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A Practical Approach to Conveyancing A PRACTICAL APPROACH TO CONVEYANCING SEVENTEENTH EDITION Professor Robert M. Abbey BA (HONS), SOLICITOR Judge of the First-tier Tribunal (Property Chamber) (previously Deputy Adjudicator to HM Land Registry) and formerly Professor of Legal Education and Practice, UniversityMaterial of Westminster Mark B. Richards LLB (HONS), SOLICITOR Senior Lecturer in Law, University of Westminster Copyrighted – http://www.pbookshop.com Preview 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Robert Abbey and Mark Richards 2015 The moral rights of the authors have been asserted Fourteenth edition 2012 Fifteenth edition 2013 Sixteenth edition 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v2.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)Material Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2015939038 ISBN 978–0–19–873572–4 Printed in Great Britain by Clays Ltd, St Ives plc Links to third party Copyrightedwebsites are provided by Oxford in good faith and for information only.– Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. http://www.pbookshop.com Preview MH15220493608440 1 INTRODUCTION A AN INTRODUCTION TO Key points summary: Defensive lawyering CONVEYANCING ....................1.01 and the conveyancing process .........1.156 Our approach in this book ............1.01 D CONVEYANCING AND INFORMATION An introduction to conveyancing .......1.04 TECHNOLOGY .....................1.157 A conveyancing timeline ..............1.09 Useful websites ....................1.164 Conveyancing of unregistered land ......1.10 Key points summary: ................1.164 B CONVEYANCING OF REGISTERED E THE FUTURE OF CONVEYANCING ......1.165 LAND .............................1.12 Introduction ......................1.165 Conveyancing of registered land ........1.12 Gazumping and conveyancing reform ...1.167 Key points summary: Registered land One-stop conveyancing and conveyancing procedures .............1.137 conveyancing call centres ............1.173 C DEFENSIVE LAWYERING IN Energy Performance Certificates .......1.179 CONVEYANCING ...................1.138 E-conveyancing ....................1.181 Defensive lawyering and the The Law Society ConveyancingMaterial conveyancing process ...............1.138 Quality Scheme ....................1.200 A AN INTRODUCTION TO CONVEYANCING OUR APPROACH IN THIS BOOK Copyrighted Introduction – This book has been written by two legal academics and solicitors who between them have 1.01 over 64 years’ experience of conveyancing practice. Consequently we believe we have writ- ten a book which truly highlights a practical approach to the process of conveyancing. But it is not a book which justhttp://www.pbookshop.com looks backwards. We believe that the future for conveyancing practitioners lies in greater efficiency and in a deeper understanding of the conveyancing process including thePreview system of land registration. With these aims in mind we have produced a book which we believe addresses these objectives as well as offering an understanding to practitioners and law students of the process as a whole. Property law and practice Conveyancing is not a frozen topic. It is presently a fast-moving and fast-changing area 1.02 of law and practice. Statute, information technology (IT), case law, and market forces all represent current factors pressing change upon conveyancing practitioners. Indeed, the title ‘conveyancing’ itself is turning into ‘property law and practice’. As a result, practitioners have an even greater need for signposts through this maze of changing paths. Therefore, we have adopted the signpost heading method for all the chapters. You, the reader, will find at the start of each chapter a list of contents for that particular chapter and the topics within it. This method has been adopted to help the busy practitioner (or student) find the relevant 2 Introduction area of interest as quickly as possible. We appreciate from our own experience of practice that there is nothing worse than wasting hours fruitlessly searching through un titled sub- chapter sections trying to locate the desired subject. Each paragraph is separately numbered so that you can navigate quickly throughout the text. Key point summaries and checklists 1.03 Within each chapter there are also two further elements designed to assist the busy reader. First, where appropriate, we have included key points, summaries highlighting important elements within a particular topic. These are provided as reminders of important points that should never be overlooked even in the hurly-burly of the busy modern legal office. Secondly, we have included, at the end of most chapters, checklists for the busy practitioner who may be seeking a quick overview of the important elements or the procedures in any particular topic. Our overall aim is to provide a clear, useful, and, in particular, practical approach to conveyancing which will help all those who use the book. In this way we hope to assist in the pursuit of an understanding of how conveyancing can be a stimulating and, at times, even an exciting legal skill. AN INTRODUCTION TO CONVEYANCING 1.04 Conveyancing is the process by which legal title to propertyMaterial is transferred. As a conse- quence, over time, a conveyance has become the description for the document making such a transfer. In many ways conveyancing is like Shakespeare’s character Autolycus in The Winter’s Tale, a ‘snapper-up of unconsidered trifles’. Like this amiable rogue, conveyancing takes from here, there and everywhere, from within the full range of the law. Conveyancing rests and has been built upon the three foundations of land law, contract law, and equity and trusts. Because of this, a confident appreciation of land law is crucial for success in conveyancing. Land law sets out the estates and interests that will form the subject matter of all conveyancing transactions, and without an understanding of these details no prac- titioner will cope. You will also Copyrightedneed to have a prior knowledge and understanding of the details concerning the formation– of contracts, the formalities of written contracts, misrep- resentation, and remedies for breach of contract. When you consider that conveyancing is about the transfer of title, and that these transfers are in the main made by contract, you will readily appreciatehttp://www.pbookshop.com why contract law plays such an important part. Each conveyance on sale will involve preparing a written agreement. Moreover, your land law will tell you that without a writtenPreview contract containing all the terms of the agreement there is no deal (see the Law of Property (Miscellaneous Provisions) Act 1989). The influence of equity 1.05 A detailed understanding of the influence of equity as well as trust law will always be a prerequisite for a successful conveyancer. This important foundation to conveyancing is not so obviously relevant as land law and contract law, but it is nevertheless a per- vasive element in conveyancing. You need to know, for example, all about third-party rights and co-ownership. You will need to understand the differences between tenants in common and joint tenants and their relevance to joint ownership in conveyancing. You will need to be absolutely clear on the law relating to trusts. You will need to remind yourself about the equitable remedies that are available. It is one thing to understand their availability in theory but it is another to apply them to a practical situation (see Chapter 9). Introduction 3 So, the key to understanding the nature of conveyancing is to appreciate how it calls upon 1.06 various disparate areas of the law. It means that you must abandon a discrete approach to applying the separate elements of the law. Conveyancing requires you to blend your knowledge. Conveyancing does not relate just to the transfer of ownership of residential properties. It covers the transfer of title to both houses as well as flats, new and second- hand properties, and commercial property of all kinds. (We look at leaseholds, which will include flats, in Chapter 10, new properties in Chapter 11, and the basics of commercial property in Chapter 12.) Registered and unregistered conveyancing History has dictated two parallel conveyancing systems. The system of unregistered con- 1.07 veyancing has for centuries been the method by which the transfer of title
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