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Conveyancing

CON 29 – July 2016

   A new version of CON29 (and Optional Enquiries, CON 29 O) was first announced in February 2014. They will (finally) come into use on 4 July 2016.

 

Land Registry – e-mail

LR e-mail addresses are changing from 30 January 2016 (the ‘gsi’ disappears from the e-mail address – thus '@landregistry.gsi.gov.uk' becomes '@landregistry.gov.uk'. Clearly, all systems with pre-loaded e-mail addresses need to be updated.

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Retirement flats – event payments

Retirement property leases will often contain an ‘event fee’ clause requiring the lessee to pay a fee in certain circumstances. For instance, this might be on sale, but it may also apply (to the surprise of the lessee) if a carer moves in, or if the lessee goes into residential care, or even if the lessee simply wants to sub-let or take out an equity release mortgage. At the same time, event fees might be charged in return for the deferral of service charge fees (with the fees then being paid on disposal, with the proceeds either going to the developer or into the maintenance fund).

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Japanese knotweed – pre-contract enquiries

Japanese knotweed can lie dormant for up to 20 years, especially after poor herbicide treatment. It has been estimated that over 1% of domestic properties are, or have been, infested, all of whom could have several neighbouring properties that are unknowingly infested as well.

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Buyer – early occupation

   If a buyer is to be allowed into occupation before completion then condition 5.2 of the 5th edition of the standard conditions of sale has comprehensive safeguards.

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CLM Handbook – insurance

From 30 November 2015, individual lenders are no longer able to impose specific insurance requirements in Part 2 of the CML Handbook.

This applies to certificates of title lodged from 30 November. Clause 6.14 in Part 1 will continue to require conveyancers to make reasonable enquiries that buildings insurance has been arranged, and to remind the borrower that there must be buildings insurance as per the mortgage conditions. However, 6.14 does not specify the type of buildings insurance, nor the type of risk, nor is there any reference to making sure the value insured is adequate. In essence, it seems that it will now be sufficient for the conveyancer to simply get confirmation from the borrower that insurance is in place, and that it accords with the mortgage conditions.

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Architect’s certificate – disadvantages

As an alternative to an NHBC ten-year warranty, a developer may offer instead an architect’s certificate (based on an architect’s inspection). But, a buyer – and especially a subsequent buyer – may be disadvantaged by this.

This is well illustrated by a case in which an architect’s certificate had been supplied in respect of a block of flats. Serious structural defects emerged and it was clear the architect had done a bad job. Accordingly, the various flat owners (some of whom were original buyers, and others were subsequent buyers) sued the architect. But, no one had a contract with the architect and thus the claim had to be based on either (i) negligent misrepresentation, or (ii) a special relationship arising out of the assumption of responsibility by the architect (under Hedley Byrne [1964]). 

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Enquiries – misrepresentation?

   A seller who provides inaccurate replies to pre-contract enquiries may be liable for misrepresentation. A recent case gives guidance on that potential liability.

The sellers had received leaflets from residents’ groups and the LA about the potential redevelopment of three local sites for major housing projects. They had gone to a meeting about the plans and talked to a leader of the residents’ group. A year later, they completed the Seller’s Property Information Form by saying ‘no’ in reply to the question: ‘has the seller either sent or received any communication or notices which in any way affect the property (for example, from or to neighbours, the council or government department)?… Has the seller had any negotiations or discussions with any neighbour or any local or other authority affecting the property in any way?’.

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Mortgage fraud – imposter client

What is the liability of a conveyancing solicitor if they are duped by an imposter client? If there is a mortgage fraud, can the lender recover the losses from the solicitor?

The leading authority is Penn [1997] in which a solicitor thought he was acting for H and W, but H had forged W’s signature. The lender successfully sued the solicitor for breach of warranty of authority. But, in subsequent cases the courts were reluctant to hold solicitors strictly accountable. For instance, in Midland Bank [1999] the court said the duty to obtain W’s signature is not absolute – it is merely a duty to exercise reasonable skill and care. However, a recent case may represent a return to the stricter approach.

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Land – corporate wrapper

   A ‘corporate wrapper’ is the term used when property is bought through a corporate entity (rather than directly owned by the individual).

One immediate attraction of using a corporate vehicle is the potential to bypass SDLT. So, if a buyer acquires the company that holds the interest in the property there will be no SDLT, but merely stamp duty at 0.5% (unless the entity is based offshore, such as a unit trust in Jersey, in which case there may be no tax). The other potential tax advantage is for investors from outside the UK who are not tax-resident, since they are only required to pay the basic rate of income tax (20%) on rent profits. UK tax residents will obviously have to pay the full rate of income tax and also be subject to CGT.

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