News

Land Registry guidance on vendors’ liens

The Land Registry recently updated Practice Guide 19 (Notices, restrictions and protection of third-party interests) to clarify its practice on how an unpaid vendor’s lien might be protected after the disposition to which the lien relates has been registered.

According to Halsburys Laws: “A vendor of land has an equitable lien on the land sold for the whole or part of the purchase-money until actual payment, even where the purchase-money is expressed to have been paid and received in the conveyance, when, in fact, it remains wholly or partly unpaid.” Wherever a contract is completed on payment of only part of […]

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Overseas entities: the end of the transitional period

An initial transitional period under the Economic Crime (Transparency and Enforcement) Act 2022 came to an end on 31 January 2023. See section 41(10) EC(TAE)A 2022 which sets out the duration of the transitional period – a period of 6 months beginning with the day on which section 3(1) of the Act came fully into force (1 August 2022).

Offences now being committed?

The transitional period operated to give a corporate overseas owner time to become registered as an overseas entity at Companies House. It operates for those overseas entities who became registered as proprietors of a registered estates at the Land […]

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Waiver of forfeiture by using CRAR

In Brar & Brar v Thirunavukkrasu [2019] EWCA Civ 2032, the Court of Appeal has confirmed that the exercise of the Commercial Rent Arrears Recovery (CRAR) procedure will operate to waive a subsisting right to forfeit a lease.

In this case, the tenant had fallen into arrears with the rent. In January 2016, the landlord instructed enforcement agents to seek recovery of the arrears by use of the CRAR procedure. On 1 February, the agents exercised CRAR over the tenant’s goods at the premises for rent arrears and costs totalling £10,533.20, which sum was paid by electronic transfer on 4 February. […]

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SRA Standards and Regulations: contract races

The Solicitors Regulation Authority introduced new Standards and Regulations on 25 November 2019 to replace the SRA Code of Conduct 2011. The Code of Conduct had itself replaced an earlier 2007 edition and, before that, the old Solicitors Practice Rules 1990.

The Standards and Regulations are shorter than the 2011 Code of Conduct as many of the prescriptive rules affecting solicitors have been removed to make the regulations to which solicitors are subject “shorter and more targeted”, less prescriptive, and more flexible. One notable absence from the new Standards and Regulations is the practice to be adopted where a client sets […]

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For how long will AGA liability run?

The Landlord and Tenant (Covenants) Act 1995 had, as its primary aim, the abrogation of the unjust rules of privity of contract in landlord and tenant law whereby a landlord could pursue a tenant for unpaid rent long after the tenant had assigned its lease. However, given the shortened average length of a modern commercial lease (research suggesting it hovers at around 6 years), and the almost universal use of the authorised guarantee agreement (AGA) when a lease is assigned, it is arguable that tenants have not been freed by the Act from the worry of liability after assignment. This […]

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Baker v Craggs: fundamental land law under the microscope

We do not get too many cases in which section 1 of the Law of Property Act 1925 is at the heart of the decision. In Baker & Anor v Craggs [2018] EWCA Civ 1126, the Court of Appeal has overturned the 2016 High Court decision (see CPI Update Issue 153 – January 2017).

This is the case in which a dispute arose over competing interests after registered proprietors dealt twice with the same piece of land: first by transferring it to Craggs, and second, during a registration gap, by granting an easement over the land to the Bakers. The High […]

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When is a covenant not a covenant?

When is a covenant not a covenant? Perhaps when the judge decides it is an easement? In the recent case of Churston Golf Club v Haddock [2018] EWHC 347 (Ch), the court interpreted the language of a 1972 conveyance (which, for all the world, appeared to have imposed a covenant) and construed the drafting as having created an easement.

This case was an appeal from a county court case in which it had been held that the golf club, as the leasehold owner of land which adjoined farm land tenanted by Haddock, owed an obligation to Mr Haddock, in the form […]

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The pain of settlement: the EMI case and the 1995 Act

There was universal disappointment amongst those with an interest in commercial certainty and sensible development of the law when it was discovered that there was to be no appeal hearing in the case of EMI Group Ltd v O & H Q1 Ltd [2016] EWHC 529 (Ch). The parties have reached a settlement agreement.

This is the 2016 High Court case in which it was held that a tenant cannot assign a post-1995 Act lease to its guarantor. The case related to an assignment of a lease, with landlord’s consent, from the original tenant (HMV UK Ltd, then operating as Record […]

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Getting away with a deliberate breach of covenant (subject to compensation)

It is usually the case that deliberate, unlawful conduct (for example, a wilful breach of a restrictive covenant, or the deliberate interference with an easement) is likely to be punished in judicial proceedings. However, this was not the outcome in the recent case of Millgate Developments Ltd & others v Smith & The Alexander Devine Children’s Cancer Trust [2016] UKUT 515 (LC).

In this case, a house-builder company applied to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925 to modify restrictive covenants which affected a development site in Maidenhead, and which the house-builder had […]

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Codes for Completion: moving with the times; the Dreamvar case

The recent case of Dreamvar (UK) Limited v Mishcon de Reya & Anor [2016] EWHC 3316 (Ch) has caused alarm bells to ring in the offices of property lawyers. It involves a multiplicity of claims brought by a defrauded purchaser of property in London, against its own solicitors, and also against the solicitors acting for the purported seller. The case explores the responsibilities taken on by solicitors acting on the completion of a property transaction. For completion, we usually make use of The Law Society’s Code for Completion by Post. This was first introduced in 1984 to deal with what […]

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Form K16 searches in registered land purchases?

A recent article in the Law Society Gazette (“Bankruptcy in conveyancing”, 1 August 2016) addresses the risks of a sole vendor becoming bankrupt, or subject to bankruptcy proceedings, during a property sale, and considers the extent to which a buyer’s conveyancer might be considered negligent for failing to discover the proceedings. It concludes by suggesting that “there seems to be a very fair argument that the reasonably competent conveyancing solicitor should add this simple additional step [a Form K16 bankruptcy search] to the completion process.” The article proceeds on the premise that a property sale completes without the buyer becoming […]

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E-signatures for land contracts: a premature step?

A joint working party of The Law Society Company Law Committee and the City of London Law Society Company Law and Financial Law Committees has published a note, based on the opinion of leading counsel (Mark Hapgood QC) on the effects of executing a document using an electronic signature. The working party states that the aim of the note is to make suggestions only and not to give advice. Although published by Company Law and Financial Law Committees, the note expressly extends to property contracts under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and to deeds, […]

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Proposals for reform of the Land Registration Act 2002

The Law Commission has published a consultation paper on “Updating the Land Registration Act 2002” (Consultation Paper No 227). The announcement states that the paper considers a wide range of issues, including those interests that can be registered at the Land Registry, how interests are protected on the register, how mines and minerals are to be dealt with on first registration, the effect of registration and the powers of disposition given to the proprietor, the extent of the guarantee of title that registration provides, and the development of electronic conveyancing. For those short of early summer reading material, a printing […]

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An assignment from a tenant to its guarantor is void. Really?

Lord Neuberger once famously confessed, as Master of the Rolls in Day & Anor v Hosebay Ltd [2010] EWCA Civ 748 (a decision on leasehold enfranchisement), that he had “started, in Boss Holdings [2008] 1 WLR 289, paragraph 26, what I now think is a hare by suggesting an over-literalist approach to the language used by the legislature”. He wished to depart from his over-literalist approach and so the hare was recaptured. In K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904, Lord Neuberger’s apparent interpretation of the language of the Landlord and Tenant (Covenants) […]

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Company ownership

The Department for Business, Innovation & Skills has published the outcome of its consultation on the implementation of rules relating to the register of company ownership and control. In March 2015 the Small Business, Enterprise and Employment Act 2015 received Royal Assent. It inserts a new Part 21A into the Companies Act 2006. Part 21A sets up the framework for the PSC register (Register of People with Significant Control), which companies will be required to hold from 6 April 2016. Companies will be required to deliver information from the PSC register to Companies House in a confirmation statement (which replaces the […]

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Apportioning rent: Marks and Spencer plc v BNP Paribas

One of the features of the recent Supreme Court judgment in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72 was the unequivocal approval of the Court of Appeal decision in Ellis v Rowbotham [1900] 1 QB 740 on the liability of a tenant to pay, in full, rent reserved quarterly in advance. Without express words to the contrary, rent payable in advance is not capable of apportionment under the Apportionment Act 1870. Hence, where a tenant exercises a break clause, on the last rent day before termination a full payment remains due, […]

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1954 Act amended in England and Wales

The Small Business, Enterprise and Employment Act 2015 (Commencement No. 2 and Transitional Provisions) Regulations 2015 (SI 2015/1689) have brought into force on 1 October 2015 sections 35 and 36 of The Small Business, Enterprise and Employment Act 2015. Sections 35 and 36 amend the Landlord and Tenant Act 1954, Part II, by excluding from protection tenancies entered into on or after 1 October 2015 where the tenant carries on a home business. This amendment has also been brought into force in Wales on the same date by The Small Business, Enterprise and Employment Act 2015 (Commencement No. 1) (Wales) […]

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Is your easement legal?

The Land Registry has made a minor change to its practice on registering easements (Land Registry Practice Guide 62). When registering an easement expressly granted or reserved out of a registered title, in a case where the appropriate registration requirements for the easement were not met, the Land Registry would add a note to the register in the following form:

“NOTE: The grant or reservation of the rights… has not been completed by registration in accordance with section 27 of the Land Registration Act 2002 and so does not operate at law.”

However, the Land Registry has announced that this note is […]

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