The February 2014 edition of the Commercial Property Information Update – Issue 120 – is published today on this website.
A process known as the Public Request to Order Disposal of land (PROD) has existed for some time under Part X of the Local Government Planning and Land Act 1980. It is currently referred to in Government publications as the Community Right to Reclaim Land. It allows anyone to request that land owned by a public body is put up for sale on the open market. The statutory request procedure applies to public bodies identified in Schedule 16 of the 1980 Act. Under Part X of the Act, the Secretary of State for Communities and Local Government has powers to direct those bodies to dispose of land or property. Schedule 16 was amended in England by The Local Government, Planning and Land Act 1980 (Amendment of Schedule 16) (England) Order 2011.
The aim of the scheme is to make it easier to bring land back into use if it is owned by local authorities or other public bodies (including, for example, the Environment Agency, the BBC or the British Transport Police). A request is made to the DCLG stating why it is considered that: (a) the land described in the request is under-used or vacant; (b) there are no suitable, consulted upon and publicly tested plans in place or likely to be put in place in an acceptable period of time for the land; and (c) the land should be disposed of in order to enable it to be brought back into use. If the Secretary of State decides the land is vacant and underused and that the body has no plans to bring it into use, they will issue a disposal notice that requires the public body to dispose of the land - usually on the open market, so that community groups or others may be able to acquire the land.
The Community Right to Reclaim Land is now being extended, by introducing a public Right to Contest, so that land owned by a central government department or one of its arms’ length bodies can be brought back into use. The Right to Contest allows the public to challenge central government to release land for better economic use. Unlike the Community Right to Reclaim Land, which deals with unused or underused land, the Right to Contest can be used to argue that land currently in use could be put to a better economic purpose (e.g. for housing or to help businesses develop or expand) where operations on the land could be moved to a different location.
The Right to Contest came into force on 8 January 2014.
A property webinar by Alan Riley: Wednesday 15 January 2014 (12.30pm to 2.00pm):
Understanding and dealing with title defects.
This webinar will analyse the process of title investigation and will cause us to remember some of those long lost or forgotten points on title investigation, including:
• What to look out for when investigating unregistered titles;
• How to deal with Land Charges search certificates;
• Problems arising on death: sole owners, co-owners, trustees and personal representatives;
• Sales by mortgagees (and title devolution through mortgagees);
• Sales by attorneys, and the evidence of title required;
• Dealing with different classes of title, and the upgrading of titles;
• Problem entries on registered titles;
• Problems with corporate ownership, bankruptcy and insolvency.
To enquire about joining, click on the Contact button above.
The January 2014 edition of the Commercial Property Information Update – Issue 119 – is published today on this website.
The December 2013 edition of the Commercial Property Information Update – Issue 118 – is published today on this website.
Land Registry is current running a survey on its website to find out customer views in relation to the collection of personal data for fraud prevention purposes: see Land Registry's Fraud Survey. There is scope within the survey to provide suggestions to the Land Registry on how to minimise fraud (e.g. consider providing pin number identification systems for registered proprietors?). It is perhaps better not to suggest the re-introduction of paper land certificates.
Fraud is also the topic of Monday’s webinar: “Applying best conveyancing practice to avoid inadvertent liability for fraud”. This webinar considers how to stay alert to the possibility of property fraud; considers what its implications are at law, and for conveyancers (including the risks of rectification and objections to registration); analyses how to apply Law Society practice guides; deals with the Land Registry’s identification procedures; explains why we should be adhering to the letter the best practice procedures applicable at exchange and completion; deals with incentives in property sales; and examines the lessons learned from recent cases.
Friday 8 November at 12.30pm.
Ensuring binding contracts and effective completions.
The webinar will cover the following issues:.
- Who signs a contract for the sale of land, and how? What is a “signature”? What is a “contract”? - - Are agents sufficiently authorised to sign?
- Can faxes and PDF pages short-cut the route to effective exchange? What if the contract is altered after signature, or after exchange?
- How do you ensure the exchange is fully effective?
- What is execution, and who should execute? Can a deed be altered after execution, or after delivery? What is the current thinking on valid execution in the light of the Mercury Tax case and subsequently offered opinions?
- Who checks the validity of execution at completion, and does the Code for Completion assist? How do you ensure the completion is fully effective?
Relevant case law covered in the session includes: Ikbal v Sterling Law  EWHC 3291 (Ch); Davisons Solicitors (a firm) v Nationwide Building Society  EWCA Civ 1626; First Post Homes Ltd v Johnson  13 EG 125; Green (Liquidator of Stealth Construction Ltd) v Ireland  EWHC 1305 (Ch); J.Pereira Fernandes SA v Mehta  1 WLR 1543; R (on the application of Mercury Tax Group Limited) v HMRC  EWHC 2721 (Admin); Frazer v Brown  EWHC 2692 (Ch).
As is widely known, at midnight on 12 October 2013, certain classes of property rights, such as chancel repair liability (CRL) lose their status as overriding interests under provisions of the Land Registration Act 2002. Once the status of the right as an overriding interest is lost, a purchaser of the land for valuable consideration will be able to take free from it. However, the loss of overriding interest status for a property right does not mean that the right ceases to be an interest. Where no disposition for value occurs after 12 October 2013, the land remains subject to the right, and the right remains enforceable against the owner, and registrable against the title.
Where the disposition for value after 12 October is a mortgage (or re-mortgage) the mortgagee will enjoy priority protection against a CRL that is not noted on the register by virtue of section 29 LRA 2002. Registration of a registered charge made for valuable consideration gives the charge priority over third party interests unless, at registration, the third party interest is either noted on the register, or overriding. CRL cannot be overriding after 12 October 2013, so if it has not been noted on the register by the time the charge is registered, CRL is postponed “to the interest under the disposition” – that is, postponed to the charge. Hence, the chargee has priority, and so too would the chargee’s buyer and all who claim through that line of transmission.
However, in such a case, the chargor (the current registered proprietor) will still remain subject to the liability unless and until there is a disposition for value by the registered proprietor. The mortgagee may therefore be persuaded by the borrower that the cost of insuring against a potential chancel repair liability no longer needs to be incurred, since the mortgagee’s interest will be free from the liability. Whilst it is true that mortgagees may well be able to acquire free from CRL after 12 October, it is worth considering how such a mortgagee will realise its security. If it exercises its power of sale (TR2 transfer), it can sell free from the right. But if it appoints a receiver to sell, and notice of CRL has been noted on the register after the date of the charge, but before the sale, as the receiver is the agent of the borrower, the transfer (TR1) would be subject to it. Given some mortgagees’ preference for selling through receivers, this is a point that may need to be taken into account when considering whether insurance requirements can be dropped.
The October 2013 edition of the Commercial Property Information Update – Issue 116 – is published today on this website.
The September 2013 edition of the Commercial Property Information Update – Issue 115 – is published today on this website.