The first issue is on pre-sale due diligence, searches and sale agreement. A cash buyer may either carry out searches and enquiries or take out indemnity insurance. Before a buyer purchases land, it is pertinent for the buyer to conduct searches on the property to ensure the buyer has full information regarding the property he/she intends to buy.Searches are also important for buyers because they create awareness on the buyer about the potential future risks.Searches may be carried out by the buyer or the buyer’s solicitor. Examples of searches that may be carried out include index map searches to establish clarity of boundaries of the property, environmental land searches to establish the susceptibility of the land to floods and other adverse weather conditions, Common Search results to establish any land contamination, and Law Society’s ‘Green Card’ to establish any contamination on the land or disputes that are affecting the land.
After conducting searches, the purchaser may carry out enquiries into the land he/she intends to purchase. If the buyer is purchasing property for commercial purposes, it is a requirement that he/ she carries out commercial land enquiries. Those enquiries include: physical condition of the property, contents, planning, and building regulations, statutory agreements and infrastructure, to check fixtures and fittings contracted to be sold are in the subject property before the exchange, to check easements and rights affecting or benefiting the property, access to neighboring land, occupiers and employees, access to and from the property and many more. Enquiries are important as they layout more information concerning the land.
Searches on the property are essential because they reveal defects in the property. Usually, there is no warranty given about the state of the property. Therefore, buyers should obtain their own survey report entering into a contract to buy the property. More often, land sale agreements will require buyers to buy property in the physical state that it is in. a diligent buyer should conduct such searches to evade future conflicts.
It is also important for the buyer to investigate the title to acquire a good marketable title. Investigation of the title is also significant for the following reasons: caveat emptor (buyer beware). This principle requires an investigation of title for anyone wanting to acquire an interest in the property. Secondly, the title’s investigation is necessary because a bonafide buyer for value without notice acquires a good title to the property. Thirdly, the title’s investigation is due diligence on the part of the buyer and his solicitor. A buyer of the property is therefore required to investigate the title to prevent future litigation.
Mr. Samuel Smytherington- Jones bought land on cash, he should have taken indemnity insurance to cover his future losses, or he should have conducted searches and enquiries on the land to discover the land boundaries, environment and maintenance matters, occupiers and employees on the land, planning and building regulations, access to and from the property and infrastructure. In particular, he should have looked into the other property on the land like the cottage. When the builder examined the cottage where Mrs. Binns resides, he discovered that a large sum of money is required to reclaim the South field cottage. If Mr. Samuel had conducted searches and enquiries into the property, he would have discovered such defects in the property that would lead to a potential decrease in the purchase price to set aside more money to be used in reclaiming the property. Because Mr. Samuel did not conduct searches and enquiries, he needs to take indemnity insurance.
Before selling property there is a requirement that the contract of sale is in writing.Section 40(1) of the Law of Property Act necessitates that in order for any legal action to be pursued for any contract of sale of land, such contract should be in writing and executed by both parties of the contract. Further, Section 2 of the Law of Property (Miscellaneous Provisions) Act which regulates sale of land contracts dictates that contract of sale of land must be in writing; oral contracts are invalid. In instances where one has an oral contract with another, they should ensure the terms and conditions of the agreement are written. The contract must also be executed by both parties as one document or as same documents each signed by both parties. Amendments will not invalidate an already existing contract so long as they are in writing and executed by both parties.
A sale contract must include the following notations: the buyer agrees to buy, and the seller agrees to sell.However, an oral contract for the purchase and sale of land can be enforceable.An oral contract can only be enforceable through constructive notice and proprietary estoppel withstanding. An oral contract can enforceable if it has all the essential elements like price, deposit, and land.Matchmove Ltd v Dowding &Anor involved a dispute between two former friends. Their dispute was on the meadow that the plaintiff had paid for, but the defendant refused to furnish payment. Their agreement was oral. In determining whether an oral contract is enforceable, the judge held that an oral agreement could be enforceable in instances of proprietary estoppel.
Relying on the foregoing principles of law, Mr. Samuel needs to have a contract in writing detailing the property purchased, description, the purchase price, and signatures of both the seller and the buyer. Section 2 of the Law of Property (Miscellaneous Provisions) states that a contract for sale should be in writing, signed by both parties, and have the wording: buyer agrees to buy and the seller agrees to sell. An oral contract of sale is considered invalid. A written contract will also come in handy in the future since Mr. Samuel is planning to sell the land to cater for refurbishment costs. According to section 40(1) of the Law of Property Act, a person can only institute legal proceedings if they have a contract of sale executed by the seller and buyer. Mr. Samuel should have the contract in writing in case of future legal actions concerning the property.
The second issue is the legal implication of a license in property law and how much license can be terminated. A licence makes it acceptable in law for a property to be occupied or used by another person who is not the lawful owner. A licence may be implied or express. Express licenses are those that a person has expressly allowed another individual to stay on their property. Express licences are periodical, i.e., a person is allowed to stay for a specific period. Re-entry beyond the allowed time constitutes trespass. In comparison to leases, a licence gives an individual minimal rights. Licensees have no interest in the land they occupy. In Camelot Property Management Limited v Roynon the plaintiff was a legal owner of the property, and he entered into a licence contract with Roynon. The property in question was a retirement home. The plaintiff allowed Roynon to have keys to two property rooms, which other people did not have. The contract did not contain provisions for Camelot like a right of entry. Camelot notified Roynon to vacate, but he refused. He brought legal actions against Camelot as he wanted to repossess the property. The Court was faced with an important issue: whether the contract was a licence or a lease.
Based on the facts of the case like Roynon have keys to two rooms and Camelot not exercising the right to entry, the Court held that Roynon was a tenant and not a licensee. A licensee has limited property rights. A licence must clearly state the parties’ intention and must be strict to ensure the licensee is not granted exclusive possession to the property. A licence creates legal interest in property where there is constructive notice.
Licences may be revoked by giving sufficient notice of revocation to the licensee and allowing them considerable time to leave the property. A licensee who stays on land after the licence period can be sued for trespass.
As stated by the Seller of the Property, Mrs. Binns is a licensee. She lives in the cottage and does not pay rent. A lessee pays rent to the property, so he/she has legal interests in property. However, in this case, Mrs. Binns is a licensee and does not pay rent. She has minimal rights concerning the property. As held in Winter Garden Theatre v Millenium Productions, the licensor can revoke a licence so long he or she gives the licensee a reasonable amount of time. In this scenario, Mr. Samuel can revoke the licence by serving Mrs. Binns a sufficient notice allowing her reasonable time to vacate from the property. If Mrs. Binns is given sufficient notice to vacate the property, then Mr. Samuel can have an opportunity to refurbish it.
Lastly, the Housekeeper and her husband are living on the property under a licence. They have minimal rights in the right, and the property owner, Mr. Samuel, has the exclusive ownership. For a licence to be considered a lease, the licensee has rights over the property. In this scenario, Mr. Samuel claims that they asked the Housekeeper and her husband to make the spare bedroom available as part of their licence. Since this a licence, Mr. Samuel can revoke it by serving sufficient notice to the Housekeeper and her husband and allowing them to move out. If the Housekeeper and the husband continue staying on the property, Mr. Samuel can bring legal action of trespass against them. After the Housekeeper and her husband leave, Mr. Samuel can turn the hall to a wedding venue and the lodge to a honeymoon suite and a place for the bridal party to get ready.
Agriculture and rural land standard enquiries, Practical Law Agriculture and Rural Land https://uk.practicallaw.thomsonreuters.com/5-616-7576?transitionType=Default&contextData=(sc.Default)&firstPage=true
Bowman & Tyler, “The Elements of Conveyancing” (Lond) 8th Ed, Sweet & Maxwell
Camelot Property Management Limited v Roynon (2017)
Peta L. Dollar, Searches and inquiries (2010) http://www.practicalconveyancing.co.uk/dmdocuments/searches.pdf retrieved on 11th October 2020
Law of Property Act 1925
Law of Property (Miscellaneous Provisions) Act 1989, sec 2
Matchmove Ltd v (1) Mark Dowding (2) and Jane Church EWCA Civ. 1233(2016)
Nicola Laver, Licences in Property Law, https://www.inbrief.co.uk/property-law/proprietary-licences/ retrieved on 11th October 2020
Oliver v Hanton 1899 2 Ch D
Robert Abbey &Mark Richards, “ A Practical Approach to Convenyancing”(Lon) Blackstone Press 2000
Watts v Stewart (2016) EWCA Civ 1247, (2016)
Winter Garden Theatre (London) v Millenium Productions(1948) AC 173
 Peta L. Dollar, Searches and inquiries (2010) http://www.practicalconveyancing.co.uk/dmdocuments/searches.pdfretrieved on 11th October 2020
 Supra n 1
 Agriculture and rural land standard enquiries, Practical Law Agriculture and Rural Land https://uk.practicallaw.thomsonreuters.com/5-616-7576?transitionType=Default&contextData=(sc.Default)&firstPage=true
 Oliver v Hanton 1899 2Ch D
 Law of Property Act 1925, sec 199
 Law of Property Act 1925, sec 40(1)
 Law of Property (Miscellaneous Provisions) Act 1989, sec 2
 Matchmove Ltd v(1) Mark Dowding (2) and Jane Church EWCA Civ 1233(2016)
 Supra n 8
 Nicola Laver, Licences in Property Law, https://www.inbrief.co.uk/property-law/proprietary-licences/ retrieved on 11th October 2020
 Camelot Property Management Limited v Roynon (2017)
 Watts v Stewart (2016) EWCA Civ. 1247 (2016)
 Winter Garden Theatre (London) v Millenium Productions (1948) AC 173
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