The Land Registry is the platform responsible for the registration of title to land in England and Wales. The Land Registry hold information on registered properties in relation to the ownership of the land and any registered rights of way, covenants, leases and title extent.

After a house purchase is completed, the Buyers’ Solicitor send the application to the Land Registry to update the deed to reflect the new owner’s name. The Land Registry website is a public platform that stores the electronic deeds. Of course, there was a time when this platform did not exist and so all deeds were in paper format. The deeds were often held by mortgage lenders with an open account. It then became compulsory to register properties at the Land Registry, but this was only triggered when a transfer of value initiated this. If a property has not been transferred for value since this date, it is possible that the property is “unregistered” meaning that the deeds are still in the paper format.

This slightly changes the conveyancing process as we do it today, we usually download the deeds from the Land Registry which means that we can often check who the registered owner of the property is almost instantly. If the Land Registry hold no records, then we require the Seller of the property to be able to find the original deeds. It is common for several different deeds to be needed to make up the full original deeds.

There are two ways this can be approached by conveyancers, the first would be to issue an unregistered contract to the Buyers’ Solicitors. This just means that the format of the Contract itself and the accompanying documents slightly vary. The rest of the process shouldn’t change much, the questions being raised by the Buyers’ Solicitor will make reference to it being an unregistered contract and the Buyers’ Solicitors will need to submit for first registration at the Land Registry following completion.

The other option is to register the property before issuing the contract so that the rest of the process is the same as normal. The Sellers’ Solicitors would still require the original deeds to be able to do this and would have to wait for the Land Registry to register the property before starting the transaction. Due to there being an ongoing sale, the Sellers’ Solicitors can them apply to expedite the registration so that it does not cause too much delay in the process.

Once the house purchase has completed, the application is made to the Land Registry to update the register with the new owners details.

For further advice and assistance please contact our Residential Property team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

COVID-19 has had a significant impact upon a Landlord’s ability to regain possession of their properties as well as introducing a number of practical issues for consideration as outlined below.

Possession proceedings

One of the key areas of focus within the Coronavirus Act 2020 (“the Act”) is the implementation of further protection for Tenants against eviction.

The implementation of the Act means that Landlords will be prevented from commencing possession proceedings until a minimum notice period of 3 months has been given to the Tenants.

Even Landlords who served Notice or issued proceedings prior to the implementation of the Act will be hindered by further restrictions imposed by the Civil Procedure Rules 2020, which state that all possession proceedings are to be stayed for an initial period of 90 days from 27 March 2020. These restrictions also apply to those who have already obtained a Possession Order against their Tenant and seek to enforce it by way of a warrant of possession (bailiff assistance).

Rent

Tenants remain obliged to pay their rent as it falls due in accordance with their Tenancy Agreement and there is no legal requirement for Landlords to reduce rent or allow rent-holidays.

Government guidance has however urged Landlords to try and work with their Tenants and be as flexible as is reasonable in the circumstances, such as agreeing a temporary payment plan should the Tenant honestly fall into financial difficulty as a result the pandemic.

From a practical point of view, it may of course be beneficial to accommodate Tenants who have otherwise complied with the terms of their Tenancy, rather than risk the property being empty for a short while after the restrictions have been lifted or being let to less suitable Tenants in the future.

Property Repairs

Much as the Tenant’s obligations under the Tenancy Agreement remain in force, so do the Landlord’s. This means that Landlords remain responsible for necessary repairs to their property, such as boiler repairs or plumbing issues.

Government guidance has however urged both Landlords and Tenants to take a ‘common-sense’ approach to this for non-essential repairs and that Landlords, agents and workmen follow the social-distancing measures wherever practicable.

If you are a Landlord and do reasonably face difficulties in arranging access to your property due to COVID-19, we would urge you to document your attempts to access and remedy any issues reported by your Tenants as well as the reasons for said attempts being unsuccessful.

For further advice and assistance, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email litigation@franklins-sols.co.uk.

The United Kingdom and the rest of the World continues to deal with the COVID-19 pandemic, with different countries using various techniques to not only take control but keep their economies as stable as possible. Whilst the UK Government has passed emergency legislation on a number of measures including the Business Interruption Loan Scheme, many businesses are either struggling to access this through their lender or have their reservations about using it.

One of the main issues for companies is maintaining their cash flow whilst the economy is virtually remaining on hold for the foreseeable future with no certain timeframe for things getting back to normality. If you or your company has cash tied up in its assets such as property, then there are a number of ways that you can release this cash to help get you through this intense and uncertain time.

Selling property

Whilst most of the residential conveyancing market is on hold due to the issues of moving families during the lockdown period and lenders appearing to withdraw most of their higher percentage mortgages, many investment companies will still be looking to increase their portfolio with more buy-to-let properties. These companies commonly have interest only mortgages which require a much greater percentage of the purchase price to be deposited by the company before the mortgage offer is granted. There is still a market available for these types of purchasers.

Alternatively, if you have enough equity in your property and the buyer does not have enough disposable cash to be a cash buyer, you could sell the property at the market value and take the percentage of cash available from the buyer with the remainder being protected by way of a legal charge over the property for a negotiated period. This would then give the buyer time to seek a mortgage or bridging loan whilst allowing the sale to proceed and improve your cash flow at the same time.

Re-financing or additional security

Whilst many institutional lenders are restricting their availability of products, a number of finance companies are still offering mortgages or bridging loans. Whilst these are likely to be more short term and have higher interest rates, they may allow you to release the cash tied up in your property allowing you to get through this period of economic uncertainty. You may then be able to access a better product and remortgage once the economy has settled. If you have enough equity in the property, a finance company may be willing to take a second legal charge over the property subject to your primary lender giving consent to the same.

Sale of freehold with leaseback

If you own the freehold of a commercial property then you can potentially release any cash available from the equity in the property by selling the freehold reversion to an investor. There are still a number of investment companies with monies readily available such as a pension investment schemes. The freehold can then be sold with a simultaneous lease back of the premises to your company. This allows the company to receive the monies from the sale of the freehold yet still have the occupational benefit of the property. Terms of the leaseback would need to be negotiated with the buyer and further advice should be taken on this to ensure that you are adequately protected.

These options will vary depending on your circumstances and so will the implications of the same. You should take advice from your Accountant or Financial Advisor before proceeding to ensure that you do not have any unwanted tax consequences and that it benefits your business as a whole.

If you need any advice or assistance in relation to these transactions then Franklins are here to help. Please contact Reece Chapman, Solicitor in our Bespoke and Commercial Property team on 01908 660966 / 01604 828282 or by email at reece.chapman@franklins-sols.co.uk.

What’s a ‘Break Clause’

A break clause is effectively a ‘get out clause’ allowing a tenant to terminate its lease before the expiry of the contractual term.

It’s important for a tenant to secure a break clause within its lease, as it’s difficult to predict the position of a business years down the line. It could also give a tenant the opportunity to re-negotiate on more favourable terms.

Timing

The lease will stipulate a notice period by which you must serve notice on your landlord. This is usually 6 months in advance, however it may be longer. It’s advisable to consider your options a year before the break date, to allow yourself ample time. My advice would be to diarise the break date, the latest possible date by which notice must be served and a countdown to that date.

The lease may also specify a certain form in which notice must be served and failure to comply will invalidate the notice.

When serving notice, remember to allow sufficient time, especially if your landlord is based abroad.

Break Conditions

Break clauses usually have specific pre-conditions which must be satisfied for a break to be effective.

A landlord may attempt to include onerous conditions, which a tenant is likely to find difficult to comply with, in turn leaving its break invalid. An example of this would be the requirement to give ‘vacant possession’. Failure to comply with these conditions will result in a tenant being tied into the lease for the remainder of the term. A break clause with difficult pre-conditions defeats the commercial objective of the clause and should be resisted.

The Lease Code 2007 stipulates that the only pre-conditions to a tenant’s break clause should be for the main rent to be up to date, giving up occupation and leaving behind no continuing subleases. Whilst the Lease Code is only a framework and provides recommendations, it attempts to achieve a fair balance between the parties and a tenant could refer to this in early negotiations, when heads of terms are being drawn up.

It’s important that break conditions are negotiated, as they are strictly construed by the Court and tend to arise as a main dispute between landlords and tenants. It’s therefore advisable to seek legal advice before entering into a lease, to ensure the option to break can be exercised, should you so wish, later down the line.

If you would like to discuss a Bespoke or Commercial Property issue or require additional information about leases or break clauses, please contact the team on 01908 660966 / 01604 828282 or email commprop@franklins-sols.co.uk.

Yes.

The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament which is otherwise known as “TOLATA”. This Act gives the Court powers to resolve disputes regarding the ownership of property and land.

There are a number of reasons as to why an individual may choose to issue a TOLATA claim and below are a few examples:

1. To have your named removed from the mortgage and legal title;
2. An application made by a family member such as a parent, sibling or grandparent who wish to receive their financial interest in the property;
3. To force the sale of a property which you and the co-owner inherited from a deceased’s estate;
4. When an ex-partner refuses to leave and you wish to occupy your former family home alone.

The above are certain examples as to why an individual may wish to issue a TOLATA claim but when such a claim is issued there are three main types of application under TOLATA which can be presented to Court:

1. An application to the Court requesting an order of the sale of the property to enable one co-owner to receive their financial interest in the form of net sale proceeds;
2. A request that the Court decides which co-owner is entitled to occupy the property;
3. A request that the Court decides the extent and nature of ownership if the property is owned by two or more individuals.

Do I just make an application to Court?

As with any disputes, there is a process and the Court expect the parties to resolve matters, if possible, without utilising the Court’s resources. Before any claim is issued a Pre-Action Protocol Letter of Claim will need to be sent to the co-owner outlining the claim and what is sought.  Each party is under a duty to ensure that they negotiate and it is often advisable for parties to settle disputes by means of Alternative Dispute Resolution to avoid Court costs.

What happens if the co-owner refuses to cooperate?

If this comes to no avail, then the applicant will need to issue a claim under Part 8 of the Civil Procedure Rules 1998. This involves completing a Part 8 Claim Form and producing a Witness Statement setting out their claim and what order they seek from the Court. 

In determining whether to make an order under TOLATA the Court will consider a number of factors.  Some of the factors that the Court will consider would be the intentions of the parties and in particular the reason why they purchased the property and for what purpose.  The Court will also consider if there are any occupants under the age of 18 in the property and any interests in the property such as whether there is a lender. 

If you require legal advice or assistance in enforcing the sale of a property or on TOLATA, please do not hesitate to contact Maninder or a member of the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.