Commercial Conveyancing - The Law Society
Transcript of Commercial Conveyancing - The Law Society
Commercial Conveyancing
Commercial Conveyancing –
What’s Hot, What’s Not?
by
Stephen Jackson
Member of the Conveyancing and Land Law Committee, the Law Society
Consultant Bond Dickinson
Commercial Conveyancing
Property searches - current issues in an expanding market
Mines minerals and chancel repair
Arranging incidental insurance – does it have to be so
complicated?
New Short Form Model Commercial Lease
Property Searches
To what extent can you rely on?
•Official searches
•CoPSO and Regulated local searches
•Commercial searches
Property Searches
Three Recent Cases
Case 1
Rail Accident Report
Penetration and obstruction of a tunnel between Old
Street and Essex Road stations London 8th March 2013
Published by the Rail Accident Investigation Branch in
February 2014
Property Searches
Case 2
Orientfield Holdings Limited v Bird & Bird [2015] EWHC 1963
• What is it about?
• What are the usual searches?
• How not to report on search results
• Ambiguous replies to enquiries
• Duty of the buyer’s solicitor
Property Searches
Case 3
Chesterton Commercial (Oxon) Ltd v Oxfordshire CC 2015
EWHC 2020
• Liability for an incorrect reply to a local search
• Duty of care in tort - Hedley Byrne v Heller
• Diminution in value
Mines and Minerals
Three types of ownership:-
•Manorial – preserved rights on enfranchisement of
copyhold land by reference to a statute (Copyhold Acts
1841 – 1894 or Law of Property Act 1922)
•Inclosed – ownership of mines and minerals (and
sometimes sporting rights) reserved to Lord of the Manor
on the inclosure of former common land
•Reserved – mines and minerals reserved to seller on
sale of surface land
Mines and Minerals
Manorial Rights
Lords of the Manor generally controlled land and minerals within their manors
Tenants occupied the land - right of occupancy evidenced by producing a copy of the
manor court roll showing their admittance – “copyholders”
Copyhold land could be enfranchised voluntarily at any time – Lord generally
retained minerals (and sporting rights ) – registrable if excepted and reserved
Copyhold Acts 1841 – 1894 created a statutory framework for enfranchisement –
preserved staus quo
Law of Property Act 1922 – automatic enfranchisement of all remaining copyhold
land
Rights preserved to the Lord by reference to an Act are “manorial rights” – Eardley v
Granville (1886)
At risk since 13 October 2013 unless protected by Caution, Unilateral Notice or pre-
existing entry
Mines and Minerals
Inclosed Minerals
Inclosure was a system of enclosing open fields and common land
Inclosure created private plots and extinguished common rights over nearly 11,000
square miles of land
Before1845 a private Act was required, followed by an Award
Inclosure Act 1845 – standardised procedure for Awards
Most Acts / Awards reserved minerals and rights of working (and sporting rights) to
the Lord of the Manor
Not considered “manorial” but intrinsically linked to the Lordship title – registrable
but not obligatory
Mines and Minerals
Reserved Rights
Surface land conveyed by freehold owner, but he/she excepts and reserves mines and
minerals (and possibly rights of working)
What is reserved will depend on the wording of the reservation
Are “mines” reserved? If so, this means the space comprising the strata of the relevant
minerals and the void space left behind once they have been extracted
Does it specify minerals (eg. sand, gravel, clay etc) or simply refer to “all mines and
minerals”?
Coleman v Ibstock Brick Ltd [2008] – minerals are “substances exceptional in use,
in value and in character ”
No need to register pre 2002 rights
Mines and Minerals
Star Energy v Bocardo SA [2010] UKSC 35
•Oxfordshire Estate owned by Bocardo
•Diagonal drilling by Star from neighbouring land to access
oil well
•Oil owned by Crown
•Drilling through Bocardo’s minerals was a trespass
•Damages were small as Star could have used CPO powers
Chancel Repair
Burden attaches to former rectorial land
Obligation to repair the chancel of a pre-reformation
church or chapel
Records patchy and often difficult to identify pre-
reformation parish boundaries
Does not attach to leasehold interests in land but beware
of service charge trap
Is insurance the answer?
Lord Avebury’s Bill
Arranging Insurance
Financial Services and Markets Act 2000
FCA Handbook: Principles based regulation
•High level standards
•Prudential Standards
•Business Standards: Insurance Conduct Of
Business Sourcebook (ICOB)
•Specialist Sourcebooks: Professional Firms
(PROF)
Arranging Insurance
Insurance Mediation. What is it?
Part XX Financial Services and Markets Act 2000
Exemption from regulated activities by designated
professional bodies - Sections 326 & 327
In 2001 the Law Society became a designated
professional body
Arranging Insurance
To come under the professional body umbrella
you must:
•satisfy the requirements in section 327 and
•comply with the designated rules
Arranging Insurance
Arranging life policies is outside the scope of the Rules
Must account to client for any commission that you receive
Suitability
A fair market analysis
Demands and Needs Statement
Execution only client - really?
Exclusion from disclosure of information, suitability and
demands and needs for large risks