LSB Conveyancing & Notarial Practice common mistakes
LSB Conveyancing & Notarial Practice · Understand the traps and how to avoid them.
When asked what a buyer inherits on a registered title, the candidate lists only the entries on the register (charges, notices, cautions) and ignores overriding interests, then concludes the buyer takes free of everything not registered.
The register is visually dominant in the scenario and candidates treat it as the exhaustive list of third-party rights. They forget that interests in Sch 3 Land Registration Act 2002 (short leases, easements, occupiers' rights etc.) bind without entry, and that a disposition for value is only protected by actual notice of such an interest.
What to do instead
Before answering, run a two-column checklist: 'registered entries' versus 'Sch 3 overriding interests'. For each overriding category, state whether the facts trigger it and whether the buyer has actual notice. Only then state the buyer's position, and note that registration does not cure an overriding interest.
The candidate answers a priority question by identifying the competing interests and then stops, without applying the correct priority rule (first in time for unregistered land, s 28/s 29 LRA 2002 for registered land, or the separate rule for registered charges under s 48 LRA 2002).
Priority is taught as a narrative of who did what when, so candidates reproduce the chronology as if that were the analysis. They also conflate the priority of estates with the priority of charges, which has its own statutory rule.
What to do instead
State the rule explicitly before applying it: 'This is registered land; s 29 governs, so the later registrable disposition for value takes priority unless the earlier interest is entered or overriding.' Then apply the facts to each element and give a one-line conclusion. If two charges compete, cite s 48 separately.
In a leasehold transaction the candidate advises on the transfer of the lease but never checks the landlord's consent requirement, the restrictions in the lease on alienation, or the need to serve notice on the landlord and comply with the registration requirements in the lease.
Attention is drawn to the title and the contract, and the lease itself is treated as background. Candidates also assume that a licence to assign is a formality rather than a condition that, if breached, can make the assignment void or put the buyer in breach of covenant.
What to do instead
Adopt a fixed leasehold checklist: (1) alienation clause and consent trigger; (2) licence to assign obtained and its conditions satisfied before completion; (3) notice of transfer/charge to landlord; (4) registration of the transfer at Companies House/Land Registry and any deed of covenant. Answer each point expressly, even if only to say it is satisfied.
The candidate advises that completion can proceed on the agreed date without addressing the mechanics: who bears risk between exchange and completion, whether the deposit is held as stakeholder or agent, and what happens if the buyer's mortgage funds arrive late.
Contracts are read for price and parties, not for the standard conditions and special conditions that allocate risk and govern the deposit. Candidates also treat the deposit as a simple payment rather than a stakeholding arrangement that determines who may release it on default.
What to do instead
For every contract scenario, answer four mechanics questions: (1) when does risk pass (usually on exchange); (2) is the deposit stakeholder or agent, and who holds it; (3) what are the completion and notice provisions; (4) what remedy follows late completion or failure to complete (notice to complete, rescission, forfeiture). Cite the relevant condition rather than general law.
The candidate performs the searches in name only: they list 'local search, drainage, environmental' but do not say what each reveals, what a standard answer means, or how a particular reply in the scenario should change the advice or the enquiries raised.
Search types are memorised as a list, so the answer becomes a catalogue. The scenario usually contains a specific search result (a charge on the local land charges register, a CON29 reply about a road scheme, a flood risk indicator) that the candidate fails to connect to the advice.
What to do instead
For each search, write three things: what it covers, the specific result in the scenario, and the consequence (indemnity policy, further enquiry, price adjustment, or advice to withdraw). Where the result is a local land charge, state that it binds the buyer and cannot be cured by the search alone.
The candidate describes money laundering obligations as 'carry out CDD' without identifying who the client is, what verification is required for a company or trust, when enhanced due diligence is triggered, or what to do when a red flag appears.
The regulations are learned as headings. Candidates default to 'ID and proof of address' and omit beneficial ownership, source of funds versus source of wealth, PEP and high-risk jurisdiction triggers, and the reporting route to the NCA.
What to do instead
Answer in the sequence: identify the client and any beneficial owner; standard versus enhanced due diligence and why; source of funds and source of wealth evidence; ongoing monitoring; and the escalation step (internal MLRO, then SAR/defence against money laundering if appropriate). Name the specific trigger in the facts rather than speaking generally.
In a notarial scenario the candidate produces a certificate of authentication or a protest without stating the notary's checks: verifying identity, capacity and authority, confirming the signatory understood the document, checking the notary's own authority and the applicable law, and completing the notarial act record.
Notarial practice is reduced to 'stamp and sign'. Candidates forget that the notary's personal liability rests on the enquiries made and the record kept, and that a protest (e.g. of a bill of exchange) has its own prescribed steps and timing.
What to do instead
Structure the answer as: instruction and identification; capacity and authority; understanding and, where relevant, independent advice or interpretation; execution and attestation; form of certificate (including any apostille/legalisation need); record-keeping. For a protest, set out the presentment, noting, and notice steps and the time limits separately.
The candidate states that a solicitor owes a duty to the lender as well as the borrower and advises on the lender's behalf without addressing the conflict, the separate retainer, or the need for the lender's written instructions and disclosure of all relevant information.
Acting for lender and borrower is common in practice, so candidates assume a single retainer with a shared duty. They miss that the lender is a separate client with its own instructions, that the solicitor must report matters materially affecting the lender's security, and that a conflict can require the firm to stop acting.
What to do instead
Identify each client and each retainer expressly. State the lender's instructions (title, valuation reliance, searches, reporting), the duty to disclose anything material to the security, and the point at which a conflict arises and must be managed or the firm must cease to act for one party. Cite the conduct rules rather than general fairness.
The candidate explains the post-completion steps as 'register the transfer' without addressing the deadline, the need to pay stamp duty land tax and obtain the certificate, the registration of the charge, and the consequences of late registration (loss of priority, protection of the buyer's estate, and the position of the seller's subsequent dealings).
Post-completion is treated as an administrative afterthought. Candidates forget that SDLT payment and return precede registration, that the charge must be protected, and that delay can let a later registrable disposition take priority.
What to do instead
List the post-completion sequence in order with time limits: SDLT return and payment; application to register the transfer and charge; any notices to landlord or third parties; and the consequence of each delay. State the priority protection point (s 29 LRA 2002 and the pending application) explicitly.
When a problem emerges (a defect in title, a misdescription, an undisclosed occupier), the candidate jumps to 'the buyer can claim damages' without identifying the cause of action (breach of contract, misrepresentation, negligence, breach of trust), the limitation period, or the practical remedy such as specific performance, rescission or an indemnity policy.
Remedies are memorised as a list of outcomes rather than as consequences of a particular cause of action. Candidates also overlook that the contract may exclude or limit liability through entire agreement and no-reliance clauses, and that professional liability depends on the retainer.
What to do instead
Answer in three steps: identify the cause of action and its elements; apply the facts, including any contractual exclusion; then state the remedy and its limits (damages measure, limitation, mitigation). For professional liability, distinguish the firm's duty to its own client from any assumption of responsibility to a third party.