contract (& B solicitor confirms he
holds deposit)
Completion date agreed & inserted
EXCHANGE: Exchange words (set out in Formula B) said & exchange
- Each undertakes to hold clients contract to the others order (i.e.
ownership exchanged) & each undertakes to send contract(for Bs
solicitor: the deposit) to the other solicitor that day
AFTER EXCHANGE
Make file/ attendance note to record that exchange has taken place
Send your part of the contract to other solicitor immediately

22

In practice, the deposit is often telegraphed to sellers solicitor in advance

of exchange
At common law, if property burns down b/w exchange & completion,
buyers liable to repair

RISKS BETWEEN EXCHANGE & COMPLETION (NOT IN WRITTEN NOTES)

RISK & INSURANCE
Passes to Buyer on EXCHANGE, who should immediately insure the property
unless the contract states otherwise as a special condition (SCS 5.1)
Seller still owes duty of care to Buyer to exercise reasonable care to keep the
property in the same state as at exchange

If Seller doesnt will be liable in damages for deliberate damage &

negligence under common law

OCCUPATION BY BUYER BEFORE COMPLETION

If Buyer moves in before completion might decide not to complete & simply
squat
Seller then needs to seek a possession order to remove him
To prevent Buyer losing incentive to complete: Buyer should be stated to be a
licensee
SCS 5.2 ensures for this residential contracts
BUT
Under SCPS special condition must be inserted
UPON DEATH / INSOLVENCY OF EITHER PARTY
Contract will still be valid
BUT
Responsibility for completing passes to PRs/TiBs of deceased/ insolvent party
If they do not complete, same breach of contract remedies will still be available
against them
Also note:
- Dead Seller: PRs need a grant of representation & death certificate(s) must
be produced as evidence for the LR
TiCs: Need to be overreached by 2nd T
JTs: Survivor entitled to sell alone
- Dead Buyer: PRs need to complete transaction once grant of
representation is obtained
Survivor of any JTs remains bound & must complete
BUT bank may withdraw their mortgage offer (leaving JT/ PR w/o sufficient
funds)
- Bankrupt Seller: Sellers assets vest in TiB so Buyer must deal c. TiC
instead
- Bankrupt Buyer: May be impossible for TiB to complete, esp. if mortgage
offer is withdrawn
BUT TiB has right to disclaim any contracts it considers onerous
23

24

V.

Completion and Remedies

Drafting TR1
PREPARING FOR COMPLETION
Buyers solicitor usually prepares purchase deed (& sends to sellers
solicitor for approval see SCPC 6.3.2 / SCS 4.3.2)
- s52 LPA 1925 Confirms Transfer must be in deed
N.B If drafting Transfer, need:
i.
Official copies of sellers title (i.e. for title number & list of specified
incumbrances)
ii.
The Contract (i.e. for correct names of buyer & seller)

TRANSFER:
o Transfer
o Transfer
o Transfer
o Transfer
o Transfer

of
of
of
of
of

whole of registered freehold title = TR1

part of registered freehold title = TP1
whole of registered leasehold title = TR1
portfolio of registered titles = TR5
unregistered title = TR1 or conveyance

Drafting TR1
Box 11 Covenants etc.
o Include:
Indemnity Covenant
C(RTP)A99 exclusion
Box 12 Execution
o ALWAYS executed by seller
o SOMETIMES executed by buyer where hes giving an indemnity
covenant, where more than 1 person/where making a declaration of
trust
o Executed as a deed! 2 authorised signatories each

N.B Pre-completion, buyer solicitor sends seller solicitor Completion Information &
Undertakings Form (TA13) (Doc 73) c. practical arrangements so completion runs
smoothly
- I.e. Where to collect keys/ completion location/ Docs seller will send to buyers
solicitor after completion/ balance due on completion/ Undertaking for release
of sellers mortgage/ Confirmation that no changes to replies to enquiries (if
use in-house-style form, rather than TA13)
List charges(s) which will be discharged on completion
Undertake to remit monies to each lender so each charge can be discharged
by lender
Undertake to forward evidence of discharge (DS1) upon receipt from
lender

Priority Periods for Pre-Completion searches:

o OS1 search = 30 working days (from date of search)
Checks no change to official copies since date of the official
copies the buyers solicitor investigated title from
-

Search from date for Elton Hall = 9 September 2014 from 13:04:06

Priority period = Period in which register is frozen & buyer

takes free of any 3rd party interests (i.e. lease) that sought to
25

be registered in that period (provided Buyer completes & registers

purchase within period)
N.B If registration doesnt occur within that period & 3 rd party tries to lodge
an interest, itll take effect immediately upon expiry of priority period

o
o

o
-

Solvency Search
K15 (Central Land Charges) or

K16 (bankruptcy) search = 15 working

days
K16 search only needed if buyer is individual who is mortgaging
property & solicitor also acting for the lender
I.e. Bankruptcy search No need against a seller of registered
land
Company Search on buyer & seller

Doc 74 (OS1 result) shows no adverse entries made against Elton title to property since official copies dated 9 September 2014
Doc 75 shows no entries relating to solvency & status of Elton entered

N.B Pre-completion finances:

Buyers solicitor must:
Send buyer a bill of costs (legal fees) & financial statement
Total cost of transaction (inc. sale price, money payable for chattels, estate agent
fees etc.)
N.B Funds discussed c. client well in advance to give time for co.s internal procedures/
banking procedures & required notices/ funds to clear through buyers solicitors
account etc.
Following buyers solicitor providing any lender c. draft certificate of title (preexchange), (s)he should now contact lender to ensure money will arrive in good time
for day of completion

Sellers solicitor must:

1) Reply to Completion Information & Undertakings Form
See SCPC 6.3.1 / SCS 4.3.1 within 4 working days after receiving them
2) Prepare Completion Statement to send to buyers solicitor & request
redemption statement from sellers lender(s) (if any)
Completion statement = Shows total amount required from Buyer to complete &
how its calculated:
Inc. chattels less deposit paid at exchange +/- apportionments
I.e. insurance premium where buyer decides Io take over sellers policy)

Redemption figure = Amount required by lender to pay-off (redeem) the

sellers mortgage

Mortgage Redemption:
o Sellers solicitor asked to provide undertaking to:
Pay the lender the money required to redeem the
mortgage
N.B Seller shouldnt say they will discharge mortgage as
only bank can
Forward the DS1 (evidencing the discharge) immediately
upon receipt

3) Approve (/ amend) Transfer & arrange for it to be executed by the seller

Once Transfer agreed, buyers solicitor forwards engrossment of Transfer (i.e. final
version to be printed out for execution for seller)

COMPLETION
Fixed completion date is formally agreed b/w parties at exchange
Normal method of completion = Law Societys Code for Completion by
Post
26

Buyers solicitor must ensure:

- Satisfactory answers to Completion Information & Undertakings Form
(c. relevant undertakings by sellers solicitor) given
- TR1 signed by seller (& buyer if appropriate)
- Obtained all original documents from sellers solicitor on completion (if
registered title)
- Pay completion monies via bank transfer (CHAPS) to sellers solicitors
client account
Sellers solicitor must ensure (once accounts department notifies sellers
solicitor about receipt of completion monies) following are assembled to give to
buyers solicitor:
- TR1 executed & dated
- Any title/ other deeds re property are held by seller (i.e. deed of
easement)
- Sellers solicitors undertaking:
1) To remit funds required to redeem the charge (i.e. figure referred to
in lenders redemption statement)
2) To forward the DS1 discharge confirmation within a short, specified
timeframe
- Originals of planning permissions/ building regulation approvals/
guarantees
- Receipts for payment of apportionment & receipts for any chattels
purchased separately
POST-COMPLETION
Sellers Solicitor
(i)
(ii)
(iii)
(iv)
(v)
(vi)

Reports to client
Date Transfer (TR1)
Arranges for lenders charge to be discharged (sending redemption funds to
lender)
Send client balance of sale proceeds
Prepare notices to 3rd parties (i.e. if sale is subject to leases, Tenants needs to
know who their new Landlord is)
Forward DS1 (/ED/ e-DS1 confirmation) to Buyers solicitor

Buyers Solicitor
(i)
(ii)
(iii)
(iv)
(v)

Report to client
Date the Legal Charge (mortgage)
Company buyer; perfection of security (i.e. register any mortgage created by
co. @ CH) (21 days)
Pay stamp duty land tax (SDLT), lodge Land Transaction Return (30 days)
Register Transfer of registered title at Land Registry (30 working days)

(vi)
(vii)

Title Information Document

Custody of title documents

Apply for first registration of an unregistered title = 2 months

27

POST COMPLETION MATTERS TO BE CARRIED OUT BY BUYERS

SOLICITOR
Step to be
taken

Register a
new co.
charge

Pay SDLT &

file Land
Transaction
Return

Register at

Form

MR01

SDLT
esubmis
sion
form /
SDLT1

Other
Documents
need to be
sent with it

Cheque for
13 fee (10
if online) &
certified
copy of
debenture /
mortgage /
charge

Cheque for
SDLT if not
sent by TT
or online

Fee & AP1;

TR1

Where
form &
docume
nts are
sent

CH

HMRC

Deadline

Within 21
days from
the day
after the
date of
completio
n

Within 30
days of
effective
date (i.e.
completio
n)
Within
priority

Consequences of
failure to miss
relevant deadline

Prejudices lenders
security
Security would be
void against liquidator/
administrator/ other
creditor
Loan becomes
repayable on demand &
any officer in default will
be liable to a fine

Penalty for late

submission of form
Possible interest
liability for late payment
Cant register title at
LR w/o SDLT5 certificate
3rd party interests may
be able to obtain priority
28

Land
Registry:
Discharge of
sellers
charge;
transfer;
buyers
charge

AP1

certified
copy;
Certified
copy of
charge;
(Certified
copy of
change of
name
certificate);
SDLT5
certificate;
DS1/Evidenc
e of
discharge

LR

period of
OS1
search,
(i.e. 30
working
days from
date of
OS1
search
result)

if registered in
meantime
Until registration of
transfer, buyer only has
ET & not LT

REMEDIES
Common law remedies available for:
- Delay in completion
- Failure to complete
- Misrepresentation
BUT Standard Conditions are preferred because they have certain
advantages
MISREPRESENTATION (SCPC 9.1 / SCS 7.1)

If theres a material difference b/w property as represented by seller & the

actual property: Buyer is entitled to damages
If the error or omission is as a result of fraud or recklessness; OR
If theres a substantial difference in the quality/quantity/tenure of the
property:
Buyer is entitled to rescind
No need to prove reliance
Did the misrepresentation result from fraud / recklessness?
Is there a material substantial difference?
Which is the most suitable remedy?

DELAY (SCPC 9.3 / SCS 7.2)

If 1 partys late in completing purchase (i.e. fail to complete by time&date

stated in contract) Non-defaulting party is entitled to remedies
Contractual remedies
o SCS 7.2 Non-defaulting party entitled to compensation:
29

Calculated at interest rate set out in contract (usually 4%

above base rate)
No need to prove loss
If buyers in default: Compensation is payable on the
purchase price, less the deposit paid on exchange;
If sellers in default: Compensation is payable in total
amount
o SCPC 9.3 Compensation as of right only if the BUYERs in default
- If sellers in default: buyer must sue seller in common law to
recover losses
Theres no contractual compensation available
Compensation payable on purchase price, less the deposit
paid on exchange
Compensation is payable for each day of default, inc. the day
of default & inc. non-business days
N.B If after 2pm: then next business day
Seller doesnt have to prove this loss
BUT if sellers losses are greater than amount recoverable by
way of compensation under the contract, then the seller must
recover the additional amount by way of court action.
o Seller may consider serving notice to complete in accordance c.
SCPC 8.8 / SCS 6.8
N.B Compensation unavailable under SPC/ SCS if contract is rescinded
N.B If actual loss exceeds compensation payable: non-defaulting party
may still obtain damages for any additional sums due
FAILURE TO COMPLETE (SCPC 8.8 / SCS 6.8)
If theres a delay in completion Non-defaulting party should consider
serving notice to complete under SCPC 8.8 / SCS 6.8 providing theyre
ready, able & willing to complete
(N.B Can serve notice even if latest time for completion hasnt passed as
can service notice on or after date of completion)
Notice may be served at any time from & including contractual
completion date, even if the time for completion has not yet passed
Effect of valid service is to make time of the essence
- Notice requires parties to complete within 10 working days of service
of the notice (excluding day of service)
Look at SCPC / SCS 1.3 deemed times of service to calculate time of
actual service of notice
Failure to comply c. a notice to complete entitles seller to forfeit the
deposit, resell the property & claim damages for any additional loss
Interest for late completion under SCPC 9.3 / SCS 7.2 isnt payable in
case of rescission
If sellers the defaulting party: Buyers entitled to repayment of deposit +
accrued interest
Rescission is governed by SCPC 9.5 & 9.6 / SCS 7.4 & 7.5

30

VI.

Investigating Title to Unregistered Land & First

Registration

EPITOME OF TITLE = Set of copies of relevant documents c. cover sheet

listing them in date order
I.e. Root of Title (Conveyance to current seller)
I.e. Copies of legal mortgages (&proof of discharge if already done; but normally
done@ completion)
I.e. Copies of documents:
-

Referred to in Root of Title

(s45 LPA so long as Post-Root document;
OR s45 (1)(b)(i) (iii) Pre-Root document BUT

Power of Attorney under which any doc in epitome has been executed
Referred to by doc in epitome (i.e. reference to covenants imposed by pre-root
conveyance)
Relevant to land (i.e. deeds of easements/ leases)
Relevant where seller didnt acquire title via conveyance (assent, grant of probate, deed of
gift, death certificate)
Evidencing change of estate owners name (marriage certificate/deed poll/stat. declaration)
DONT NEED TO INCLUDE:
Pre-root documents unless theyre referred to in the Root
Post-Root documents unless needed to show chain b/w name of person in Root and current
seller
Docs re equitable interests which will be overreached on completion
Copies of leases which have expired & no longer affect title
Central Land Charges search certificate
(unless National Conveyancing Protocol adopted)

DEDUCING TITLE= Seller showing documents on Epitome of Title to Buyer

- Seller only needs to give originals to Buyer on completion
- Buyer then sends originals to Land Registry so can be registered
BUYERS AIMS WHEN INVESTIGATING TITLE
- Identify extent of property & rights benefitting it (i.e. right of way)
& other peoples rights over it (i.e. any restrictive covenants)
- Ensure seller has good title (i.e. right to sell it!)
& Buyer can use property for intended purpose
As documentation more diverse (than if registered) must know what to look for in
each document
CONSIDER:
Documentation & Procedural Concerns
- Ensure sellers ownership via a root of title & all subsequent docs
properly executed etc.
The Property, its benefits & burdens
Caution required if unusual sellers
- I.e. Personal representatives/ survivor of joint owners
Title Investigation of Unregistered Land
S Searches
C Co-ownership
R Root of Title
A Ad Valorem/PD Stamps
31

P Positive, restrictive covenants; other incumbrances

P PRs, unusual sellers
E Execution
D Discharge of mortgages

ROOT OF TITLE
1st determine the Root so you can navigate around the Epitome
To prove ownership to unregistered land, must show unbroken chain of ownership back
to root of title

Is conveyance dated prior to 1/12/90?

-

Will necessarily be older than 15 year requirement

Check seller didnt acquire property via conveyance post-date of

compulsory 1st reg.
N.B Property may be in area that was subject to compulsory registration
pre- 1/12/90
N.B if acquired title via assent/ deed of gift (i.e. not for value) pre 1/04/98; wouldnt trigger 1st
registration & epitome must include official copy of grant of probate/ deed of gift as well as previous
conveyance of sale/ legal mortgage

Adequate description? (usually by a plan included c. root of title)

- In root conveyance/ earlier conveyance (in Epitome) referred to in the
Root

Deals c. whole legal & beneficial interest (I.e. By deed & validly stamped &
executed)
-

If executed by:
(a) Individual
Pre 31/06/90: signed, sealed, delivered & witnessed
Post 31/06/90: signed in presence of witness attesting to signature & delivered
(b) Company
Pre 31/06/90: Re articles (so long as co. seal affixed in presence of 2 Ds (/1D&1CS)
Post 31/06/90: Affixing co. seal witnessed by 2Ds (/1D&1CS)
(c) Power of Attorney

Casts no doubt on sellers title

- I.e. no missing powers of attorney when seller in root document
executed in this way
Or no official copy grant of probate where sale in root document was by
executor(s)
- Any change in their name must be investigated (perhaps requiring
marriage cert./ Certificate of Change of Name if seller is co.)

N.B Deed of gift or an assent isnt acceptable as root of title

SEARCHES
32

 Names
o Search against correct names of all estate owners since 1926
mentioned in Epitome, even if pre-root
o Remember to search against the current seller from the date of
purchase to date of sale using K15 (full Land Charges Search)
N.B s25 LPA buyer will receive compensation if registered charge
binding the buyer isnt discovered by buyers solicitor
Dates
o Search:
From acquisition year (or earliest they could have acquired/1926
if unknown)
To the year of disposal (or latest could have disposed if not
known)
If a dead co-owner, search to the date of disposal by the survivor
o Make sure each Conveyance is completed within the protection
period (15 working days) of the search
If it hasnt completed: a new search period is needed.
Entries in common Central Land Charges searches
o C(i) / C(iv) / D(ii) / F see s2 LCA 1972
C(i) Puisne Mortgage
I.e. 2nd/ subsequent legal mortgage
N.B First legal mortgage wont be registered, but Ill be
alerted by absence of title deeds (which will be with lender!)
C(iv) Estate Contract
I.e. Contract to buy land/an option/contract to have lease
granted over land)
D(ii) Restrictive Covenant
D(iii) Equitable Easement
F Spouses Right of Occupation
o If any Land Charges affecting the land are revealed in certificate of
search: buyers solicitor must obtain office copy of the Land
Charge, confirming charges subject matter/ document by which it
was created/ name & address of person who applied to register it &
who thus owned the land which has the benefit of land charge
o Obtain office copy of the entry of the application that gave rise to
the entry to check that it relates to the relevant conveyance & fill
the registration gap. If appropriate, sellers solicitor to arrange
cancellation of entry & supply cancellation certificate

CO-OWNERSHIP
JTs or TiCs?
If JTs Are they still? Check for memorandum of severance
If a co-owner has died:
Where a JT Can rely on LP(JT)A 1964 for unregistered land by:
o Obtaining official copy of death certificate
o Showing no memorandum of severance
33

Showing neither JT is bankrupt

(K15 / K16: Result on K17 if no entries, K18 If there
were)
o Survivor declares in TR1 theyre solely & beneficially
interested in the land
Where a TiC Must get:
o Official copy of death certificate
o Deed of appointment of 2nd trustee
o

Ad Valorem / PD Stamps
(ad valorem = according to value) (PD = Particulars Delivered)

As docs dealing c. land executed pre 1/12/03: wouldve been subjected to

stamp duty regime so must check all docs (deeds etc.) going to root of title
making sure correctly stamped
Ad valorem (circles) & / certificate of value required (AT LEAST 1;
MAYBE BOTH
Consideration

Ad valorem rate of
stamp duty

Certificate of
value?

Not over 60
000
Not over 250
000
Not over 500
000
Over 500
000

Nil

Yes

1%

Yes

3%

Yes

4%

No

P.D stamp (Particulars Delivered/ Produced) (square) ALWAYS required

if conveyance / transfer on sale of freehold or 7+ year lease
If conveyance is unstamped:
Buyer should insist (/ make special condition in contract) that seller
resolves issue
(& pays penalties & liabilities for late stamping, even if pre-root
document)
Seller cant contract out of this responsibility
Ideally conveyance should be stamped pre-exchange; certainly precompletion
If unstamped conveyance is the root of title: LR will refuse to
register buyers title until its been stamped (as title won'
If its not the root of title: LR wont refuse to register, but doc
cant be relied upon in court
POSITIVE & RESTRICTIVE COVENANTS, OTHER INCUMBRANCES
i. COVENANTS
34

If discover covenant in epitome: 1st give client notice!

1. Do they bind?
a. RCs must be registered as D(ii) Central Land
Charges (CLC) against the original covenantor
Will directly bind all successors in title to the
land
Doesnt need to be registered against name of
anyone whose bought property since
b. RCs, even if not registered as D(ii), may still
indirectly bind subsequent owners if seller gave
an indemnity covenant when it purchased
c. PCs may bind subsequent owners only if the
seller gave an indemnity when it purchased.
d. If seller gave indemnity covenant (for either PCs
or RCs), it can require inclusion of a special
condition in the contract that the buyer also
gives an indemnity covenant in purchase deed
(SCPC 6.6.4 or SCS 4.6.4)
2. If binding, proceed as c. registered land, i.e. consider
possible breaches & remedies

ii. EASEMENTS
If discover covenant in epitome: 1st give client notice
1. Benefit or burden?
2. Benefits the land being bought?
Check description in draft purchase deed accords c. property &
identifies rights to be expressly granted at time of sale
Check for easements already enjoyed by seller (by deed/ s62 LPA/
impliedly/ prescription/ under Wheeldon v Burrows)
3. Is it binding?
Do a SIM to see if either:
a caution against 1st registration is registered on neighbouring
land (if unregistered); or
its registered on the Charges Register of neighbouring land (if
registered)
4. If binding, check c. client:
a. Is benefit adequate?
b. Is burden acceptable?

2. PRs & UNUSUAL SELLERS

i. Sole owners death Personal representative is seller
s36 (6) AEA 1925 requires:
1. PRs state no previous disposal
2. No memo of previous disposal on grant of probate
3. Need to see official copy of grant of representation (i.e.
grant of probate)
BUT not essential to see death certificate
Memo of sale to buyer must be endorsed on grant of
representation
Sale by PR to self must be authorised by Will/
beneficiaries/ court order
35

ii. Transfer by PRs to beneficiary under the will

By way of assent
Must be in writing (s36 (4) AEA)
If covenants, must be by deed
1. Check whether memorandum of disposal on grant of
probate before assented
2. Should ensure that PRs endorse a memorandum of the
assent on the grant of probate this will also trigger
1st registration
3. Buyer must ensure ALL PRs executed, if forms part of
epitome
iii. Other unusual sellers
I.e. Companies Same checks as with registered land
3. EXECUTION
i. Individuals
1. Pre 31 July 1990 Sign, seal, deliver & witnessed
2. On/ after 31 July 1990 Sign as deed, delivered &
witnessed
ii. Companies
1. Pre 31 July 1990 Seal affixed in presence of
secretary & a director
2. On/ after 31 July 1990 Signed by:
- Director & secretary / 2 directors / 1 director in presence of
witness
4. DISCHARGE OF MORTGAGES
Buyer expects mortgage to be discharged before/ immediately after
completion
(& to obtain undertaking from sellers solicitor to remit the funds required
to redeem the charge & forward the receipted mortgage within specified
time frame)
- Should be done by separate deed of discharge (included in epitome)
OR
- Receipt will be endorsed on the mortgage deed itself
Has this been done?
5. APPLICATION FOR 1st REGISTRATION
i. Submit Form FR1 & title documents to LR within 2 months of
completion
UPDATE WITH MINOR CHANGES FOR POST COMPLETION MATTERS FROM
REGISTERED LAND TO UNREGISTERED LAND
I.E WHOLE OF EPITOME IS BEING SENT IN, WHOLE OF SEARCHES & ENQUIRIES,
CONTRACT, COMPLETION INFO & UNDERTAKINGS, TR1 &CERTIFIED COPY,
DEBENTURE & CERTIFIED COPY, COPY OF CERTIFICATE OF REGISTRATION, SDLT 5

1.
36

VII. Consolidation: Registered Property Transactions

in the Residential Context
Sales of Part
Title Matters
o Existing covenants?
Will bind seller & buyer usual remedies apply as for sales of
whole.
o Sellers mortgage?
Need to get lenders consent to sale & to creation of any
incumbrances over retained land. Bank will probably require
sale proceeds to discharge whole or part of mortgage.
For registered land: Discharge of whole = DS1; Discharge of
part = DS3
Deed of release or release of part for unregistered land
Matters to consider when agreeing terms:
o Description of land?
Must be written and a suitable plan must be agreed.
o Easements over the retained land to be granted to the
buyer:
Exclude all implied easements (under s. 62 LPA) for certainty.
Right of way (on foot or by vehicle?)
Right of drainage?
Any other rights?
o Easements over the property being sold to be reserved to
seller:
Right of way?
Right of drainage?
Any other rights? Common sense!
o Covenants to be imposed on buyer:
According to instructions, BUT:
New building to be in accordance with plans approved
by seller?
Buyer to erect and maintain boundary?
No business use (if residential)?
Not to obstruct right of way
o Covenants to be imposed on seller:
According to instructions/as negotiated
Protection
o Easements burdening sellers land must be registered in Charges
Register of sellers title / Property Register of buyers land.
o Easements benefitting the sellers land must be registered in
Property Register of sellers title / Charges Register of buyers land.
Purchase Deed:
o Purchase deed will be Form TP1 (drafted by sellers solicitor)
o With a Sale of Part you MUST refer to a plan
37

Buyer carries out OS2 pre-completion search if part being sold is

part of existing registered title

New Builds, Estates and Residential Property

In the sale of a newly built house on a newly developed estate, its normal
for the developers solicitor to prepare both the draft contract & purchase
deed (as the developer will want to ensure uniformity b/w the covenants
for each plot)
A structural guarantee is a form of insurance against defects, & the
developer will be issued c. instructions from the provider of the guarantee
as to how to develop the land
A separate structural guarantee will be provided to each buyer of each
new house
When acting for the purchaser, in relation to road maintenance, you will
need to check:
o That there are suitable obligations in the contract c. the developer
o That the developer has entered into an agreement c. the Local
Authority
o That such an agreement is supported by an appropriate bond or
guarantor which will provide protection in the case of the
developers insolvency
Be aware of PCR issues in respect of purchasers of residential properties:
o Are they buying as JTs or TiCs?
o Are you instructed by both clients? Are you satisfied that the sole
instructions are sufficient for both?
Where the sale is part of a chain:
o You need to rely on undertakings from the other solicitors in the
chain
o Its best to use Formula C for exchange
o If you release your contract to another solicitor in the chain until
4pm that day and the other solicitor rings back to exchange after
4pm but on the same working day then you are not obliged to
exchange

38

VIII. Grant of a Lease; Contents of a Lease I;

Landlords Remedies
Street v Mountford whether tenant/licensee has exclusive occupation is a
crucial factor when distinguishing lease from licence
Milmo v Carreras A subletting of a term equal to the whole of the remainder
of the mesne landlords term will take effect as an assignment
s149 (3) LPA 25 Reversionary lease taking effect more than 21 years after the
date of grant = void
s4 (1) LRA 2002 Lease granted for term exceeding 7 years must be registered
at Land Registry
N.B Its the tenant who signs the counter-part lease
TERMINOLOGY

Lease = Grant of a right to the exclusive possession of land for a

determinate term less than that which the grantor has himself in the land
I.e. Contract b/w Landlord (L) & Tenant (T) c. consideration of rent &/
covenants
Exclusive Possession = Distinguishes lease from licence
N.B Legal lease must be created by deed (s52 LPA) unless its for 3 years
or less (s54 (2))
Reversion = Interest in leasehold property retained by L
Once lease term has expired: full ownership reverts to L
Demise = Extent of the property let to the tenant
Term = Length of the lease
N.B Where term is expressed to be for 10 years from i.e. 12 May 2003
Lease begins at midnight b/w 12/13 May contractual expiry date = 12
May 2013
Terms = Covenants & conditions contained in lease
Merger = Termination of a lease where the term & the interest
immediately expectant on its determination are held by the same person
Grant = Creation of a new lease
Assignment = Sale of an existing lease
FRI Lease (Full Repairing & Insuring lease) = Institutional-quality clear
rent lease
I.e. L not paying running costs: T directly/ indirectly (through service
charge) pays upkeep & insurance
N.B Only some Ts c. strong bargaining power may be able to negotiate
deviations
Covenants:
o Absolute covenant = Absolute prohibition against doing
something
I.e. not to underlet
N.B Covenant still absolute, even if there are exceptions elsewhere
UNLESS exception arises out of a definition

39

Qualified covenant = Covenant not to do something w/o another

partys consent (usually the landlord)
I.e. not to underlet without the landlords consent
o Fully qualified covenant = Covenant not to do something w/o
another partys consent BUT that consent cant be unreasonably
withheld
I.e. not to underlet w/o landlords consent, such consent not to be
unreasonably withheld
Covenant Strength = Ts ability to pay sums under lease (i.e. proposed
T a good covenant?)
o

Ls PERSPECTIVE in Granting Lease

L may ask for Rent Deposit (esp. if worried about Covenant Strength)
- Paid prior to grant/ assignment of Ts lease held for duration & drawn on if T
defaults
- In separate deposit account charged to L
- If created pre- 26.12.03 & Co. T Charge must be registered at CH (s860 CA06)
BUT no longer necessary (though may be done as a precaution)
OR
L may require another party (a surety) to guarantee performance of Ts obligations
- Either from outgoing tenant (AGA) or parent company
Ts PERSPECTIVE in Leasing Premises
Wants:
- No restrictions in lease preventing it from using property for required purpose
- Rent doesnt rise too steeply/ no other onerous provisions
- Ensure it can sell/ assign lease if property no longer required (& form of lease is
marketable)
Commercial Lease Code STARTING POINT ON POSSIBLE lease clause
AMENDMENTS for T
- Voluntary so Ls initially reluctant to adopt (as favours balance b/w L & T) but
threat of legislative intervention & adverse market conditions making them
concede more
- Accompanied by Occupier Guide & Model Heads of Terms
- 10 recommendations
N.B T NEEDS TO CHECK Ls TITLE TO ENSURE:
- L HAS GOOD TITLE (& MARKETABLE)
- RESTRICTIVE COVENANT
- MORTGAGE OVER PROPERTY
Difference b/w Grant of Lease & Sale of Freehold
Documentation
Lease replaces purchase deed (TR1)
Drafted by Ls solicitor checked &/ amended by Ts solicitor who reports to T on terms
Attached to back of contract (known as Agreement for Lease) at exchange of contracts
Lease produced in engrossments (i.e. in duplicate)
Original signed by L
Counterpart signed by T
At completion 2 part are dated & each hands signed copy to the other
Pre-Completion Searches
If Ls title = registered, carry out Official Search of Register of Ls title (as in sale of fhold)
BUT
If taking lease of whole of Ls property search = OS1
If taking lease of part of Ls property search = OS2 (search of part)
If Ts lease doesnt need to be registered carry out searches w/o priority as no application needs to
be made to LR
If Ts lease does need to be registered search (giving 30 working days priority)

40

SDLT
Based on length of term/ amount of rent/ premium paid
Registration
Lease granted post 13 October 2003 Only need registration at LR if for more than 7 years
Different classes of title
Absolute =best possible
Good Leasehold = Ls title wasnt deduced at time lease was granted
Possessory = Granted where T is in occupation but no paperwork exists
Qualified = No other title can be granted

N.B

STRUCTURE OF LEASE
DATE OF GRANT / PARTIES
Check Date of Grant for old/ new lease under LT (C) A 1995)
DEFINITIONS
Lease of whole or Internal Demise? If latter Ensure envelope is properly defined
- Defined Terms (i.e. Insured Risks / Premises / Review Dates / Permitted
Use)
TERM / DEMISED PREMISES / RENT
Initial Rent may have increased as result of review
- Check Term (i.e. against Review Dates if expressed as anniversaries of term
commencement date)
- Demised Premises is related to extent of Ts responsibility under Repair
covenant
- What is reserved for Rent? See Definitions & Forfeiture Clause
TS COVENANTS (i.e. Repair/ Alienation/ User/ Alterations/ Insurance)
Is there a schedule of condition limiting tenants liability for repair?
Consider types of alienation covered & grades of prohibition (re upgrading effect of
ss19 (1)(a), 19 (1A)) (N.B NO UPGRADING EFFECT of s19 (3). Consider scope of permitted
use)
- Consider types of works covered, grades of prohibition & reinstatement
- Insurance provisions will be spread throughout lease: see also Definitions, Ls
Covenants, Ts Covenants, Provisos
LS COVENANTS (i.e. Quiet Enjoyment/ Services/ Insurance)
Ensure L gives covenant to provide services, if lease of part of premises on
estate
- Insurance provisions will be spread throughout lease: see also Definitions, Ls
Covenants, Ts Covenants, Provisos
PROVISOS (i.e. Forfeiture/ Rent Suspension/ LTA 1954)
Consider Ls Remedies for breach of Ts covenants
Is lease contracted out of LTA 1954?
- Check what is reserved as Rent & see Definitions for any Triggering Event
- Check against Loss of Rent Insurance under Insured Risks
RENT REVIEW SCHEDULE (Assumptions & Disregards)
- Check Ts Covenants & any other provisions in actual lease referred to in Rent
Review clause
SERVICE CHARGE SCHEDULE
- Check against Definitions, Ls Covenants & Demised Premises to determine
whether fair proportion of Ls expenses for services

41

DRAFTING LEASEHOLD CONTRACTS

WHEN DRAFTING CONTRACT: LOOK OUT FOR FOLLOWING ISSUES IF
ACTING FOR TENANT
N.B Some will be in later notes

REPAIR (SGS 8)
INSURANCE (SGS 8)
DEMISE (SGS 9)
RENT (SGS 9)
SERVICE CHARGE (SGS 9)
ALTERATIONS (SGS 9)
CHANGE OF USE (SGS 9)
RENT REVIEW (SGS 10)
ALIENATION (SGS 10)

Cross Reference any Definitions

I.e. Check that Premises & Insured Risks are consistent with each other such that
I can be clear as to what is covered by the Tenants insurers in event of damage
caused by an insured risk & what is covered by the landlords insurers

DEMISE
Physical extend of the premises let to the T & the duration (term) of lease
Premises
- Physical extent of premises let to T
If lease of entire property = street address (& Ls title number if property
registered)
If lease of part = internal envelope of property occupied by T (normally
accompanied by a plan)
- Internal Envelope Carefully drafted to exclude all external & structural
parts (as T will be under obligation to keep Property in repair)
- T should be granted a right to use the common parts (maintained by L)
elsewhere in lease
I.e. Reception areas/ lifts/ external areas
Term need not begin on same day as grant of lease
- Will often be stated to start on following quarter day
Security of Tenure Applies unless excluded under Landlord & Tenant Act
1954
Break clauses can be made subject to any conditions
REPAIR
Repair = Restoration by renewal or replacement of subsidiary parts of a whole
Recommendation 7 of Code
- Ts repairing obligations should be appropriate to length of term &
condition of Premises
- Ts should only be obliged to give premises back in condition they were at
its grant
42

Controversial & Ls reluctant to adopt!

Covenant to to put & keep / to put / to keep in repair = T is liable to put
property into repair, even if it wasnt in repair at the beginning of term (i.e.
even if took on a run-down property)
If representing T replace keep in repair / put in repair with
maintain
N.B L only likely to accept if T has excellent covenant strength &
bargaining position
T should employ surveyor to report on state of property & photograph it &
annex this Schedule of Condition to lease
Check Heads of Terms to see if repairing covenant has been limited by a
Schedule of Condition
Repairing covenant should be drafted to require T to maintain the
Premises in the state evidenced by the Schedule of Condition
Amend any repair clause (or yield up in repair at end of lease clause)
requiring Ls satisfaction, so T has to rebuild/ renew/ replace to the
satisfaction of the Ls surveyor, acting reasonably
Fixtures & fittings should only have to be replaced where it is beyond
economic repair & compromise re items which will be costly/impossible to
replace
Any Ts repair obligation should exclude damage caused by Insured
Risks so L is responsible for repairing damage caused by Insured Risks
- Otherwise if T had to pay for insurance under fully-repairing-andinsuring (FRI) lease as well as for the repairs which would be covered
by the insurance effectively pays twice
Check definition of Insured Risks to see that it covers everything necessary
Check who is to meet any shortfall in insurance monies following a claim
Check whether inherent defects arising from property design/ construction
excluded from clients repairing liability
Decorating interior (& exterior if lease of whole) T will not be
required to redecorate in the last year of the term if the T has
redecorated within the previous 12 months
- Typically T required to redecorate interior every 5 years
Check that a rent suspension period will kick in
INSURANCE
Recommendation 9insurance policy terms should be fair, reasonable &
represent value for money
Common in business leases: L insures whole development & recovers proportion
of cost from each T
- Ensure reputable insurer & ask to see copy of insurance policy prior to
grant/assignment
Define Insured Risks (I.e. Fire, flooding, riot, storm, burst pipes,
earthquakes)
Ensure:
- L covenants to insure against the Insured Risks;

43

(Will also want such other risks as the L may from time to time reasonably consider
necessary)

&
T covenants to pay insurance premium (/part of it if lease of part)

T wants insurance premium in names ensures both pay insurance proceeds jointly & T
avoids subrogation (where insurer acquires rights of L to pursue T for any losses he had
contributed towards)
BUT Rarely in both names so:

Check that insurer waives its rights of subrogation against T

Ensure theres a covenant for L to use any money paid out by insurer to
reinstate the property, & to make up any shortfall out of its own monies
- No common law duty to do so
Delete any term allowing L to use insurance proceeds as he deems
necessary
Ensure rent payments are suspended during damage/ rebuilds
I.e. if damage by an insured risk has caused the premises, or access to
them, to be unfit for use
& theres a longstop to terminate lease if L doesnt comply
-

L will want the insurance policy to cover loss of rent during this period
I.e. L insures for (& recovers cost from T) loss of rent for [3 years] where the
premises or access to them have been rendered unfit for use or occupation by
damage by an insured risk

FORFEITURE
If T doesnt comply c. T covenants in lease/ gets into financial difficulties L has
several remedies for removing T
- Remedies depend on breach / triggering circumstance
Commercial lease normally contains proviso enabling L to re-enter demised
premises & prematurely end lease on breach by T of any of its covenants /
certain specified events
I.e. Arrears for rent for 14 / 21 days after becoming payable
I.e. Breach of any covenant, agreement or condition in lease
I.e. Bankruptcy or liquidation of T together c. series of insolvency events (i.e.
winding up order)
BUT N.B Insolvency provisions not usually found in leases c. capital value
because would not be commercially feasible (as lenders wouldnt want to see
forfeiture on insolvency provisions as the lender itself would want to repossess
capital assets)

LANDLORDS REMEDIES
BREACH OF REPAIR COVENANTS
Exam Technique 1st REFER TO BREACH OF LEASE (& IF IT APPLIES: FORFEITURE
CLAUSE)
Landlord may:
1. FORFEIT
44

Not at automatic right must be expressly reserved in the lease in form of a

forfeiture clause
N.B DIFFERENT EFFECT DEPENDING ON WHETHER ITS A
L must serve an s146 notice where he wishes to forfeit (or claim damages)
N.B. NOT necessary for non-payment of rent
s146 (1) LPA 1925 L must serve notice on Tenant:
(a)Specifying breach
(b)Requiring Tenant to remedy it if possible
(c) Requiring Tenant to pay compensation
Both notices would have to state that T has a right to serve a counter-notice
T has 28 days from date of notice to serve counter notice
If counter-notice is served L will be unable to forfeit or sue w/o leave of the
court
Further protection for leases granted for term of 7 years +, & has 3 years +
remaining
AND REPAIR s146 notice must the ALSO comply c. s51 LTA 1954 (extending)
LP(R)A 1938 )
2. CLAIM DAMAGES
Damages limited by s18 (1) LTA 1927 to reduction in value of Ls reversion
(interest in the property)
I.e. Damages L could receive are a lot less if value of land isnt significantly
affected
I.e. T covenants to repaint central London property:
Repainting may be expensive, but value of land isnt reduced by same
amount because theres still huge demand for the property
May not be sufficient to enable L to carry out the works
NB. L may have security
I.e. Rent deposit to enable recovery of damages
NB. No damages may be claimed where its shown that premises would be pulled
down on termination of tenancy
N.B IF LP (R) A 1938 APPLIES (I.e. OVER 3 YEARS REMANING ETC.EVEN
IF JUST WANT TO CLAIM DAMAGES) YOU STILL NEED TO SERVE A s146
NOTICE CHECK s1 LP (R) A (2)
3. SELF HELP
No an automatic right Must be expressly reserved in the lease
To avoid s18 (1) LTA 1927 / waiting for specific performance to be granted:
Leases generally contain a Jervis v Harris clause:
Entitles L to enter the property, notify tenant of any disrepair, & carry out
the works at the cost of the tenant if the tenant doesnt do so
Entitles L to recover full cost of the works through a debt claim (Jervis v
Harris), which isnt limited by s18 (1) LTA 1927 (unlike claiming damages)
N.B. L may have security
I.e. Rent deposit to enable recovery of the cost of works
4. SPECIFIC PERFORMANCE

45

Rainbow Estates v Tokenhold To force T to carry out his repairing

obligations
Rarely granted by courts because of difficulty in supervising the order
5. DEPOSIT
Did L take a deposit at the outset which can be retained?

NON-PAYMENT OF RENT
(1) FORFEITURE
See above ^^^
(2)ACTION FOR DEBT
Ls right to sue for unpaid rent is only available for rent due in preceding 6 years
(3) DISTRESS (bailiffs) CRAR CANT RECOVER SERVICE CHARGE
CHECK.(SGS DESCRIPTION)
Ancient right to peaceably re-enter & seize chattels to the value of the debt due
in last 6 years
- L must serve notice on T before seizing goods
- Cannot seize items in use by T

IX.

Contents of a Lease II (Term, Rent, Service

Charge, Alterations and Use)

SGS 9 Contents of a Lease II; Term, Rent, Service Charge, Alterations

& Use
LEASE
LAW
LANDLORDS TITLE
ADDING AREA ONTO THE PROPERTY DEMINSED/ CHANGING LENGTH OF
TERM
N.B Deed of Variation which alters extent of property demised OR changes
length of the term operates as the surrender of the existing lease & grant
of a new lease
- Implied surrender & re-grant
o Further SDLT payment may be payable on grant of new lease
o If original lease was registered application needs to be made to
close original title & open new one for the new lease
If its the extent of lease which changes do it via a
separate new lease
If its the term of the lease which needs to be extended
could be done via a reversionary lease takes effect at end
of current lease, provided the reversionary lease takes effect
no later than 21 years after its grant

46

N.B. May also mean difference b/w new & old lease in terms of
original tenant liability
N.B Possibility of instead getting new leae over area of extension (just pays SDLT
over area of extension)
Both likely to need a licence
ALTERATIONS
If Lease prohibits absolutely against T making any improvements to property:
o s3 LTA 1927 T must obtain express consent (usually by way of
a Licence to Alter) or a Deed of Variation of Lease from L
- T can then apply for compensation once lease ends if property
has increased in value as result of alterations
L can refuse for any reason it wishes
N.B. Statutory allowances I.e. Equality Act 2010
If Ls consent needed under the Lease:N.B Does T require planning permission/
building regulations/ consent of any PWB of any title covenants etc. to carry out
works?

USE
If Lease prohibits absolutely:
o T must obtain express consent (via Licence) or a Deed of Variation
of Lease from L
L can refuse
If Landlords consent needed under the Lease:
o

s19 (3) LTA 1927 DOESNT UPGRADE qualified covenants

to fully qualified
I.e. More limited effect & L can be unreasonable
BUT
S19 (3) If no structural alterations required to change use: L
cant charge any fine/ premium to T as a condition of giving
consent.
But L entitled to:
- Recover any reasonable costs he incurred in giving consent
- Require T to compensate him if his alterations diminished value
of his reversion
- At end of lease: Require T to reinstate property to condition it
was in pre- alterations
If structural alterations are required statute wont apply
N.B If lease is quiet L will be able to charge whatever he likes

Does T require planning permission, building regulations, consent of any PWB of

any title covenants etc. to change the use?

SERVICE CHARGE
47

LEASE
LAW
LANDLORDS TITLE
Amount paid for additional services provided by L
I.e. Life maintenance, cleaners & doormen
- L estimates annual service charge & T pays a of estimate every rent
payment day
- L confirms actual cost for whole year at end of year
- Any shortfall is repaid by T & any surplus is carried forward to next
service charge
N.B Ensure estimate is realistic to avoid T having any cash flow issues etc.
Clearly define the list of services
- Strike out phrases such as and such other facilities as the L may see fit
- Ensure proportion of service charge T pays is proportionate to what T will
use
- Service charges are meant to cover essential services (I.e. Life
maintenance)
L must be obliged to provide the services
- Clause obliging L to provide such of the Services as it deems necessary
unacceptable
- T should resist L making provision of services conditional on having paid
service charge
Service charge should be suspended if an Insured Risk causes damage/
destruction/ access issues
Ensure clause doesnt define repairs as services:
- T shall not be required to pay as part of any service charge the cost of
remedying any inherent defect or any damage caused by any inherent
defect
Obligations to make repairs will be covered elsewhere in the lease
If clause allows for L to replace machinery: inc. only where renewal/ repair
isnt economically feasible
If L wants to introduce new services in the future: Ls discretion to do so should
be:
- Reasonable & in the interests of good estate management
- Could require L to consult c. T

48

X.

Contents of a Lease III (Rent Review and

Alienation)

LIABILITY OF TENANTS
Old Lease (pre- 01/01/1996)
Privity of contract T1 liable under the contract for any breaches of
covenant by T2 & T3
- Original tenant liability
New Lease (on/ after 01/01/1996)
No privity of contract (/Original tenant liability)
s5 LTCA 1995 Once T1 assigns lease; not liable for breaches of covenant by
subsequent Ts
UNLESS T1 gave L an Authorised Guarantee Agreement (AGA)
- T1 may then remain liable for breaches by T2 whilst T2 remains T
BUT once lease is assigned to T3 T1 no longer liable for breaches
s16 LTCA 1995 L can require T1 to give an AGA before (s)he gives consent to
assignment
BUT ONLY IF lease (/ other agreement b/w L & T1) expressly provides for this
N.B Likely to be condition of subsequent assignment that T2 signs AGA so T2
remains liable for any breaches by T3
N.B Wallis Fashion L can only require AGA where reasonable to do so
N.B. Re both new & old leases:
s17 LT(C)A 1995 T1 only liable for rent/ other fixed sums due from T2 IF L has
served notice on T1 within 6 months of the money becoming due

TYPES OF LEASES
Ground Rent Lease
For a long term (i.e. 99 years) reserving a nominal rent & would probably be
granted for a premium Rent usually nominally increased on a stepped basis
every 25 years or so, if at all
- Rarely contains rent review provisions
- Ls investment is mainly achieved on the initial sale of the lease for a
premium
Market Rent Lease
Usually for commercial leases
Reserves a substantial market rent for a shorter term (i.e. 5-20 years) w/o a
premium so Ls investment return is regular instalments of rent
Usual to see rent review provisions; keeps rent in line c. rental market&retain
value in Ls investment
Institutional Lease

49

Normally term of 5 years (if retail) or 10 years (office lease) (dependent on

market);
FRI terms (i.e. full recovery by L from T for service charge & insurance costs)
clear rent concept
- I.e. T liable for internal demise & L liable for structure
AGA as a condition of assignment etc.
Common to see rent review at least on the 5th anniversary of a 10 year
institutional lease

RENT REVIEW
3 Types:
1) Open Market: What rent would be if property were leased on the open
market
Most common
Upwards only
2) Turnover: Rent linked to success of Ts business through Ts revenue/
other measure
3) Stepped: Rent increases by predetermined amounts
4) Index Linked: Set against inflation (i.e. RPI)

OPEN MARKET rental value (undertaken by 3rd party surveyor) is based on a

hypothetical lease
- Used to create idea of vacant unit which can be valued on the open
market
Looks at Particulars of Lease & surrounding properties
- Looks at existing lease & whether T-friendly (i.e. worth more) or
onerous (i.e. worth less)
Subject to various assumptions & disregards (included in the
lease):
From Ts perspective:
Reasonable ASSUMPTIONS
o Property is available c. vacant possession (/ premises fit for use)
o T has complied c. all covenants (otherwise rent would be artificially
depressed)
o Lease has a term of [x] years
o Alienation clause as per lease
o User clause as per lease
UNFAIR assumptions:
o L has complied c. its obligations (otherwise rent would be artificially
inflated)
o Premises suitable/ fitted for any prospective T
o T can recover as allowable input tax any VAT L has charged (as not all
Ts can; rent would be artificially inflated)
Reasonable DISREGARDS
o T is in actual occupation

50

Any goodwill built up by T (otherwise rent would be artificially

inflated)
o Any improvements made by T (if included, T would have paid twice;
for making improvements & again for higher rent)
UNFAIR disregards
o Any absolute prohibition on alienation (would artificially inflate rent)
o Any rent review provisions contained in lease (T-friendly leases are
worth more)
o Any rent free period (otherwise effective rent is too high
o

Although the amount of revised rent is determined principally by the market

(assessed by the value of comparables) Drafting of the hypothetical lease will
influence the amount of rent payable
- I.e. Restrictive/onerous clauses in actual lease (if assumed to be in
hypothetical lease) deters bidders & result in lower revised rent
- I.e. Flexibly drafted clauses in actual lease (if assumed to be in
hypothetical lease) attracts potential bidders & results in higher revised
rent
Ts solicitor should ensure the rent review clause fairly reflects terms of the
actual lease, & doesnt disregard onerous provisions in the actual lease, which
will artificially inflate the revised rent
Ls objective = as high a rent as possible w/o making lease unattractive to a T
Ts objective = as small an increase at rent review as possible
SDLT consequences of rent review:
If lease subject to Stamp Duty (i.e. granted pre 01/13/03) no further SD
consequences at rent review
For leases subject to SDLT Further SDLT payable re any rent review which
occurs within 1st 5 years of term
For rent review on/after 5th anniversary of lease SDLT only payable if
abnormal increase
Finance Act 2006 More than a 20% increase in rent
SDLT calculated on net increase in rent over the term
N.B. Where examining existing lease may need to advise T / L what to expect
at rent review
N.B Where examining grant of new lease may need to amend review
provisions (i.e. c. assumptions & disregards)

ALIENTATION
Alienation refers to T disposing of/ dealing c. his interest in the lease
I.e. Assigning ( T sells remainder of existing term to assignee)
- Assignee then becomes immediate T of L
- No new lease created & cant change its terms (unless L specifically
consents)
51

I.e. Subletting ( T retains leasehold interest but grants brand new (sub- /
under-) lease to ST; head-lease b/w L & T remains; no privity of contract or
privity of estate b/w L & ST)
I.e. Parting c. possession (granting a licence)/ Sharing (i.e. with s/o else in your group of
companies)
I.e. Mortgage or Charge
I.e. Surrender (T & L agree to bring lease to an end; but T may have to pay lump sum & how easy
to get another T?))

In absence of express restrictions in lease T is free to assign lease freely

Absolute Alienation Covenant
-

T shall not .

If Lease prohibits absolutely:

T must obtain express consent (via Licence)/ Deed of Variation of Lease
from L
- L can refuse
Qualified Alienation Covenant
-

T shall not w/o Ls consent

If Ls consent needed under Lease:

s19 (1)(a) LTA 1927
Upgrades qualified covenant against assigning/ underletting into Fully
Qualified covenant
-

T shall not w/o Ls consent, such consent not to be unreasonably withheld

If Ls consent is required L must be REASONABLE in deciding whether or not

to give his consent
- L has burden of proving actions reasonable
- REASONABLENESS:
International Drilling Fluids
Ls decision must be referable to relationship of L & T
I.e. Rent payment is key to L & T relationship: L acts reasonably if refuse consent
for lease to be alienated to bankrupt T but unreasonably if refused on grounds of
new Ts ethnicity/ religion/ sexuality

Moss Bros
Clearly stated, reasonable policy to enable management of the property
may allow L to reasonably withhold consent if T proposes assignee in
breach of that policy
Ashworth Frazer
Reasonable to refuse consent to assignment if L anticipates breach of
covenant by assignee
s1 LTA 1988
L must respond to written application for consent within a reasonable
time
- Either giving consent & setting out any conditions OR refusing consent
& giving reasons
Dong Bang Minerva v Davina Guideline: more than 28 days is
unreasonable
52

s19 (1A) LTA 1927

Assignment provisions in new commercial leases:
o Lease can set out circumstances when reasonable for L to refuse
consent to assign
I.e. If Ts in arrears of rent
o Lease can set out conditions which L can impose on granting consent
to assign
I.e. T must enter into an AGA
Both deemed automatically reasonable (i.e. not subject to
reasonableness test)
S19 (1)(a) LTA L can recover any costs reasonably incurred by his giving his
consent
IS CONSENT NECESSARY?
1. What does LEASE say?
- What type of covenant is it?
2. Does STATUTE change this?
3. Does COMMON LAW interpret the statute?
4. Any LOCAL AUTHORITY CONSENTS needed (i.e. planning/building
regulations)?
5. Does anything on the FREEHOLD TITLE have any impact?

ASSIGNMENT PROCEDURE
Title deeds comprise docs re Ls freehold title (as c. grant of lease) AND re
lease being purchased
If registered lease: need official copies for leasehold title + lease + related
docs (i.e. deeds of variation)
If unregistered lease: just need lease + related docs
T will contact L & ask for consent to assign
If granted: L, T & assignee enter licence to assign
- If assignment of new lease the L T may enter AGA
Documents for Assignment
Contract & Deed of Assignment b/w T & assignee
- Or TR1 for a registered lease
Licence to Assign/ Underlet b/w L, T & assignee (UT)
Records Ls consent for T to assign (as no privity of contract b/w L &
assignee)
Possibly:

AGA b/w L & T

If L requires additional security Rent deposit deed/ 3rd party guarantee &
notice of assignment b/w L & assignee

53

SURVEYOR Deals c. matters such as obtaining references/ bank statements/

accountants reports etc. re assignee/ undertenant to assess its covenant
strength
L normally requires surveyors costs to be met by another party (i.e. current T)
- Undertaking for costs normally given & relevant deed/ licence (i.e. to
assign/ underlet) also usually contain a covenant by T promising to pay
Ls fees
s19(1)(a) LTA 1927 envisages L could recover such reasonable fees
- Most leases contain such a requirement (see 4.69 of Vento Teso)
In new leases, payment of sums owed by T to L is sometimes expressed as a
condition for consent to assignment (clause 4.54(c))

POST COMPLETION MATTERS

Pay SDLT to HMRC Within 30 day sof completion By SDLT 1 and payment
Fail to do so & mayu have to pay fine plus interes
Register Lease To LR Within priority period of OS2 Search By AP1,
Certifiedcopy of lease (includes prescribed lease clauses), Abnk consent, SDLT 5,
fee Failure to do so and will take subject ot interests registered after priority
period. Will not be legal owner

XI.

Landlords Licences

Where Ls consent required will need to be documented in licence b/w parties

- May be L & T together c. any superior L
& in case of assignment/ sub-lease, the assignee or sub-tenant
respectively.
54

The licence should refer to payment of Ls costs which may be recoverable under
statute or, where specifically provided, under the Lease.
In the case of a sub-letting, the head-lease will probably contain a clause
requiring the sub-tenant to give a direct covenant to the superior landlord; this
will be to create privity of contract and would enable the superior landlord to
enforce the terms of the sublease directly against the subtenant.

What different types of licences might you come across when dealing
with leasehold properties?

Licences to underlet, licences to assign, and licences to alter; you may

also see licences relating to occupation of premises (though this may
actually be a lease under the tests in Street v Mountford).

Who would usually be expected to meet the landlords costs for giving
consent to an assignment of a commercial lease?

Usually it is the tenant that meets the landlords costs incurred in giving
consent to assignment. These costs could relate to the landlords
solicitors costs and also the costs of any surveyor employed to ascertain
the covenant strength of the assignee. There is also usually a tenants
covenant in the lease obliging the tenant to pay these costs. Section 19(2)
LTA 1927 also permits the landlord to recover its reasonable costs from the
tenant.

In order to be able to give consent, what information or other comfort

might the landlord wish to obtain in relation to the proposed assignee
or subtenant?

The landlord might wish to see e.g. three years trading accounts if the
assignee/subtenant is a company and/or bank references or references
from previous landlords. If that financial information does not give the
landlord comfort then the landlord might be looking to take a guarantee
from a parent company or maybe from a director of the
assignee/subtenant. The landlord could also ask for a rent deposit which is
a sum deposited and available for the landlord to draw down against if the
assignee/subtenant does not comply with its obligations to the landlord.
Finally if the lease being assigned is a new lease, the landlord can
require an AGA from the outgoing tenant.

What key features would you expect to see in a well-drafted

undertaking for costs? What else would you need to consider if it is
your firm giving the undertaking?

A well drafted undertaking for costs should be SMART (Specific, Measured,

Agreed, Realistic and Timed). If possible, it should be limited to a fixed

55

amount. The firm may well require funds from the client before giving the
undertaking thought this will be a matter between the firm and its client.
Pending a licence to assign being finalised, would you advise a landlord
to send a letter to the tenant granting consent in principle?

No. Landlords should be wary of sending a letter which gives consent in

principle following Aubergine Enterprises Ltd v Lakewood International
Ltd [2002]. This case made it clear that a letter which indicated consent
was given in principle could be construed as landlords written consent
even before a formal licence has been entered into. Putting the heading
Subject to Contract at the top of the letter did not preclude the letter
being construed as giving consent. The consequences of accidentally
giving consent by way of such a letter would be that the tenant could
lawfully go ahead with the assignment to the assignee without the
assignee having given any direct covenant by way of licence to the
landlord. The landlord would also be unable to ensure that any guarantees
it might have required were entered into or that any other conditions
intended to be attached to consent were satisfied.

56

XII. Security of Tenure

Application
For Landlord & Tenant Act 1954 (1954 Act) to apply
s23 (1) Requirements for security of tenure must be satisfied:
Must be:
(i)
a TENANCY;
(ii)
OCCUPATION; &
(iii) a BUSINESS (inc. charities)
s24 (1) Protected lease wont end on contractual expiry date (CED) & T
may apply for new lease
SubTs may get benefit of security of tenure, as long as theyre in
occupation
N.B Periodic tenancies (i.e. monthly tenancy) ARE covered BUT tenancies at
will ARENT
s43 Rules re EXCLUDED TENANCIES
o Agricultural holdings/ mining leases/ service tenancies
o Tenancy granted for term certain not exceeding 6 months unless can be
extended beyond this/ exceeds 12 months c. aggregate occupation
together c. predecessor in same business
CONTRACTING OUT
s38A 1954 Act may be excluded by agreement b/w parties
2 ways of doing this:
1) At least 14 days notice must be given by L to T stating Act wont apply
- T must then make a simple declaration confirming his receipt &
understanding of notice
2) Less than 14 days notice may be given by L to T
BUT then T must make a statutory declaration
In both cases:
Lease must:
- Refer to the warning notice & declaration; &
- Contain clau se stating parties have agreed to exclude security
of tenure
NB. Leases dated before June 2004 required a court order
TERMINATION BY LANDLORD
L may serve a notice under s25 to terminate lease:
Can be HOSTILE or FRIENDLY:
If hostile L is unwilling to grant a new lease
- Must give T not more than 12 nor less than 6 months notice of specified
termination date (STD)
57

Whilst notice doesnt have to be served to end the lease on the CED
The STD can never precede the CED of the lease
Service must be made by the competent L (see s44)
Such notice may not be served if s26 request already served by T

After receiving a s25 notice

T wishing to renew its lease must ensure an application is made to court for a
new lease
This application can be made by L or T
Purpose of application = allow court to determine the terms of the lease if
parties cant agree themselves
Deadline is the STD (s29A (2)(a))
- Possible for parties to extend deadline c. a view to agreeing matters
themselves (s29B)
If no application made by relevant deadline: T will lose right to new lease
If application has already been made & parties subsequently reach
agreement on terms of lease: Application may be withdrawn

TERMINATION BY TENANT
T may terminate its tenancy w/o renewal by:
Serving a s27 notice at least 3 months before the intended leaving date
OR
T may simply vacate by the CED; in which case no s27 notice is strictly
necessary (s27 (1A))
- Notice may not be served under this section to end the lease at any
date before the CED
- If T considers it may need to leave part way through the term:
It should ask for a break clause when negotiating the lease
REQUEST FOR NEW LEASE BY TENANT
If the T wishes to renew its lease:
It can serve a request under s26 not more than 12 or less than 6 months
before proposed commencement date specified in the request
Whilst the new lease doesnt have to start on the day of the old CED (or even
the day after it), the proposed termination date cant precede the CED
Request must be served on the competent L & cant be served if s25 notice
already been served
After receiving a s26 request L may serve counter-notice within 2 months
indicating whether or not hell object to the request (s26(6))
The application to court is still necessary but cant be made until T receives
Ls counter-notice or (if L doesnt serve this) until 2 months have passed
following service of the s26 request (s29A (3))

58

 Deadline for applying to court is the day before the proposed

commencement date for the new lease as specified in the Ts s26 request
(s29A (2)(b))
INTERIM RENT
Until a new lease is granted T will continue to pay the old rent
s24A allows either party to apply to court for an interim rent
Will be payable from:
- Earliest termination date (if s25 notice was served)
OR
- Earliest commencement date (if s26 request was served) which
couldve been specified in relevant notice
Interim rent will be set at market rate
UNLESS L is unwilling to grant a new lease: whereby it will be 10-15% less
than market level

GROUNDS FOR REFUSING TO GRANT A NEW LEASE

s30(1) Ground
(a)

(b)

(c)

(d)

(e)

(f)

(g)

Description
Serious breach by
T of repairing
obligation
Serious &
persistent delay
by T in paying rent
Other serious &
persistent
breaches by T
(catch-all)
Availability of
suitable
alternative
accommodation
Sub-tenancy of
part; needed for
letting or disposal
of whole
Ls firm & settled
intention to
redevelop
premises, needing
possession
Ls intention to
occupy premises
himself (N.B 5

Mandatory or
Discretionary?
Discretionary

Compensation
Available?
No

Discretionary

No

Discretionary

No

Mandatory

No

Discretionary

Yes

Mandatory

Yes

Mandatory

Yes

59

year rule; s30(2))

OMay v City of London Real Property Co

o Current tenancy is starting point for courts determination of terms
of new lease, & any proposed deviations must be shown to be
reasonable by the proposers
Street v Mountford
o Lease requires exclusive possession for term absolute
Mannai Investment Company Ltd v Eagle Star Life Assurance Co.
o In case of errors court will consider whether the notice is
sufficiently clear to leave a reasonable recipient in no reasonable
doubt as to terms of notice
I.e. For example slight error on property address would probably
not confuse most reasonable recipients

60