CILEx L6 Property Law and Conveyancing 2 — Questions and Answers
Question 1: What is the doctrine of adverse possession under the Land Registration Act 2002 and how does it differ from the pre-2002 regime?
- Adverse possession has been abolished for all registered land
- Under the LRA 2002, a squatter may apply for registration after 10 years of adverse possession; the registered proprietor is then notified and has 65 business days to object, and if they do, the application fails unless the squatter can rely on one of three limited exceptions in Schedule 6 paragraph 5 (Correct answer)
- The squatter automatically becomes the owner after 12 years, as under the old law
- Adverse possession only applies to unregistered land after 2002
Correct answer: Under the LRA 2002, a squatter may apply for registration after 10 years of adverse possession; the registered proprietor is then notified and has 65 business days to object, and if they do, the application fails unless the squatter can rely on one of three limited exceptions in Schedule 6 paragraph 5
The LRA 2002 (Schedule 6) fundamentally reformed adverse possession for registered land. After 10 years of adverse possession, the squatter may apply for registration. The proprietor is notified and can object. If they object, the application fails unless the squatter satisfies one of three conditions in para 5 (estoppel, some other right to the land, or reasonable mistake as to boundaries). If the proprietor fails to evict within 2 years of a failed application, the squatter can reapply successfully.
Question 2: In a conveyancing transaction, what searches should a buyer's solicitor conduct before exchange of contracts and why?
- Only a local authority search is required
- A comprehensive set of searches including local authority search (LLC1 and CON29R), environmental search, drainage and water search, Land Registry search (official copies and official search with priority), bankruptcy search against the buyer, and any location-specific searches (e.g., mining, chancel repair) to identify matters that may affect the property or the buyer's use of it (Correct answer)
- No searches are necessary if the property is registered
- Searches are only required for commercial properties
Correct answer: A comprehensive set of searches including local authority search (LLC1 and CON29R), environmental search, drainage and water search, Land Registry search (official copies and official search with priority), bankruptcy search against the buyer, and any location-specific searches (e.g., mining, chancel repair) to identify matters that may affect the property or the buyer's use of it
A prudent buyer's solicitor conducts: local authority search (planning, building control, road schemes); environmental search (contamination, flooding); drainage/water search (connections, sewers); Land Registry official copies (current title and charges); chancel repair liability search; mining search (if applicable); HS2 search (if on the route); bankruptcy search against the buyer (lender requirement). These searches reveal matters not apparent from the title and protect both buyer and lender against latent risks.
Question 3: What is the effect of co-ownership on the legal and equitable title to land under a trust of land imposed by the Trusts of Land and Appointment of Trustees Act 1996 (TLATA)?
- Co-owners each hold a separate legal title to their share
- The legal title is held by the co-owners as joint tenants on trust, while the equitable/beneficial interest may be held as joint tenants or tenants in common; TLATA imposes a trust of land and grants trustees powers of an absolute owner, subject to the beneficiaries' rights of occupation under ss.12-13 (Correct answer)
- Co-ownership only arises when property is held by married couples
- TLATA has been replaced by the Land Registration Act 2002
Correct answer: The legal title is held by the co-owners as joint tenants on trust, while the equitable/beneficial interest may be held as joint tenants or tenants in common; TLATA imposes a trust of land and grants trustees powers of an absolute owner, subject to the beneficiaries' rights of occupation under ss.12-13
Under ss.34-36 LPA 1925, the legal title in co-owned land must be held as a joint tenancy (max 4 legal owners). The equitable interest may be held as a joint tenancy or tenancy in common. TLATA 1996 replaced the old trust for sale with a trust of land, giving trustees powers of an absolute owner (s.6) and beneficiaries rights of occupation (ss.12-13). On disputes, the court may make orders under s.14-15 TLATA, considering the purpose of the trust, the welfare of minors, and the interests of secured creditors.
Question 4: What are the seller's duties of disclosure in a conveyancing transaction for registered land?
- The seller has no duty of disclosure whatsoever
- Under the Standard Conditions of Sale and the Law Society's Conveyancing Protocol, the seller must disclose all latent defects in title, incumbrances, and answer the Property Information Form (TA6) honestly; the seller has no duty to disclose physical defects under caveat emptor, but must not misrepresent or conceal known defects (Correct answer)
- The seller must disclose all physical defects in the property
- The seller's only duty is to provide official copies of the title register
Correct answer: Under the Standard Conditions of Sale and the Law Society's Conveyancing Protocol, the seller must disclose all latent defects in title, incumbrances, and answer the Property Information Form (TA6) honestly; the seller has no duty to disclose physical defects under caveat emptor, but must not misrepresent or conceal known defects
The seller must disclose latent title defects and incumbrances (Standard Condition 3.1). Under the Protocol, the seller completes forms including TA6 (Property Information Form), TA7 (Leasehold Information), and TA10 (Fittings and Contents). While caveat emptor means the seller has no general duty to disclose physical defects, they must not actively conceal defects or make misrepresentations. Fraudulent concealment or misrepresentation in the forms can give rise to claims.
Question 5: What is the significance of the priority period obtained through an official search with priority (OS1/OS2) at HM Land Registry?
- It guarantees that the buyer will obtain good title
- It provides a priority period of 30 business days during which the buyer's application for registration will take priority over any other application or entry made during that period, protecting the buyer against dealings by the seller after the search date (Correct answer)
- It prevents the seller from selling the property to anyone else permanently
- It is only relevant for unregistered land
Correct answer: It provides a priority period of 30 business days during which the buyer's application for registration will take priority over any other application or entry made during that period, protecting the buyer against dealings by the seller after the search date
An official search with priority (Form OS1 for the whole title, OS2 for part) under s.72 LRA 2002 and r.131 Land Registration Rules 2003 provides a priority period of 30 business days from the search certificate date. Any application for registration lodged within this period takes priority over any entry made in the register after the search date. This protects the buyer against the 'registration gap' — the period between completion and registration when a third party could attempt to register a competing interest.
Question 6: Under the Housing Act 1988 (as amended by the Housing Act 1996), what is the procedure for a landlord to recover possession of a dwelling let on an assured shorthold tenancy?
- The landlord can simply change the locks without notice
- The landlord must serve a valid s.21 notice (giving at least two months' notice in the prescribed form, complying with deposit protection requirements and energy performance certificate provisions), and if the tenant does not vacate, obtain a possession order from the court using the accelerated possession procedure under CPR Part 55 (Correct answer)
- The landlord can recover possession immediately by giving 14 days' notice
- No notice is required if the fixed term has expired
Correct answer: The landlord must serve a valid s.21 notice (giving at least two months' notice in the prescribed form, complying with deposit protection requirements and energy performance certificate provisions), and if the tenant does not vacate, obtain a possession order from the court using the accelerated possession procedure under CPR Part 55
Under s.21 Housing Act 1988, the landlord must serve a valid notice giving at least two months' notice. Since the Deregulation Act 2015, the prescribed Form 6A must be used, and the landlord must have complied with deposit protection requirements (s.215 Housing Act 2004), provided a valid EPC and gas safety certificate, and served the 'How to Rent' guide. If the tenant fails to leave, the landlord applies for a possession order, typically using the accelerated procedure (CPR Part 55.11-55.19).
CILEx L6 Property Law and Conveyancing 2
What is the doctrine of adverse possession under the Land Registration Act 2002 and how does it differ from the pre-2002 regime?