GSL Conveyancing & Drafting common mistakes
GSL Conveyancing & Drafting · Understand the traps and how to avoid them.
When investigating registered title, treating the register extract as the whole story and drafting the contract without separately checking the filed title plan boundaries, the burdens schedule and any unilateral notices, then reporting the title as 'good and marketable'.
The register is split across property register, proprietorship register and charges register, and candidates read only the first page or skim the charges register for mortgages while missing restrictive covenants, notices protecting third-party rights and cautions against dealings. The habit comes from studying registered title as a single 'proof of ownership' concept rather than as a structured record with distinct parts each carrying legal consequences.
What to do instead
Adopt a fixed checklist for every registered title: (1) property register - description, estate, benefits and appurtenant rights; (2) proprietorship register - class of title, proprietor, restrictions; (3) charges register - mortgages, covenants, easements, notices, cautions. Read the title plan against the physical boundaries and note any general boundaries limitation. Record each entry with its effect on the client's intended use, and carry unresolved entries into the contract as special conditions or requisitions rather than silently accepting them.
Drafting the contract with an incomplete or mismatched parties and property clause - misspelling a company name, omitting a trustee or second proprietor, using a shortened address that does not match the registered title, or failing to include or exclude fixtures and fittings.
Candidates treat the parties/property clause as boilerplate and copy from a precedent without reconciling it against the register and the client's instructions. The clause looks trivial, so it gets the least drafting time, but it is the clause that identifies what is being sold and by whom, and errors here infect every later document including the transfer.
What to do instead
Draft the parties from the register and the client's identity documents, using full legal names and capacities (e.g. 'as trustee of the X Trust'), and match the property description exactly to the registered title number and postal address. Add an explicit fixtures and fittings schedule or incorporate the standard condition on fixtures, and check the capacity of every seller against the proprietorship register before signing off.
Failing to distinguish between standard conditions that are incorporated by reference and special conditions that must be drafted, and then either leaving a gap (no condition addressing a known defect) or drafting a special condition that contradicts an incorporated standard condition without expressly overriding it.
Candidates memorise the standard conditions as a list of topics rather than as a hierarchy of default rules that apply unless displaced. They do not appreciate that a special condition must expressly vary or exclude the standard condition it conflicts with, and that silence means the default applies.
What to do instead
Build the contract in two layers: first list the standard conditions relied on, then for each known issue (defective title, missing consent, retention, delayed completion) draft a special condition that states it expressly varies the identified standard condition by number. Cross-check every special condition against the incorporated set for contradiction, and state the order of precedence in the contract.
Omitting or mis-timing pre-contract searches and enquiries - ordering local search and drainage search too late, ignoring the results, or failing to raise additional enquiries on matters the standard form does not cover (e.g. a planning history, a neighbouring development, or an environmental issue flagged by the search).
Candidates see searches as a box-ticking administrative step and do not link search results to the contract terms. They also confuse the purpose of each search and assume the standard enquiries cover everything, so they never draft the additional enquiries that the results actually demand.
What to do instead
Sequence searches before exchange and before finalising the contract, and treat each result as a source of drafting instructions. For every adverse entry (planning permission, conservation area, radon, flood risk, road adoption), either raise a specific additional enquiry or draft a special condition allocating the risk. Keep a search-to-clause map in the file showing where each result was addressed.
Drafting the transfer or conveyance as a copy of the contract, repeating the contract's obligations and warranties instead of transferring the legal estate with the correct words of grant, the correct execution formalities and the correct land registration application details.
Candidates conflate the contract (which creates obligations) with the transfer (which passes the legal estate). They carry over contractual language and miss the deed requirements - signature, attestation, delivery - and the registration requirements such as the correct application form and the need to register within the priority period.
What to do instead
Treat the transfer as a separate instrument: use the correct words of transfer for the estate (freehold or leasehold), include only the covenants and declarations that must run with the land or are required by the buyer or lender, and check execution as a deed (signature, witness, delivery). Complete the registration application with the correct title number, parties and application type, and diarise the priority period from the search.
In leasehold matters, failing to check the lease term, rent review provisions, alienation and user covenants, and the landlord's consent requirements before exchange, then discovering the client cannot use or assign the property as intended.
Candidates focus on the physical property and the price and treat the lease as background. They do not systematically extract the tenant's obligations and restrictions, and they underestimate how a consent requirement or a user restriction can defeat the client's purpose.
What to do instead
Produce a lease summary for every leasehold transaction covering term and commencement, rent and review mechanism, service charge and insurance, alienation (assignment, subletting, sharing), permitted use, alterations, and forfeiture and default provisions. Match each restriction against the client's intended use and funding, and where consent is needed, make it a condition precedent or a special condition with a longstop date.
Mis-handling co-ownership: drafting the transfer to two buyers without specifying the basis of the co-ownership (joint tenancy or tenancy in common), omitting a declaration of trust or restriction, and failing to advise on severance and survivorship.
Candidates learn joint tenancy and tenancy in common as abstract land law concepts and do not translate them into the drafting and registration steps. They assume the default position is always what the clients want and do not consider unequal contributions, lender requirements, or the effect of death.
What to do instead
Ask the co-ownership question explicitly before exchange: equal or unequal contributions, intended succession on death, and lender requirements. Draft the transfer to state the beneficial basis, add a declaration of trust where shares are unequal, and register the appropriate restriction. Advise in writing on survivorship and severance, and record the advice on the file.
Treating completion as a formality: not preparing the completion statement and apportionments, not agreeing the completion mechanics (funds, keys, undertakings), and then failing to complete the post-completion registrations - stamp duty land tax return, land registration, and notice to the landlord in leasehold cases - within the deadlines.
Candidates concentrate on getting to exchange and treat completion and post-completion as administrative clean-up. The deadlines are strict and the consequences (penalties, loss of priority, inability to register) are disproportionate, so the omission is costly even though the work looks routine.
What to do instead
Use a completion checklist: completion statement with apportionments and interest, agreed time and place, funds transfer and receipt, keys and vacant possession, and undertakings. Then a post-completion checklist with dates: SDLT return and payment, application to register (within the priority period), notice of transfer to the landlord, and copies to the lender. Diarise each deadline at exchange, not at completion.
When something goes wrong, reaching for rescission or damages without identifying the cause of action - whether it is breach of contract, misrepresentation (fraudulent, negligent or innocent), error in a standard condition, or a defect in title - and without checking the notice and time limits in the contract.
Candidates learn remedies as a menu rather than as consequences attached to particular breaches. They also overlook that the standard conditions contain their own notice, default and limitation machinery that can displace or qualify the general law.
What to do instead
For every problem, write a short analysis: what was promised (contract term or pre-contract statement), how it was broken (breach, misrepresentation, title defect), what the contract says about notice and remedy, and what remedy follows (damages, specific performance, rescission, price reduction, compensation). Check the contractual notice provisions and time limits before advising, and preserve the client's position in writing.
Drafting covenants and easements that fail in law: positive covenants imposed on a freehold buyer without a workable chain, easements without a dominant and servient tenement or that exceed the grantor's capacity, and rights that are not registered or protected so they do not bind successors.
Candidates reproduce covenant and easement wording from precedents without testing it against the legal requirements - the burden of positive covenants does not run at law, an easement needs a dominant tenement and must not be too wide, and an unregistered or unprotected right may not bind a purchaser. The drafting looks correct but fails on enforcement.
What to do instead
Before drafting, test the right: for covenants, identify whether the burden must run and, if positive, use a chain of indemnity covenants or a leasehold structure; for easements, confirm dominant and servient tenements, necessity or grant, scope and capacity, and that the right is granted or reserved expressly. Then protect it: register the grant, enter a notice against the servient title, and check the buyer's lender accepts the arrangement.