News

Overhaul of local government

Tomorrow (April 1) sees a major overhaul of local government with 44 local councils across Bedfordshire, Cheshire, Cornwall, Durham, Northumberland, Shropshire and Wiltshire being replaced by nine unitary councils. For example, in Cheshire, Cheshire East Council and Cheshire West and Chester Council will replace the seven current councils in Cheshire – namely, Cheshire County Council, Chester City Council, Congleton Borough Council, Crewe & Nantwich Borough Council, Ellesmere Port & Neston Borough Council, Macclesfield Borough Council and Vale Royal Borough Council. For more information, see http://www.communities.gov.uk/news/corporate/1185575

Varying the payment of rent

Where, in the current climate, tenants are requesting that a landlord varies the frequency of rent payments to ease cash flow, the landlord should consider use of a rent variation deed – click on Rent Variation Deed.

Tomorrow is rent day

Property Week online includes a timely reminder that tomorrow is rent day under most leases in England and Wales. See Rent day piles pressure on retailers. Not surprisingly, there has been much demand from property law firms for refresher training on the implications of insolvency in property transactions and on how to deal with tenants in a recession. Next week may be the time to shake the dust off those course materials and explore the options available to a landlord when faced with a poorly tenant.

New Land Registry practice on change of name

On the Land Registry’s website – http://www.landregistry.gov.uk/ – appears the following message: “With effect from 1 April 2009 we will require confirmation of a person’s identity when an application is made to specifically alter the register following a change of name and the evidence enclosed with the application is either a deed poll, statutory declaration or statement of truth. This new requirement is being introduced to help prevent registration fraud.”

Property fraud: how the cat got out of the bag

1. Read this (from yesterday’s Times): http://www.timesonline.co.uk/tol/news/uk/crime/article5947945.ece (Don’t mention the land certificate…)

2. Tune in to File on Four (R4) on Tuesday 31 March at 8.00pm: “Shari Vahl investigates the extent to which inadequate safeguards to property rights might be contributing to the theft of millions of pounds ‘under the noses’ of homeowners.”

It’s all good stuff…

Non-registration of leases

According to the latest issue of LandNet (the Land Registry’s customer services magazine), the Land Registry states that “statistics show that a substantial number of leases processed by Her Majesty’s Revenue & Customs are not being lodged with Land Registry.” This means that a significant number of tenants are saving costs through non-registration. These tenants are therefore happy simply to rest on an equitable lease – for that will be the effect of non-registration. “Equity looks on that as done which ought to be done”. Under the doctrine of Walsh v Lonsdale (1882) 21 Ch.D. 9, it was held that […]

More property fraud in The Times

In today’s Times, further coverage is given to property fraud. In the article Property fraud: now the Metropolitan Police get in on the act, the Land Registry “[rejects] the suggestion made in the current edition of the Property Law Bulletin that victims of property fraud could be landed with responsibility for mortgages taken out by the fraudster. “If someone is defrauded, our state indemnity for all registered titles means that an innocent victim will be fully compensated for any loss he or she suffers.”” So, that’s OK then?

One wonders what an indemnity payout could equate to, if pursued, in […]

How housebuilders operate

The DCLG has posted onto its website a research report: Understanding Builder to Builder Residential Land Transactions which examines the factors that influence the behaviour of housebuilders when they buy, sell and/or resell plots of land (including by way of option agreement or conditional contract). Although commissioned by the Government, the research does not necessarily represent the views or proposed policies of the DCLG. However, it provides an interesting insight into what influences the buying policies of UK housebuilders, and will be of interest to those who seek to dispose of potential residential land.

HIP changes – April 6

Changes to the rules relating to Home Information Packs come into effect on April 6, 2009. These changes include the removal of the temporary first day marketing exemption (meaning that HIPs must be made available on the first day a property is marketed), a requirement to include the Seller’s Property Information Questionnaire in the pack, and the end of the use of insurance to cover missing data in personal searches. The DCLG has issued a briefing note for the property industry – click on Industry briefing note.

Sub-letting at below the head-lease rent

Many leases contain provisions which prevent a tenant from sub-letting unless the rental achieved on the sub-letting is at least the same as the head-lease rent. In a falling market, as now we have, this is tantamount to an absolute prohibition on sub-letting. Buoyed by the apparent success of the British Retail Consortium’s Rent Monthly campaign, it seems that the retail lobby is now turning its attention to such restrictive sub-letting provisions. Almost four years ago, the British Property Federation sought to stave off any possible legislative intervention in this area by issuing its Subletting Declaration. This was to […]

How can someone steal your house? Easily

There is an excellent article in the Times yesterday (you can read the article by clicking on the Times Online). For all of those who are well-versed in the arguments raised in 2002/2003 against the unnecessary abolition of land certificates, it tells us nothing new, but is still worth reading so that one can nod wisely and concur. Land certificates were abolished, in part, to facilitate electronic conveyancing – which, of course, has not arrived. Although paper land and charge certificates were not an absolute prevention against fraud, they served as a useful check. In 2009, one would have thought […]

Contaminated Land – Environment Agency Report

The Environment Agency has published a report – Dealing with contaminated land in England and Wales. The report summarises the progress made by local authorities in dealing with contaminated land under Part 2A of the Environmental Protection Act 1990 in the period between the commencement of the legislation and 31 March 2007. A briefing note to accompany the report – Frequently asked questions about our report entitled Dealing with contaminated land in England and Wales – has also been made available.

Apportioning for goodwill – RICS view

This month’s CPI Update Issue 66 – March 2009) reports on the Practice Note issued by HM Revenue & Customs on Apportioning the Price Paid for a Business Transferred as a Going Concern. It is pertinent to point out that the RICS is not as one with the Valuation Office Agency in relation to this Practice Note. The RICS states on its website that it has made it clear to the VOA that it does not support the guidance and will continue to seek changes to it. This, of course, necessarily leads to some uncertainty as to the […]

When is an absolute discretion not absolute?

In most cases, probably. Many buyers believe they have an effective power of veto over a conditional acquisition where the contract provides for an issue that is the subject-matter of the condition to be determined by the buyer “in its absolute discretion.” But this should not mean that the buyer has a right to frustrate the satisfaction of the condition on grounds that are wholly unconnected with the subject-matter of the condition. Where seeking to exercise an “absolute discretion” clause (e.g. to escape from a contract because of the current economic climate), a buyer would be well-advised to refer to […]

Newham LBC v Thomas-Van Staden

It is good to see Guy Fetherstonhaugh QC, in this week’s Estates Gazette (28 February, page 112) joining the ranks of those who disapprove of the decision of the Court of Appeal in the Newham LBC v Thomas-Van Staden case. (For further tempered dissention, see Julie Stobart and Peter Williams in the Estates Gazette, 7 February page 103). Many concerns are being raised by property lawyers regarding the implications of this case as a binding Court of Appeal precedent, given that many other contracted-out leases have been granted with the accidental inclusion of inapplicable wording extending the definition of the […]

Certificates of title – London form

If you have downloaded and stored a copy of the Sixth Edition of the City of London Law Society’s Certificate of Title (long form), you should note that it has been updated in a minor way to take account of last year’s changes to the VAT option to tax, and the local search forms. The new version the “(sixth edition 2008 Update)” can be downloaded from the City of London Law Society website. A note on the detail of the changes was included in the March 2009 CPI Update.

First registrations – April 6, 2009

The Land Registry’s website includes a reminder of the new first registration triggers arriving on April 6, 2009. From then, first registration will apply whenever unregistered land is vested in a new trustee by way of (a) a deed of appointment of a new trustee, or a deed made in consequence of the appointment of a new trustee; (b) a memorandum executed as a deed evidencing the appointment of a new trustee (to which section 83 of the Charities Act 1993 applies); and (c) a vesting order of the court made under section 44 of the Trustee Act 1925. First […]

Deferring payment of part of the purchase price

In the current climate, in order to facilitate a sale, a seller might allow a buyer to defer part of the purchase price until a later date. A deferred consideration clause has been included in the Property PSL precedents (clause bank – agreements for sale); see: the related Drafting Note. Great care needs to be taken to protect a seller’s right to receive a deferred consideration. Although the seller would enjoy the benefit of a registrable equitable charge, such a charge is likely to be void against a buyer’s mortgagee unless protective steps are taken before the mortgagee is […]