next a brief point about the lenders requirements to do well, insolvency considerations where an entry in the bankruptcy searches revealed against the name of a bottle of mortgage or or guarantor. The hung book before December said that you must certify that the entry does not relate to the barber or mortgage or guarantor if you're unable to do so from your own knowledge or enquiries that because they have been changed so the word certified has been replaced with satisfied. So now you must be satisfied. The entry does not relate to the borough of mortgage or guarantor if you are able to do so from your own knowledge of enquiries, or if, after having obtained office copy entries and making other enquiries, if you receive it, you are unable to study for yourself. The entry does not so relate. You must report there's tools in which case the lender may withdraw its offer. When we point about bankruptcy searches, it may well be the case that it's preferable to do these before exchange of contracts. I only mention the case a few years ago where contracts were exchanged on the day after exchange of contracts, bias listed then carried out bankruptcy. Surge on the results of that showed those entry into the bottle. The bias list, I'm told, checked on the individual insolvency. Magisterial is a free online register Still couldn't satisfy himself, as was the requirement. Andi. You then made further enquiries of the official receivers, and it took two weeks to get clarification that the entry did not relate to the clients. That's the story. Remember telling me I had to write a check for Asik? Significant sum of money because there was a chain involved on that been a delay of completion bio to about two weeks. So another indication about bankruptcy is whether or not there's a bankruptcy restriction on the register or bankruptcy notice. But this would usually be applied against the seller rather than the buyer, So bankruptcy notices or bankruptcy issues from the register usually apply to the cellar. And that's of course, you doing every mortgage. If you remortgage, then the issue of the restriction or notice would give you notice by virtue of the registration, the notice on the register, the aggressive price has been made bankrupt transactions at an undervalue our necks of yet Andi, the humble says. If you are aware that the title to the property so get to a deed of gift or transaction and a one parent undervalue completely within five years of the proposed mortgage, then you must be satisfied. We will acquire are interesting, good faith and will be protected. The provisions of the insolvency number 2 1994 ago cybersecurity being set aside. Usually, people take out indemnity insurance policies, but you may find that these insurance policies don't cover the person who received the gift or who was the trumps very in the transaction and undervalue. The reason for this is that the trustee, in bankruptcy within a five year period cannot seek set aside against the person who has a quiet, their interest in good faith and the person who is the beneficiary of the undervalued transactions. So, no, there's the person who received the deed by deed of gift or transaction. To see if we can undervalue from the person who subsequently made Bunker with the next five years is not never is a bona fide impetuous, so they are always at risk of a trustee in bankruptcy seeking sex. I of that transaction it's worth also bearing in mind that irrespective success entitle from the personally benefits from the transaction undervalue the trumps free there. The transfer suggesting title are likely to be regarded as bona fide purchases for value, and they're also likely to do that if at the time they acquire their interest, they were not an associate off the trumps. Fraud trance free under the transaction undervalues on if their time they acquire their interest. They have no notice the the previous owner of the property had been made bankrupt. Have a look at the notes on that particular respect? It's also highly likely this is probably the reason why indemnity insurance is freely available. Mortgage. It's also highly likely that mortgage lenders will also be regarded as arms length bona fide purchases, particularly where they're convinced has properly done on our swollen oh hours to search on completion on no adverse entry relating to the bankruptcy off, a previous owner off the property has appeared on the register. Next, a look at incentives, incentives on new bills and incentive generally on your bills. The Lenders Handbook requires the convincer to obtain a completed CML disclosure of in census form. Originally this had to be provided directly from the cellar or conveyance or acting on behalf of the cell. Now, what the CML says in its amended form is that you must obtain a copy or completely copy of the disclosure of in census form for any property that is to be occupied for the first time, or for the first time in its current form. Because of renovation conversion, you should only report incentives to the lenders instructed below, so there's no requirement that the form now has to come directly from the cellar door developer. The other point about incenses into the handbook, which applies generally, is the obligation to inform the land if the contract provides full or you become aware of any arrangement in which there's a cash back to the buyer. Part of the price is being satisfied by a non cash incentive to the buyer or in the indirect incentive, cultural, long casted or rental guarantee or any such arrangement may lead to the mortgage offer being withdrawn. There's a duty to report any money over which you have no control unless the money is a deposit held by an estate agent or reservation feet to a building, which is not more than £1000. Check paragraph 6.4 point four and 6.4 point five of the humble in those respects. I also think that there are obligations to report to the lender. In many cases, the bottle is consent will be needed. If the borrowing doesn't give consent to the disclosure of the incentives, then the community would be obliged to cease to out in those cases. But I will come on to another issue, which we will look up later in. This presentation is about the disclosure of the file on request from a lender. Some lenders are procuring advance authorities from borrowers to release the conveyancing file to the lender or the Landis solicitor, and that's what did not come back to later. So you do need to be aware of that with any convincing final what you're dealing with about your acting for a borrower under Linda. In other words, the borrower may have waived its rise to legal privilege even before you receive the mortgage offer. Next, I look at the lenders humble requirements in respect of new properties, which also incorporate properties which have been newly converted, so the lender generally will require a scheme a warranty scheme, which is acceptable to the lender. Any species normally universe acceptable. But in respect of any other home warranties game, the lenders Part two instructions need to be considered. Also, it's a requirement to obtain a cover note before sending the certificate of title governor access evidence that development warranty scheme has actually been issued. It's not enough to rely on a reply to an inquiry about the cover note. So it's not enough for the developer or the developers list is even to say that the cover that has been issued by US committed needs to actually see it, whether probably doesn't have the benefit of which is game. Then we have to check the lenders party requirements if the property its new, always been converted within the past six years to see whether or not it would accept a building that has been monitored by a professional consultant. If they don't accept that, then the consultant will have to provide the lenders professional consultant certificate in the standard form, And the consultant also confirmed he has appropriate experience in the design of monetary of the construction or conversion of residential buildings. And he has one of the qualifications. Have a look at that lenders handbook to make sure that he's qualified with one of the bodies that is acceptable to the see him. A lot of this humble paragraph 6.7 point five should also be consulted to ensure that the level of indemnity insurance which is being offered by the consultant, is the level which is required by the handbook. How won't you seem to be familiar with so I don't propose to go into them in any great detail, but I will talk about the PCC for professional consultants certificate. This is called the architects. Difficult on This will certify points such as the architect visited the site, it appropriate periods from commencement of construction to current states to check generally progress in conformity with drawings, for example, it will also confirmed the liability of the architect for six years from the date the certificate to the first purchase and London's on the minimum amount off Professional indemnity insurance. No, there was a case which I think you do need to know about. If you are relying on the stickers, need to be very clear about that. It's not always the case that you can rely on them. In home versus Optima Cambridge Gotta feel had to decide whether or not ritual purchase and success entitle hard claims in negligent misrepresentation. What happened is that the development of my business on the architect had negligently certified that works to various apartments have been constructed satisfactorily. So it was the point. The parties who would not parties to the action, who had already managed to settle their proceedings were regional purchasers who had received the final certificate before the exchange contracts. The little purchases who received the science architects difficult after they've exchanged or possibly after completion may know have a claim in negative misrepresentation against the architect. The reason being for that that if they only receive a draft version, the court say that they cannot rely on the final sign version. The draft version doesn't take effect because he's not intended to be so. If you receive the final certificate after you've exchange or completed, then your client would not have a claim, potentially miss representation or, more specifically, negative misrepresentation. You don't even success in title within the 60 appeared will not have a claim against the architect because they cannot show that they've relied on the certificate on the certificate itself is a certificate and it does not constitute a warranty. So the letters, Part two Instructions say that the London requires a warranty. But you need to know that the certificate it's Standard Form was approved by the Hon book is not a warranty. Next, I'll just make a brief point about the Lenders Handbook 6.9 point two, which deals with easements. And this provides if the borrower owns adjoining land, which the borrower requires access to the property over in respective which services of Brian to the property that I must also be mortgaged to us unless all relevant easements granted in the title of the lung to be marketed to us and those rights are and remain enforceable in accordance with the provisions of 6.1, which you can have a look out. So there's been an amendment which clarifies that where the borrows adjoining land in certain circumstances, it wouldn't be a requirement. Teoh Mortgage, the adjoining land, as long as the lump to be charged has valid easements already granted over that adjoining land, also by briefly vice preemption restrictions on resale. If there are any, they need to be reported. So all right, preemption is sometimes called the right of first refusal. This is a right whereby if the over poverty decides to sell that, that person is constrained initially to offer to sell to a person on the bike fest refusal, and that would be before any sale could take place to 1/3 party drops in agreement. The usual form of option agreement is, well, where somebody has an option to buy land or freeholders in London. They excite the option by serving notice within the time span specified in the option agreement on and by complying with various conditions, procedural or otherwise, in the option agreement. So it's all bearing him up was also bearing in mind that your common form of right of first refusal is that which supplies within 10 years off a talent acquiring council house look, a shadow shit leases. Also, in the current version off the model Sanders, at least there is a right of pre emption within 21 years, which gives the love water right of first refusal. If the lease has been staircase 200%. And if there is a disposal within the 21 years following finals, Dad casing, Do you think my restrictions if a restriction will remain after completion? So there is. If you're not satisfied that on completion of the purchase for the mortgage that the restriction will be removed or there's no contracts obligation to for the summer to remove the restriction, then the restriction needs to be reported. And generally we're talking about one metre. Restrictions on the purpose of the large measure restriction generally is to impose a precondition or a series of pre conditions for the registration of a disposition. A restriction doesn't prevent a disposition caring by and large, but it may provide that you can't read to stop his position without complying with certain preconditions. So three typical conditions would be where there is a need to obtain a certificate of compliance. For example, with the provision of police from the management company, such is the full now or any to obtain a written consent from Elaine Party such as the foreman. There may just simply be a restriction which requires notice of a disposition to be given to a name party switches the for my eye, which requires somebody with a beneficial interest. It is a right or claim in relation to register the state to be given notice of any disposition. Andi, when the disposition consider registered for a certificate to be signed by the applicant. Frustration of the convincer, the written notice of disposition. What's given to that person. The other point, however, is that in the case of the restrictions which wire a consent Pacific, it's in effect is a is a practical impediment on the right of the person to sell that property. Because if the bio can't guarantee to register their colorful without the production of the difficult consent than the bias, combines is going to see possibly deferred exchange on completion until such time as the buyer could be satisfied that the buyer has a watertight undertaking from the cells, conveyance or assurance, or from other means that the certificates, all the consent, will be made available. In some cases where the bias conveyances air. Seeking to take obtain a certificate from a management company on the assignment of the lease. It's not unknown for management company to receive notices, deeds of Covenant and receive payment of the fees for registration of notice off assignment of mortgage, and then to take an inordinate length of time to issue certificates of compliance, which required them the restriction of monetary than does have the opportunity in that situation to deal with an application which is made after registration, whereby the buyer then applies to dis apply the restriction and the purpose of doing so is that the law industry that agrees that there should be this application would in fact then give the African frustration a three month window within which the application could be completed without the need to produce certificate. I'm really not situation. The medical complete only has itself to blame because it's delays half caused the holdup in registration. So if it wanted Teoh impose the certificate as a pre requisite to a registration, then it should have acted within a reasonable time off receiving the documents in the fees from the bias conveyances. So advocating to this application can be made usually where the land registry is satisfied that the bias convincer has taken all reasonable steps on excellent best endeavours to obtain the certificate and notwithstanding those endeavors the certificate has not been obtained. It's particularly important if the bias convinces find that their priority period is about to expire pretty soon or if the land registry is not prepared. Teoh sanction extension off a deadline for registration, beyond which consolation of the application restoration is likely. Just a three point about the lenders hung book on what it says about indemnity Germans. In truth, there are only a few references to indemnity insurance on many of these cases. It will be either for the conveyancing to decide whether not indemnity insurance enough, for example, in place off a deed of variation or whether or not in some cases, maybe the lender requires a report on a request for authorization to proceed with an indemnity insurance policy book. Indemnity insurance policies cover a range of risks. They could be absent easement. I would just mention that my understanding and this is pure down a total. But my understanding from people who have claimed on these policies and underwriters from these legal insurance companies I've spoken with is that disputes over easements rights away one of the most common causes of claims on these policies, and it's easy to see why if if somebody enters into a dispute with a neighbour over access to the property can significantly affect the value of their property. Onda. We see every year that when it comes to dispute before the courts, and particularly over frail properties, that rights of way account for a significant number off those cases. Well, that is certainly one of the indemnity insurance policies where what needs to look out for 40 mentioned absentee landlords? Other indemnity insurance policies? Yes, take them out. But even if somebody takes out building regulations, indemnity insurance policy for absence ability, regulations, it's rare that local authorities, after the 12 months period of us elapsed since practical completion of work, please don't comply with building regulations. It's rare for the councils to seek injunctions, so those policies would pay out if the council threatening vote threatened or take enforcement proceedings. Um, both. It may well be that there is a wider issue. If building regulations have not been issued, it may well be that the structure off say a loft conversion is not structurally sound, and that arguably would present a danger to the occupants and possibly to the public at large. which would be a more of a concern than just simply the remote possibility of an injunction being issued. If, if works which were authorized are structurally unsound, that would be an aggravating factor, which may induce a council to seek an injunction. But really, about being about indemnity insurance policies is that they don't remove the title defects. Title Documentation on the Local Some book originally stated it was good practice that the signature of a document needed to be witnessed by a solicitor, legal executive or license remains. Now, it says, unless we say otherwise in our individual instructions, signature of a document that needs to be witness must be witnessed by an independent person. It doesn't have to be a professional person. The witness's signature. It was clearly recalled witnessing the signing of the document by the individual concerned. The name and address of the witness must appear, so that's an important point. And that aspect of the humble has been changed in December 2014. Have a look at 11.2 point one. Just a freebie points about execution of a deed that comes sometimes be unusual cases. You might just have a look at the Line Mysteries Practice Guide on Execution Feeds Somebody may not read English, so if that's the case, the document maybe read over to them in their own language, and then they can execute the deed. If they are unable to sign, they may make a mark or a document may be signed on their behalf in the But if a document or did he signed on the behalf of somebody, then they also need to be two witnesses present who also signed needs of the present. So again, have a look at the line mystery practice guy on execution, please. You're important about making sure that the signature is witnessed is that from times time one hears of cases where the witness said, Well, the document was signed and was presented to me for signing, but he was already signed before I signed it. So in other words, the Whitney says, I didn't see the mortgage or or I didn't see the transfer or signed the document. And if that's the case, the document doesn't take you back to city That happening, Carlin Raymond in kind of a man. What the court said is that because the document was in writing, only it wasn't indeed, then it only affected a transfer or assignment of the equitable interest of the Trump's foreign property to the buyer. Also beginning with a mortgage deed recent, properly signed and witnessed. Then at best, the lender has an equitable mortgage on certain of the right to repossess, which are incorporated within the Law of Property. Act 1925 are not necessarily available to an equitable mortgage. E Equitable Mortgage E has more limited about rights to apply to a court for an order for sale. Next on the so gets of post completion have been some important changes, but to the provisions relating to registration, So 14.1 point one in December 2014 has been dated. So this remains the case that the obligation to register as a first legal charge the obligation to save a copy of the certainly official search, together with certified copy that transfers and mortgages even any discharge or release is received from previous More G has been deleted, although of course you may still wish to retain those as a matter of professional judgment. 14.1 point five on this originally stated you before the 72,014 navigation frustration must be received by the long registry during the priority period afforded by the relevant search. But it says please check hard to to see if we require the original mortgage deed to be returned to us. The December update also says Check to see in the park to whether or not we require any other original title documents to be returned to us. Of course, along the street, there was a policy. In many cases, if you send original documents to them, they will be scanned and destroyed. And of course, you will be hoping that they will scan the document double sided. Every single page on will copy the plant to scale. It doesn't always work like that, of course, is you know, But that is certainly the theory. It's also been added that you may use any available language process for registration, including electronic registration, but which, of course has in recent months been encouraged by the lemon tree. And it says you should retain any original documents until you're satisfied. Registrations complete, you are not otherwise required. Best retain any original documents. There's also been a clarification to 14.2 point one regarding title deeds, office copies, searches, enquiries, consents and requisitions and documents relating to the property they must be held to the lenders. Order on the words have been inserted. They must be held to order pending completion of the retainer, and you must not create or exercise a nearly, you know, for them. So the lian would pay for the purpose of on trying to recover any unpaid fees from a client. Of course, it does say in the handbook that any fees or expenses which convinced, hasn't, uh, received in full from a bottle a client that ultimately it is the responsibility off the community to make sure that those fees are paid on their appropriate undertakings. In the handbook that cover such things as stabbed each other on tax administration fees, etcetera, two people points about official searches generally only have priority. If you've made your application registration within the priority booted search, it's not possible to extend the priority beauty of a circle that the best we can give an extension of time for dealing with requisitions if very, very small number of cases that I mentioned during the period of an hour sponsored receives a competing application from 1/3 party. This might be a seller's trustee in bankruptcy. Southers second Mortgage E that you know mortgages reach have been created or a second mortgage. The bite account, which haven't been notified to the first mortgaging be some very, very rare occurrences. Another one is also a matter of your HomeArts. Native trees have been registered against the property shortly after exchange of contracts by the spouse of the person who was sold the property that used to be a matrimonial home so that it's not possible to extend the priority period of search. So you have to do a new surge on if your application of registration is cancelled in the event. It's always a good idea to consider a unilateral noted as opposed to a new surge, because if the cancellation of the application is to do with the provision of information or document and attained, informational documentation is outside of your control than there is a slight risk. If you rely on the official search that if there is 1/3 party adverse application during the currency that search, then when the information of documentation is eventually supplied to you. If you then submit that after the original search, and then simply do it pursuant to a a priority period of a later search that the later search will be subject to the third party. Adverse implication. Where is if, say, on a Monday this notification, that long mystery is come sold on application registration, then on the Tuesday by, has stripped by his own mortgage ease. Composers apply for, you know, a little notice, which, of course, will cost money. Then all things being called subject to any order to remove the U Natural, which is issued by a judge in the first year tribunal, which has replaced the unless rededication system or by the calls. Then the unilateral notice would give priority to the interests of the buyer on the mortgage a which the notice is intended to protect. And if we look at the Building Society Association instructions one way that this difference from the exam because he says, if you come up, register our mortgage within the priority period, then you must read story, you know, actual notice. To protect our position. Have look at paragraph E 30 that says that simply renewing your language Research Original Lambert Research Not acceptable Just a few brief points of art notices. The basic rule is the priority of an interest effecting a registered charge or estate is not affected by disposition of the state or interest, but that is subject to Section 29 which deals with certain dispositions for valuable consideration that slightly broadened the scope of the course. But you will notice that the overriding interest is not an interest, which is always up noted on the register of title. All though, with the disclosure form disclosure of any describable interests the D I form. Then, once an overriding interest is noted on the register, the notice on the priority of the interest will then be governed by the notice rather than the interest being an overriding interest. That's really going a bit way beyond the scope of this course. But if it interested the subject of a notice the priority of the interested only protected by the Lepsis if the notice itself is valid, sometimes there may be a preference to go for a unilateral notice because in some cases it's easy to get one of these registered but one aspect of this is that what you not to notice is registered? Then notice of the entry of the United Notice will be given to the red Super bright in any registered geology on. Then the recipient of the elementary noticed may then apply for the removal off the, you know, actual notice or his consolation as the case may be, that may also be an objection to the registration. Again, all of these things are well beyond the scope of this particular course. Let's have a look. A toothy provision off a handbook dealing with your mortgage file. So what this says now is that it retains the requirements that for evidential purposes, you must keep your file for at least six years from the date of the mortgage before destroying it when he also stated you should retain on file. Those documents are specified in the restrictions on the lenders Part two and any other documents which were reasonably competent conveyance it would keep. He also refers to micros fishing data imaging or material held electronically constitutes of suitable compliance with this requirement. Another point is added about the purposes of some fraudsters to demand the conveyancing file on completely able to destroy evidence that may later be used against them. So there's a warning about that in the same book, just a reference to the case of Mortgage Express versus Somali. In this particular case, the bottle was signed application form. We included a authority to you. Quote irrevocably authorized our convey answer to send them entire file related to the whole transaction, not just alone to you. I either lend your request i e. The lenders request. Well, the court said, is that while legal professional privilege generally applies in the absence of any fooled, then in this particular case, the authorization was unambiguous, irrevocable and binding on both bottle on blender. So consequently, the mortgage he was entitled to the entire file related to the mortgage transaction. It was also a bearing in mind that mortgage lender may have retained an authority which is no expressed to be your vocal. But if it hasn't been revoked, then the authorities still likely to be current. So I am aware that a case where the courts have found that on authority which was signed sometime before the court proceedings was still coming, not because it was expressed to be irrevocable because there was no evidence before the court that the authority had been revoked. Next issue about deeds off variation on Dita rectification We've referred to these briefly in the concepts of leases. Andi. This reversed Teoh if they if they if they let the consents to any deed of variation or rectification. So in a way, these cases, the lender would have to give consent. However, unsurprisingly, the lender under the hum book, um, would usually give consent, provided that the Convincer Festival confirms in writing, in accordance with its party requirements, that the security of London will not be adversely affected in any way by end entering into the deed on. And usually, if the lender gives that confirmation, it will not normally need to see a draft off the deed. Weather about the party, whether not the lender is a party to the deed or a separate deed or a form of consent is a matter for discretion. Again, have a look at the London's humble requirements and any part twos in relation to deeds of variation, so typically deter various of explication. Your site, the relevant title members, as the case may be if you cite the original deed, you will confirm the agreement of the parties to very or rectify the original deed. Andi. You will then specify which of those provisions are going to be amended or rectified which of the provisions of the original deed will remain in full force effect without any amendment. Confirm the deeds intensively binding not only on the current parties to the D, but they respected success in title and make appropriates entries in the deed before registrations to be made against both titles. There's also just a brief fight, this dimension on property that's a complete completion at 6.6 point two. It states that where the property or part of it is already left always do collected completion, then the letting must comply with the details set out in the mortgage offer or any consent to let we issue. Now. If the properties already leads, then it's unlikely that if the lender is notified in advance of that fat, Belinda would agree to procedure to the handbook. It probably would require a bite of that mortgage, but it is already a completion. Then the lighting was complying with the details in the mortgage offer the hunt. This provision handbook has also been changed. This the letting does not comply or no such details of mentioned regarding the letting in the mortgage offer. Then you must report to the position to us and see Part two of our requirements. Another important aspect of the humble Christie strategy. Mortgages. This is a topic which I could spend quite a bit of time on all of this venture in case of a I B group against Mark Redman. Coat this involved every mortgage involving a 3.3 million secured events. On the day of completion, this list just telephoned Bar Place for redemption statement, and they were told it was approximately 1.23 million in order to be a mortgage. The representative of the firm who made the call could not remember if they had mentioned any mortgage accounts. During the conversation, he turned out that Barclays hunt on mortgage charge over the property, but to linked accounts in the mortgage redemption statement only applied to one of those accounts. Now, typically, when conveyances are applying to a lender for redemption statement, they will last for all money going on A slender to verify all money owing on all accounts linked to the mortgage. Now this case highlights the danger off, relying on telephone requests for market redemption statements where they are made it support to make sure that you do ask for all linked accounts if you are chasing mortgage terms a statement, for example, and make sure that any accompanying letter to the lender also to confirm the conversation highlights that you have asked for confirmation off all money owing and all linked accounts as well. By the way, the amount of negligence case in this particular case amounted to £273,774.4 to 2 pencils. Was the additional sum required to pay the balance outstanding on the second secured account on the bank who had taken the benefit of the remortgage? Even golden US had argued that and this list is firm should be liable in the amount of around 2.40 point £5 million. But the argument was unsuccessful because the additional liability that the bank was seeking the court held was not unlimited by causation or remote. This so that was a Supreme Court case on that is a mistake, which, under the pressure of work that can easily be made if appropriate safeguards are not put in place to guard against that, continue to see happening.
Webinar 1
Slides
1651 Users
38 Courses
51 Reviews
