GSL Conveyancing & Drafting cheat sheet

Since 1926 only two legal estates can exist: fee simple absolute in possession and term of years absolute (LPA 1925 s.1(1)); all other estates take effect in equity.

Legal interests bind the world; equitable interests bind everyone except a bona fide purchaser for value of a legal estate without notice (the doctrine of notice).

A fee simple is 'absolute' unless subject to a condition subsequent or determinable limitation; 'in possession' means a present right to possession, not physical occupation.

Formalities: a deed is required to create or transfer a legal estate (LPA 1925 s.52); contracts for land need writing incorporating all terms, signed by the party to be charged (LP(MP)A 1989 s.2).

A deed must be signed, attested by one witness, and delivered (LP(MP)A 1989 s.1); delivery can be conditional or by conduct.

Freehold reversion, determinable and conditional fees, and life interests all take effect in equity only after 1926.

The 1925 legislation 'curtain principle' hides beneficial interests behind a trust; overreaching converts equitable interests into proceeds of sale.

Adverse possession: registered land requires 10 years' adverse possession under LRA 2002 Sch 6, with notice to the registered proprietor and limited grounds of defence.

Registration of title is compulsory on trigger events: transfer for value, gift, assent, first legal mortgage, and (since 1990) leases over 7 years.

Registered land: a registered disposition for value takes effect subject only to entries on the register, overriding interests (Sch 3 LRA 2002), and (for non-value) minor interests.

Overriding interests under LRA 2002 Sch 3 include leases not exceeding 7 years, easements and profits known to the purchaser, and certain rights of persons in actual occupation.

Unregistered land: legal interests bind the world; equitable interests bind unless overreached; registrable land charges under LCA 1972 must be registered against the estate owner's name.

Land charge classes: C(i) puisne mortgage, C(iv) estate contract, D(ii) restrictive covenant, D(iii) equitable easement, F (family home rights).

Failure to register a registrable land charge renders it void against a purchaser for money or money's worth of a legal estate (LCA 1972 s.4).

Root of title for unregistered land: at least 15 years, ending with a good root (e.g. conveyance for value, assent, or legal charge) and making the title marketable.

Title by adverse possession in unregistered land vests the squatter with a legal fee simple after 12 years, subject to exceptions (disability, future interests, crown land).

Standard Conditions of Sale (5th ed.) apply unless excluded; key conditions: 3.2 (matters subject to which sale is made), 5.1 (completion date), 6.1 (apportionments), 7.3 (risk passes on exchange).

Risk passes to the buyer on exchange of contracts (SCS 5.1.1), not on completion, unless the contract provides otherwise.

Seller must deduce title: unregistered - epitome of title with 15-year root; registered - official copies of register and title plan, plus documents noted.

Buyer's requisitions on title must be raised promptly; late requisitions may be deemed waived under SCS 4.2.

Deposit is normally 10% of the purchase price, held as stakeholder (SCS 2.2); on buyer's default it is forfeited, subject to relief against forfeiture.

Contract must comply with LP(MP)A 1989 s.2: in writing, incorporating all expressly agreed terms, signed by both parties (or on their behalf).

Misrepresentation: rescission and/or damages under Misrepresentation Act 1967 s.2(1) unless the representor proves reasonable grounds; SCS 7.1 limits liability for errors in the contract.

Time is not of the essence unless expressly stated or made so by notice to complete (SCS 6.8).

Standard enquiries: CON29R (required) and CON29O (optional); LLC1 for local land charges; both on the Law Society's official forms.

Local search results last 6 months for lending purposes; searches should be ordered before exchange and re-checked if completion is delayed.

Drainage and water search (CON29DW) reveals adoption status of sewers, public sewers, and charging arrangements.

Environmental search identifies contaminated land risk under Part IIA EPA 1990; lender requirements usually demand one for all purchases.

Chancel repair liability: since 13 October 2013 must be registered as a notice to bind a purchaser for value; check LLC1 and title.

Flood risk search: Environment Agency data distinguishes fluvial, tidal, surface water; insurers and lenders may require it in higher-risk zones.

Coal mining, tin mining and brine subsidence searches are area-specific and reveal whether a mining report is required.

Planning: CON29 reveals enforcement notices, listed building status, conservation areas, and road schemes affecting the property.

Contract particulars must identify the parties, property, price, deposit, completion date, title guarantee, and any special conditions.

Title guarantee (LP(MP)A 1994): full, limited, or none - full implies the covenantor has the right to convey and will do all it can to give good title.

Transfer deed for registered land uses form TR1; for unregistered, a traditional conveyance; both must be executed as deeds.

Consideration must be stated in the transfer; nominal consideration may affect overreaching and lender enforceability.

Special conditions should be numbered and cross-referenced to standard conditions, with any amendments expressly stated to prevail.

On a sale of part, the transfer must include rights granted and reserved, and any party wall or boundary provisions.

Purchase price apportionment between fixtures and chattels affects SDLT and VAT; fixtures pass with the land unless expressly excluded.

Execution: individual signs and witness attests; company executes by two authorised signatories, a director and secretary, or by a single director with witness (CA 2006 s.44).

A legal mortgage of registered land is created by registered charge (LRA 2002 s.23); of unregistered land by charge by deed expressed as a legal charge (LPA 1925 s.87).

Lender's power of sale arises when the mortgage money becomes due (LPA 1925 s.101) but is exercisable only after default and notice, or breach of a statutory condition (s.103).

Consumer mortgage conduct is regulated by MCOB (FCA); lenders must assess affordability and provide an ESIS.

Priority of mortgages: registered charges rank according to the register; unregistered legal mortgages rank by date of creation, subject to land charges registration.

A mortgagor's right to redeem cannot be clogged; any provision postponing redemption or making it illusory is void.

Lender's requirements typically include: good and marketable title, satisfactory searches, buildings insurance, and vacant possession or a tenancy schedule.

Bridging and development finance often require a first legal charge, debenture, and personal guarantee; assignments of rent may also be taken.

On redemption, the lender must execute a DS1 (registered) or a receipt endorsed on the mortgage deed (unregistered) to discharge the charge.

A lease over 7 years must be registered (LRA 2002 s.27(2)(b)); shorter leases are overriding interests under Sch 3 para 1.

Leasehold covenants: landlord's covenants to repair, insure, and quiet enjoyment; tenant's to pay rent, repair, and not assign without consent.

Section 19(1) Landlord and Tenant Act 1927: consent to assignment cannot be unreasonably withheld; s.1 LTA 1988 implies reasonableness and time limits (reasonable time, and reasons within 14 days).

Section 11 Landlord and Tenant Act 1985 implies a repairing obligation for dwellings let for less than 7 years (structure, exterior, services, installations).

Forfeiture for breach of covenant requires a s.146 LPA 1925 notice specifying the breach and requiring remedy, except for non-payment of rent.

Service charges: s.20 Landlord and Tenant Act 1985 consultation for works over £250 per tenant; s.21B summary of rights and obligations.

Lease extensions: Leasehold Reform, Housing and Urban Development Act 1993 gives a right to a new lease of 90 years plus the existing term, at a premium.

On a leasehold purchase, investigate: unexpired term, ground rent review, service charge accounts, reserve fund, EWS1/fire safety, and deed of covenant.

Co-ownership takes two forms: joint tenancy (no distinct shares, right of survivorship) and tenancy in common (distinct undivided shares, no survivorship).

Since 1926, a legal estate can only be held on a joint tenancy; tenancies in common exist only in equity (LPA 1925 s.36(2)).

Four unities distinguish joint tenancy: unity of possession, interest, title, and time.

Severance of a joint tenancy occurs by written notice (LPA 1925 s.36(2)), alienation, mutual agreement, or course of dealing.

Overreaching: a conveyance by at least two trustees (or a trust corporation) overreaches beneficial interests, converting them into proceeds.

A sole trustee cannot overreach; a second trustee must be appointed to overreach on a sale by a sole surviving joint tenant.

Trusts of land are governed by TOLATA 1996; beneficiaries can apply to court for an order for sale or occupation.

A restriction (Form A) on the register protects beneficial interests and prevents registration of a disposition by a sole proprietor.

Completion occurs when the purchase price balance is paid and the transfer and keys are exchanged; legal title passes on registration for registered land.

SDLT return and payment due within 14 days of completion (FA 2003); failure attracts interest and penalties.

Registered land: application to register the transfer must be made within 30 days of completion (LRA 2002 s.6); priority is lost if late.

Unregistered land: the title triggers first registration, which must be applied for within 2 months of the triggering conveyance (LRA 2002 s.6).

Post-completion steps: pay SDLT, submit AP1 (or FR1) with transfer, discharge any charge (DS1/DS3), serve notice of transfer on landlord for leaseholds.

Notice of assignment of lease must be given to the landlord (LPA 1925 s.136 for legal assignment); a licence to assign is often required.

Completion statements reconcile apportionments of rent, service charges, and outgoings as at the completion date.

Undertakings given on completion (e.g. to discharge a mortgage) are enforceable; the buyer's solicitor should retain funds until discharge is confirmed.

Remedies for breach of contract: damages (Hadley v Baxendale remoteness), specific performance (discretionary, for land), rescission, and injunction.

Late completion: notice to complete makes time of the essence; failure allows rescission and forfeiture of deposit (SCS 6.8).

Buyer's default: deposit forfeited, seller may resell and claim losses (SCS 7.4); court may grant relief against forfeiture.

Seller's default: buyer may rescind, recover deposit, and claim damages; specific performance is commonly available for land.

Misrepresentation: fraudulent, negligent (Misrepresentation Act 1967 s.2(1)), or innocent; remedies are rescission and/or damages.

SRA Standards and Regulations: solicitors must act with honesty and integrity, in the client's best interests, and disclose material information (Principles 1, 2, 4, 5).

Conflicts of interest: a solicitor cannot act for both buyer and seller in a conveyancing transaction (SRA Code para 6.2).

Client money: must be held in a client account, with proper accounting, and not used for the firm's own purposes (SRA Accounts Rules 2019).

Restrictive covenants: negative in substance, run in equity at law only if registered (D(ii) land charge or notice on the register); benefit runs if annexed, assigned, or under a scheme of development.

Positive covenants do not run with freehold land at law; they can be enforced through a chain of indemnity covenants or a leasehold structure.

Easements require four characteristics (Re Ellenborough Park): dominant and servient tenement, diversity of ownership, accommodation of the dominant tenement, and capability of forming the subject matter of a grant.

Easements can be created by express grant/reservation, implied grant (necessity, common intention, Wheeldon v Burrows), or prescription (20 years' user).

Legal easements bind the world; equitable easements require registration (D(iii) land charge or notice).

Special conditions should address: VAT, fixtures and chattels, vacant possession, retention of deposits, and rights of occupation.

Covenants should specify the burdened and benefited land, duration, and remedies; consider s.84 LPA 1925 application to discharge or modify.

Rentcharges and positive obligations may require a deed of covenant or a chain of indemnity to remain enforceable.

When drafting a transfer of part, expressly grant or reserve easements for access, services, and drainage, and specify maintenance obligations.

Party wall agreements under the Party Wall etc. Act 1996 require notice and dispute resolution; a deed of easement may be needed for access.

A deed of grant of easement must be executed as a deed and, for registered land, registered to bind successors.

Indemnity covenants should be included in transfers of freehold land subject to positive covenants, to preserve enforceability.

Special conditions can override standard conditions; state clearly that the special conditions prevail in the event of conflict.

Covenants against use, alterations, or subletting should be precisely drafted to avoid uncertainty and to be enforceable as restrictive covenants.

Consider planning obligations (s.106 TCPA 1990) and community infrastructure levy when drafting covenants affecting development land.

Where a covenant is unenforceable, consider a deed of variation or an application to the Upper Tribunal (Lands Chamber) under s.84 LPA 1925.

Easements of support, light, and air require express grant; prescription for light is 20 years under the Prescription Act 1832 s.3.

Rights of way should specify the route, width, purpose, and maintenance apportionment; a right of way over a private road may require a maintenance contribution.

Covenants to insure should name the insurer, sum insured, and application of proceeds; the landlord's interest must be noted.

Restrictive covenants can be enforced by injunction or damages; the court may refuse an injunction where damages are adequate.

Special conditions should address: risk and insurance, VAT, apportionments, and the treatment of arrears of rent and service charges.

A deed of easement should include a plan, a description of the dominant and servient land, and provisions for maintenance and repair.

Where a covenant is breached, consider a s.84 application to discharge or modify, or negotiation of a deed of release.

Drafting should avoid uncertainty; a covenant that is too vague may be unenforceable (e.g. 'to use the property as a private dwelling' is generally enforceable).