The Practical Lawyer


Contract – conditional

Your clients want to exchange contracts subject to getting planning permission. Accordingly, you negotiate an exchange on the basis that completion will be 21 days after the grant of planning permission, so that if the planning application is refused (after appeal), then the sale contract is to lapse. What can possibly go wrong?

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Estate agents – commission

It is well established that for an estate agent to recover commission, he has to be the ‘effective cause’ of a sale. Thus, the estate agent has to be able to show that he introduced the buyer to the purchase – and not merely to the property.

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Sale and rent back – unfair contract?

There has been much concern about sale and rent back schemes. Typically, the owner will sell the property, usually at a discount, and then be allowed to remain in the property as a T. While the scheme does release equity (so the owner can repay debts) it does mean that the owner will be losing security of accommodation, and merely acquiring the uncertain security of tenure of a T (typically, as an assured T).

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Sewers – adoption

Sewage adoption agreements are covered by s104 Water Industry Act 1991. In essence, anyone who is constructing a sewer can ask an undertaker to enter into an agreement where the undertaker will make a vesting declaration, adopting the sewer at some specified date after the work is completed. Needless to say, it is important to reach agreement on this before the development commences. Ofwat guidance says that sewers should be adopted if all these criteria are satisfied:

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Restrictive covenant – release?

It is only rarely that the Land Registry can release (ie cancel) a restrictive covenant. Usually, what happens is that the LR will merely make an entry on the register saying that ‘by a deed dated... the covenant contained... were expressed to be released’. Thus, the LR is confirming that they were ‘expressed’ to be released but it is not guaranteeing that they were released.

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Local land charges – personal searches

The fee for a personal search of the Local Land Charges Register doubles to £22 on 1 January 2010.


Flooding – Environment Agency

As flooding becomes more of an issue for conveyancers, to what extent can you rely upon the flood map posted on the Environment Agency website? It is important to understand the map’s limitations:

it does not show potential flooding from ground or surface water;

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Auction – new Conditions

A new (third) edition of the Common Auction Conditions has been published. It is important to note the following differences from earlier editions:

All tenancies must be disclosed in the special conditions. The CAC say that the property is sold subject only to those tenancies that have been disclosed (ie otherwise it is vacant possession). Details of any rent arrears must also be set out in the special conditions.

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Easements – non-registerable

Be careful when dealing with easements arising under a lease that cannot be registered. Typically, this will be a lease of seven years or less (eg when it is a lease of part-only of the land).

The starting point is to distinguish between legal and equitable easements. Easements under a lease for a term of years will be legal easements provided they are created under deed. So, a lease of seven years or less which is made by deed will almost certainly create legal easements. On the other hand, if that same lease is merely in writing, and not granted by deed, then the easement will be equitable. This has important implications:

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London – charter streets

What is a ‘charter street’?

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Page 45 of 51

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