A Practical Approach to Conveyancing

by Abbey, Robert; Richards, Mark

• ISBN13: 9780199254507
• ISBN10: 0199254508
• Edition: 4th
• Format: Paperback
• Copyright: 2002-10-31
• Publisher: Blackstone Press

Summary

A Practical Approach to Conveyancing offers a detailed and well-structured guide throught the vagaries of the English conveyancing system and provides practical solutions to everyday problems. The fourth edition brings the reader right up-to-date with new developments, including the important House of Lords' decision in Etridge and the progress of the new Land Registration Bill through Parliament.

Author Biography

Robert Abbey, solicitor, is Director of Legal Practice in the Department of Professional Legal Studies at the University of Westminster. He is also a consultant with Russell Jones & Walker Solicitors, London. Mark Richards, solicitor, was a partner in a central London commercial practice and is a Senior Lecturer in Law at the University of Westminster. He is subject leader for conveyancing and commercial property on the University's Legal Practice Course.

Table of Contents

Preface	xvii
Acknowledgements	xix
Table of Cases	xxi
Table of Statutes	xxix
Table of Secondary Legislation	xxx
Introduction	1	(50)
An introduction to conveyancing	1	(3)
Our approach in this book	1	(1)
An introduction to conveyancing	2	(1)
Conveyancing of unregistered land	3	(1)
Conveyancing of registered land	4	(19)
Conveyancing of registered land	4	(18)
Key points summary: registered land conveyancing procedures	22	(1)
Defensive lawyering in conveyancing	23	(6)
Defensive lawyering and the conveyancing process	23	(6)
Key points summary: defensive lawyering and the conveyancing process	29	(1)
Conveyancing and information technology	29	(5)
A list of useful websites	31	(1)
Key points summary: some of the hardware and software facilities available	32	(2)
The future of conveyancing	34	(17)
Gazumping and conveyancing reform	35	(2)
One-stop conveyancing and conveyancing call-centres	37	(2)
The Homes Bill 2000	39	(2)
E-conveyancing and the Land Registration Act 2002	41	(10)
Taking instructions and other initial matters	51	(25)
Interviewing the client	51	(1)
Estate agents	52	(1)
Client care and advice on costs	53	(3)
Advice on co-ownership	56	(1)
Advice on finance	57	(7)
Advice on survey	64	(2)
National Conveyancing Protocol (`TransAction')	66	(1)
Professional conduct	67	(7)
Practical checklists	74	(1)
Acting for either seller or buyer	74	(1)
Acting for seller --- additional considerations	74	(1)
Acting for buyer --- additional considerations	75	(1)
Acting for buyer and lender	75	(1)
The draft contract	76	(38)
Preparatory steps by seller's practitioner	77	(7)
Evidence of seller's title	77	(2)
Investigating the seller's title	79	(2)
Checking for any other occupiers	81	(1)
Seller's duty of disclosure	82	(1)
Seller's capacity to sell	83	(1)
Formation of the contract	84	(4)
Impact of the Law of Property (Miscellaneous Provisions) Act 1989	84	(2)
Impact of the Contracts (Rights of Third Parties) Act 1999	86	(1)
Lock-out agreements	87	(1)
Contents of the contract	88	(10)
Particulars of sale	88	(1)
Conditions of sale	89	(1)
Some important areas covered by conditions of sale	90	(2)
Key points summary: vacant possession and completion	92	(6)
Sales of part	98	(5)
Lender's consent	98	(1)
Description in the contract	98	(1)
Importance of a good plan	99	(1)
Negating implied grant of easements in favour of buyer	99	(1)
Grant and reservation of new easements	100	(1)
Creating new covenants	100	(1)
A worked example of a sale of part	101	(2)
Special considerations	103	(11)
Auction contracts	103	(2)
Conditional contracts	105	(1)
Key points summary: conditional contracts	106	(1)
Option agreements	106	(2)
Contract races	108	(1)
Seller not yet registered as proprietor	109	(1)
Sub-sales	110	(2)
Practical checklists	112	(1)
Pre-drafting	112	(1)
Contents of contract	112	(1)
Sale of part	113	(1)
Pre-contract searches and enquiries, town and country planning	114	(38)
Pre-contract searches	114	(20)
Why do searches?	114	(1)
What searches should you do and when?	115	(18)
The effect of the Protocol	133	(1)
Key points summary: pre-contract searches	134	(1)
Preliminary enquiries	134	(6)
Why raise enquiries?	134	(1)
What enquiries should you raise and when?	135	(4)
The effect of the Protocol	139	(1)
Key points summary: preliminary enquiries	140	(1)
Town and country planning	140	(12)
Planning and conveyancing	140	(2)
Changes of use	142	(2)
Planning enquiries	144	(2)
Enforcement notices and stop notices	146	(1)
Building regulations	147	(1)
Key points summary: town and country planning	147	(1)
Practical checklists	148	(1)
Searches	148	(1)
Enquiries	148	(1)
Planning	149	(1)
The National Land Information Service (NLIS)	150	(2)
Deduction and investigation of title	152	(43)
Introduction	152	(1)
At what stage in the transaction are deduction and investigation of title carried out?	153	(1)
Deduction of title to unregistered land	153	(3)
Deduction of title to registered land	156	(1)
Investigation of title	157	(6)
Key points summary: discharge of mortgages	163	(1)
Persons disposing of land in different capacities	164	(2)
Key points summary: sale by mortgagees; personal representatives; dispositions by co-owners; dispositions by an attorney; dispositions by charities	166	(14)
Voluntary dispositions	180	(4)
Key points summary: voluntary dispositions	184	(1)
Settled land	185	(2)
Key points summary: settled land	187	(1)
A practical example of investigating an unregistered title and raising requisitions	187	(6)
Lost or destroyed land and charge certificates and title deeds	193	(1)
Practical checklists	193	(1)
Acting for the seller	193	(1)
Acting for the buyer	194	(1)
Exchange of contracts; death or insolvency of contracting parties between exchange and completion	195	(33)
Before exchange	196	(9)
Acting for the buyer --- matters to attend to before exchange	196	(8)
Acting for the seller --- matters to attend to before exchange	204	(1)
Exchange	205	(5)
Methods of exchange	205	(2)
Telephone formulae	207	(3)
After exchange	210	(8)
Action to be taken immediately after exchange	210	(1)
The effect of a binding contract	210	(1)
Seller's duty as trustee	211	(1)
Risk and responsibility for buildings insurance	211	(3)
Key points summary: risk and insurance	214	(1)
Protecting the contract by registration	215	(1)
Occupation by the buyer before completion	215	(3)
Key points summary: occupation by the buyer before completion	218	(1)
Variation of the contract between exchange and completion	218	(1)
Death or insolvency of contracting parties between exchange and completion	218	(10)
Death	218	(3)
Key points summary: death of a contracting party between exchange and completion	221	(1)
Insolvency	221	(4)
Key points summary: insolvency	225	(1)
Practical checklists	226	(1)
Before exchange	226	(1)
Action to be taken immediately after exchange	227	(1)
The purchase deed and mortgage	228	(43)
The purchase deed	228	(16)
Introduction	228	(1)
General matters	229	(2)
Valid execution	231	(3)
Types of purchase deed	234	(9)
Key points summary: which form of purchase deed to use	243	(1)
Drafting considerations	243	(1)
The mortgage	244	(27)
Introduction	244	(1)
Joint representation of borrower and lender	245	(12)
Separate representation of lender	257	(1)
The mortgage deed	258	(2)
Post-completion steps	260	(1)
Further advances	261	(1)
Subsequent mortgages	261	(3)
Key points summary: further advances and subsequent mortgages	264	(1)
Mortgage fraud	265	(2)
Key points summary: mortgage fraud	267	(1)
Practical checklists	267	(1)
The purchase deed	267	(1)
Acting for the lender	268	(1)
Rule 6(3) and the Lenders' Handbook	268	(3)
Pre-completion procedures and completion	271	(40)
Pre-completion procedures	271	(24)
What are pre-completion procedures?	271	(5)
Pre-completion when acting for the seller	276	(1)
Pre-completion when acting for the buyer	277	(1)
Pre-completion searches	278	(16)
Completion statements	294	(1)
Key points summary: pre-completion procedures	295	(1)
Completion	295	(16)
Date, time and place for completion	296	(1)
When your client is selling as well as buying: synchronisation	297	(1)
Mechanics of completion	297	(9)
Key points summary: completion	306	(1)
Practical checklists	307	(1)
Pre-completion	307	(2)
Completion	309	(2)
Post-completion procedures: delays and remedies	311	(33)
Post-completion procedures	312	(16)
Acting for the seller	312	(4)
Acting for the buyer	316	(11)
Key points summary: post-completion procedures	327	(1)
Delays and remedies	328	(16)
Delays	328	(5)
Remedies	333	(8)
Key points summary: delays and remedies	341	(1)
Practical checklists	341	(1)
Post-completion	341	(2)
Delays and remedies	343	(1)
Leaseholds	344	(37)
An introduction to leaseholds	345	(15)
General introduction	345	(1)
What you might expect in a lease	345	(10)
Dealing with leases when acting for a lessee or lender	355	(3)
Liability on covenants in leases: enforcement	358	(1)
Lease variations	359	(1)
Key points summary: an introduction to leases	360	(1)
New leases	360	(5)
Lease-specific changes in the conveyancing process	360	(3)
Acting for the lessor	363	(1)
Acting for the lessee	364	(1)
Key points summary: new leases	365	(1)
Existing leases	365	(5)
Lease-specific changes in the conveyancing process	366	(1)
Acting for the seller	366	(3)
Acting for the buyer	369	(1)
Key points summary: existing leases	370	(1)
Statutes and leases	370	(11)
Leasehold Reform Act 1967	371	(1)
Right to buy --- Housing Act 1985	372	(1)
Landlord and Tenant Act 1987	373	(1)
Leasehold Reform, Housing and Urban Development Act 1993	374	(1)
Landlord and Tenant (Covenants) Act 1995	375	(1)
Statutory reforms: Commonhold and Leasehold Reform Act 2002	375	(3)
Key points summary: statutes and leases	378	(1)
Practical checklists	378	(1)
New leases	378	(1)
Existing leases	379	(2)
New properties	381	(16)
Introduction	381	(1)
Acting for the developer	381	(1)
Documentation	382	(3)
Key points summary: buyer's concerns on draft contract of new property	385	(6)
Structural defects insurance	391	(3)
Difficulties of synchronising completion of a related sale transaction	394	(1)
Key points summary: synchronising completion of a related sale transaction	395	(1)
Practical checklists	395	(1)
Matters for developer's practitioner to consider	395	(1)
Items to be sent to the buyer's practitioner	395	(2)
Commercial conveyancing, business tenancies and tenanted properties	397	(36)
An introduction to commercial conveyancing	397	(3)
General introduction	398	(2)
Commercial leases	400	(15)
Lease contents	400	(10)
Forfeiture	410	(2)
Enforceability of covenants	412	(2)
Key points summary: commercial leases	414	(1)
An introduction to business tenancies --- the Landlord and Tenant Act 1954, Pt II	415	(8)
Introduction	415	(8)
Key points summary: business tenancies --- the Landlord and Tenant Act 1954, Pt II	423	(1)
Selling and buying tenanted properties	423	(10)
Contractual matters where the standard conditions are used	424	(1)
The Standard Commercial Property Conditions (First edition, 1999) (`SCPC')	425	(2)
Tenanted properties: the buyer's perspective	427	(2)
Completion matters	429	(1)
Key points summary: selling and buying tenanted properties	430	(1)
Practical checklists	430	(1)
Commercial lease contents	430	(1)
Commercial lease renewals	431	(1)
Tenanted properties	431	(2)
Business tenancies and the Landlord and Tenant Act 1954, Pt II	433	(54)
Introduction	434	(1)
Agreements to which the 1954 Act applies	434	(1)
Requirement for `tenancy'	434	(1)
Tenancies excluded from statutory protection	435	(4)
Requirement for `occupation'	439	(2)
Requirement for `the purposes of a business'	441	(1)
Methods of termination under the 1954 Act	442	(13)
Definition of `the holding'	455	(1)
Definition of `competent landlord'	456	(1)
Section 40 notices	457	(2)
Rules for service of notices	459	(1)
Key points summary: s 25 notices and s 26 requests	460	(1)
Landlord's application for interim rent	461	(1)
Landlord's statutory grounds of opposition	462	(9)
Key points summary: statutory grounds under s 30(1)	471	(1)
Tenant's right to compensation for failure to obtain a new tenancy	472	(2)
The terms of the new tenancy	474	(6)
Key points summary: terms of the new lease	480	(1)
Court order for new tenancy	480	(1)
Reform	481	(1)
Practical checklists	482	(1)
Summary of the 1954 Act	482	(1)
Acting for landlord	483	(1)
Acting for tenant	484	(1)
Negotiating the terms of the renewed lease	485	(1)
Key reform proposals	486	(1)
Appendix 1 The National Conveyancing Protocol (4th edition) for domestic freehold and leasehold property	487	(9)
Appendix 2 Standard Conditions of Sale, 3rd edition (National Conditions of Sale, 23rd edition, Law Society's Conditions of Sale 1995)	496	(13)
Appendix 3 Law Society's standard form of contract	509	(3)
Appendix 4 Special condition making contract conditional upon satisfactory local search	512	(2)
Appendix 5 Precedent for lock-out agreement	514	(1)
Appendix 6 Local search application form	515	(7)
Appendix 7 Property information forms	522	(24)
Appendix 8 Example of an epitome of title	546	(2)
Appendix 9 Precedent for conveyance of part of unregistered land	548	(4)
Appendix 10 Completion information and requisitions on title	552	(3)
Appendix 11 Specimen completion statements	555	(5)
Appendix 12 Law Society's Code for Completion by Post (1998 edition)	560	(3)
Appendix 13 Land Registry Form TR1	563	(3)
Appendix 14 Land Registry Form TP1	566	(4)
Appendix 15 Standard Commercial Property Conditions (first edition)	570	(15)
Appendix 16 Solicitors' Practice Rule 6(3) (Solicitor acting for lender and borrower)	585	(11)
Appendix 17 Statutory declaration/certificate as to non-revocation for powers of attorney more than 12 months old at the date of the disposition for which they are used	596	(2)
Appendix 18 Land Registry Form AP1	598	(3)
Appendix 19 Land Registry Form FR1	601	(3)
Appendix 20 The CML Lenders' Handbook for Solicitors and Licensed Conveyancers England and Wales (2002) Second Edition	604	(34)
Appendix 21 Water search CON 29DW	638	(2)
Appendix 22 Mortgage deed	640	(2)
Appendix 23 Form END 1	642	(2)
Appendix 24 Oyez non-Protocol requisitions on title	644	(3)
Appendix 25 Commercial enquiries: on a lease assignment; on the granting of a lease; on a property subject to lettings	647	(6)
Appendix 26 Landlord's s 25 notice and tenant's s 26 request	653	(5)
Index	658