5 single best answer questions on Property Law and Practice, written to the SRA specification. Pick an answer, then open the explanation: the correct option, why each of the others fails, and the authority behind it. No sign-up.
Freehold transactions from instructions to registration: investigating registered and unregistered title, searches and enquiries, the Law Society Conveyancing Protocol, finance and acting for a lender, exchange, completion and the remedies for delay; leases — their content, grant, assignment, consents, covenants, remedies and termination, and security of tenure for business tenants; planning and building control; and Stamp Duty Land Tax, Land Transaction Tax, VAT and capital gains tax on property.
Questions sit at a point in a transaction and ask what the solicitor does next, what a search or a title reveals, or what a clause in a lease means for the client.
Question 1
Core knowledge areas of freehold real estate law and practiceHarder
A woman owned a freehold farm comprising a farmhouse, a barn and twelve acres of pasture, all in one registered title. She occupied the whole of the farm herself, living in the farmhouse and farming the pasture. Two years ago she sold the converted barn, now a dwelling, to a man. The barn's foul drainage runs beneath the pasture to a septic tank in the corner of the field; two inspection chambers stand clearly visible in the pasture, and the drain was in use serving the barn on the day of the sale. The transfer of the barn was made by deed, contained no express grant of easements, and expressly excluded the operation of s.62 of the Law of Property Act 1925. Nothing about drainage has ever been noted on either registered title. There is also a grass track across the pasture which the woman had sometimes used to reach the barn, although the barn has its own tarmac drive onto the public highway. The woman now intends to block the drain and dig up the pipe.
Which of the following best describes the man's rights in respect of the drainage?
Show the answer and explanationAnswer E+
E
Correct answer
He has a legal easement of drainage, impliedly granted by the transfer because the drain was continuous, apparent and in use at the sale.
The drainage passes by implied grant under the rule in Wheeldon v Burrows on the sale of part and, being implied into the transfer of the legal estate, is a legal easement.
Under the rule in Wheeldon v Burrows, on a sale of part, quasi-easements that are continuous and apparent, in use at the time of the sale, and necessary for the reasonable enjoyment of the land sold pass by implied grant into the transfer deed, creating a legal easement. The drain served the barn, was in use at the sale, was continuous and apparent from the visible inspection chambers, and foul drainage is necessary for the reasonable enjoyment of the dwelling. Because it is implied into a deed transferring a legal estate, it takes effect as a legal easement.
The visible inspection chambers made the drain continuous and apparent, it was in use at the date of sale and drainage is necessary for the reasonable enjoyment of a dwelling. As the grant is implied into a deed transferring a legal estate, it creates a legal easement.
Wheeldon v Burrows — Implied grant of continuous and apparent quasi-easements on a sale of part.
Rule card
Sale of part: Wheeldon v Burrows implies grants of quasi-easements that are continuous and apparent, in use at the date of the transfer, and necessary for the reasonable enjoyment of the land sold.
Why the other options fail
A
Right outcome, wrong reasonClosest alternative
He has a legal easement of drainage, because s.62 of the Law of Property Act 1925 passed the right enjoyed with the barn.
Although s.62 of the Law of Property Act 1925 can imply easements for continuous and apparent rights such as drains into a conveyance, its operation was expressly excluded by the transfer deed.
Ruled out by: A claim under s.62 of the Law of Property Act 1925 fails because the transfer deed expressly excluded the operation of that section.
Law of Property Act 1925, s.62 — A conveyance of land having buildings thereon operates to convey drains enjoyed with the land, unless excluded.
B
Surface reading
He has no easement of drainage, because an underground pipe cannot satisfy the requirement of being continuous and apparent.
Under Wheeldon v Burrows, quasi-easements must be continuous and apparent; although the pipe itself is buried beneath the pasture, the presence of visible inspection chambers satisfies the requirement of being apparent upon an inspection of the land.
Wheeldon v Burrows — Quasi-easements pass on a sale of part where they are continuous and apparent, necessary for the reasonable enjoyment of the property, and in use at the date of the grant.
C
Adjacent rule
He has an equitable easement only, because the right of drainage has never been noted on the register.
A right impliedly granted by the transfer of the legal estate is itself legal; the absence of an entry on the register does not reduce it to an equitable interest.
Wheeldon v Burrows — The implied grant takes effect as part of the conveyance of the legal estate.
D
Surface reading
He has legal easements of both the drainage and the grass track, since each was being used for the benefit of the barn when it was sold.
The track fails the requirement of necessity for reasonable enjoyment because the barn has its own direct access to the highway.
Wheeldon v Burrows — An implied grant requires the right to be necessary for the reasonable enjoyment of the land sold.
Question 2
Law Society Conveyancing ProtocolMedium
A solicitor acts for the seller of a registered freehold house which is subject to a mortgage with a building society. Shortly before completion the buyer's solicitor asks for confirmation that the mortgage will be discharged. The seller's solicitor emails an undertaking to redeem the mortgage from the sale proceeds and to send the buyer's solicitor evidence of discharge within five working days of completion. Completion takes place. The building society then tells the solicitor that, because of a backlog, it will not process the redemption for three weeks. The seller, who has emigrated, instructs the solicitor to send the whole balance of the proceeds to her new overseas account and says that the buyer's solicitor can wait.
Which of the following best describes the solicitor's position in relation to the undertaking?
Show the answer and explanationAnswer A+
A
Correct answer
The solicitor must perform the undertaking within the agreed timescale; failure to do so is professional misconduct.
An undertaking to discharge the seller's mortgage must be performed within the agreed timescale, whatever the lender or the client does.
The solicitor gave an undertaking on which the buyer's solicitor reasonably relied. It must be performed, and within the five working days agreed; failure is professional misconduct, which is why solicitors should undertake only what lies within their control.
Undertakings must be performed, and performed within any agreed timescale; a solicitor should therefore only undertake what is within their control.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 1.3 — Solicitors must perform all undertakings and do so within an agreed timescale; failure to honour an undertaking is professional misconduct.
Rule card
Undertaking: binding whatever the form; perform within the agreed timescale; not discharged by third-party delay, client instruction or a unilateral substitute.
Why the other options fail
B
Right outcome, wrong reason
The solicitor must follow the seller's instructions to remit the proceeds, since the client's instructions override an undertaking given to another solicitor.
An undertaking binds the solicitor personally; the solicitor must be able to justify their actions as compliant and cannot obey instructions that would breach it.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 7.2 — A solicitor must be able to justify decisions and actions as compliant with regulatory obligations.
C
Surface reading
The undertaking is unenforceable because it was given by email and not in a signed letter.
An undertaking is any statement on which the recipient reasonably places reliance; the medium is irrelevant.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 1.3 — All undertakings given must be performed; there is no requirement of a particular form.
D
Adjacent ruleClosest alternative
The solicitor is released from the undertaking because its performance now depends entirely on the building society's own timetable.
Dependence on a third party does not release the solicitor; that is precisely why a solicitor should only undertake what is within their control.
Ruled out by: The building society's three-week backlog is a third-party delay, which does not release the solicitor from an undertaking already given.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 1.3 — Undertakings must be performed within the agreed timescale, so a solicitor should only undertake what is within their control.
E
Adjacent rule
The solicitor should give the buyer's solicitor a fresh undertaking extending the timescale to three weeks, which discharges the original undertaking.
A solicitor cannot unilaterally replace an undertaking already relied upon; only the recipient's agreement could vary it, and the original obligation remains meanwhile.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 1.3 — Undertakings given must be performed within the agreed timescale.
Question 3
Statutory definition of “Development”Harder
A woman owns the freehold of a retail unit with an open yard at the rear. For many years the yard has been used by her staff for parking cars while working in the shop. She has agreed to grant a ten-year lease of the yard to the builders' merchant next door, which will use it for the open storage of scaffolding and sand. No buildings will be erected and no surfacing or other works will be carried out. Her staff will park in the street instead, and the yard will no longer serve the shop. The title contains no restrictive covenants.
Which of the following best describes whether planning permission is required for the arrangement?
Show the answer and explanationAnswer E+
E
Correct answer
Yes, because using the yard for open storage is a material change in the use of the land; the grant of the lease is not itself development.
No works are involved, but the yard's use changes materially, from parking ancillary to the shop to open storage for a separate business; the lease itself is irrelevant to s 55.
Section 55 catches a material change in the use of buildings or other land, so the absence of any works does not matter and open land is within the definition. The yard ceases to serve the shop and is used for the open storage of materials by a different business, which is a material change of use and therefore development requiring permission under s 57(1). The grant of the lease is a dealing with an interest in land and is not development.
The yard passes from staff car parking ancillary to the shop to open storage for a separate business, and will no longer serve the shop: that is a material change in the use of land under s 55, requiring permission under s 57(1).
Town and Country Planning Act 1990, s 55 — Development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
Town and Country Planning Act 1990, s 57(1) — Planning permission is required for carrying out any development of land.
Rule card
Material change of use of 'any buildings or other land' is development (TCPA 1990, s 55), whether or not any works are carried out. Dealings with legal estates are not development.
Why the other options fail
A
Right outcome, wrong reason
Yes, because the grant of the lease creates a separate legal estate in the yard, which is development in itself.
Right outcome, wrong basis: dealing with interests in land is not within s 55. What makes this development is the change in the actual use of the yard.
Town and Country Planning Act 1990, s 55 — Development consists of operations or a material change of use, not of dealings with legal estates or interests.
B
Adjacent ruleClosest alternative
No, because the yard has always been used in connection with the retail unit, so its use by an adjoining owner for storage cannot be a material change.
A long-standing use establishes the existing lawful use, but it does not prevent a later change from being material.
Ruled out by: The scenario states that the staff will park in the street and the yard will no longer serve the shop, so the storage use by the adjoining merchant is not a continuation of the yard's ancillary use.
Town and Country Planning Act 1990, s 55 — It is the making of a material change in the use of land, judged against its existing use, that constitutes development.
C
Surface reading
No, because development requires building, engineering, mining or other operations, and no works will be carried out at the yard.
Operations are only the first limb of s 55; the making of a material change of use is development even where no works at all are undertaken.
Town and Country Planning Act 1990, s 55 — Development includes the making of any material change in the use of any buildings or other land as well as operations.
D
Surface reading
No, because the change of use limb is concerned with buildings, and the yard is open land with no building on it.
Section 55 refers to a material change in the use of any buildings or other land, so open land is within the definition.
Town and Country Planning Act 1990, s 55 — Development includes the making of any material change in the use of any buildings or other land.
Question 4
Matters that do not require express planning permissionMedium
A solicitor acts for the buyer of a high street shop. The buyer wants to use part of the premises as a children's day nursery and wants certainty about the planning position before exchange. The buyer intends to start the new use immediately on completion. The local search result has not yet arrived. A planning officer has telephoned asking what the buyer intends.
What is the most appropriate step for the solicitor to advise the buyer to take?
Show the answer and explanationAnswer E+
E
Correct answer
Apply to the local planning authority, before the use begins, for a certificate of lawfulness of proposed use or development.
Where it is unclear whether a proposed change of use is development, or whether it is already permitted, the buyer can resolve the doubt in advance by applying for a certificate of lawfulness of proposed use or development.
Section 192 allows an application before the change is begun; the authority must issue the certificate if satisfied the proposal is not development or is permitted development, and must otherwise refuse, which gives the buyer the certainty it wants before exchange.
Where it is doubtful whether a proposed change amounts to development or falls within the GPDO, the statutory route is an application for a certificate made before the change is commenced.
Town and Country Planning Act 1990, s 192 — A certificate of lawfulness of proposed use or development may be applied for before the works or change are commenced; the authority must issue it if satisfied the proposal would not constitute development or would be permitted development.
Rule card
Doubt about whether express permission is needed: apply under s 192 TCPA 1990 for a certificate of lawfulness before commencing. Always check the current GPDO and the local search for an Article 4 direction.
Why the other options fail
A
Surface reading
Ask the planning officer to confirm in writing that express planning permission is not required.
Informal advice or written confirmation from a planning officer does not bind the local planning authority and cannot prevent future enforcement action; only a formal certificate of lawfulness or express planning permission provides legal certainty.
Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 — Informal assurances given by planning officers do not bind the planning authority and do not create an estoppel against planning enforcement.
B
Adjacent rule
Begin the use on completion and apply for a certificate of lawfulness afterwards.
An application for a certificate of lawfulness of proposed use or development is made before the proposed change is commenced; beginning first exposes the buyer to enforcement action.
Town and Country Planning Act 1990, s 192 — The application is made before the works or change of use are commenced, specifying the proposed works or change.
C
Surface readingClosest alternative
Rely on the GPDO, which automatically permits the change without any application.
Before relying on the GPDO the solicitor must check the current version and confirm, through the local search, that no Article 4 direction negates the concession; here the search result has not arrived.
Ruled out by: The local search result has not yet arrived, so it is not known whether an Article 4 direction has removed the GPDO concession.
General Permitted Development Order (GPDO) — The GPDO grants planning permission automatically for specified development, but its effect can be excluded by an Article 4 direction.
D
Adjacent rule
Apply for express planning permission, as that is the only way to obtain certainty.
An application is unnecessary where the change may not be development, or may be permitted development; the statutory route to certainty is an application for a certificate.
Town and Country Planning Act 1990, s 192 — A person may apply to the local planning authority before works or a change of use are begun for a certificate that the proposal would be lawful.
Question 5
Enforcement: time limits and the range of local planning authority’s enforcement powersMedium
A local planning authority in England has received complaints from neighbours, who have written three times, about a car repair business operating from a yard. The yard has the benefit of a 2015 planning permission for open storage, granted subject to conditions about hours of working and the siting of vehicles. The authority's officer needs to know what activities are being carried on at the yard, when the repair business started, and whether the conditions attached to the 2015 permission are being complied with, before deciding whether it is expedient to take enforcement action and, if so, on what basis. The owner has ignored two letters from the authority, refuses the officer entry and will not say when the repair business began, although nothing suggests that he has misled the authority about the use. The officer's report records no immediate harm requiring urgent intervention, and notes that the repairs may have been carried on for several years.
What is the appropriate next step for the authority?
Show the answer and explanationAnswer C+
C
Correct answer
Serve a planning contravention notice requiring the owner to provide information about the activities on the land.
Where the authority lacks information, the investigative power is the planning contravention notice.
The officer needs to know what activities are carried on, when they began and whether the 2015 conditions are observed. A planning contravention notice compels exactly that information, and the owner has refused entry.
A planning contravention notice requires the recipient to give information about operations, uses or activities on the land and about matters relating to conditions attached to a permission, which is exactly what the authority lacks.
Town and Country Planning Act 1990, Part VII — A planning contravention notice requires the recipient to provide information about operations, use or activities on the land and any matter relating to conditions attached to a planning permission.
Rule card
Investigation: right of entry or planning contravention notice. Then enforcement notice (with stop notice), breach of condition notice for condition breaches, temporary stop notice for urgency, injunction in extreme cases.
Why the other options fail
A
Surface reading
Issue an enforcement notice now specifying the breach and the steps required, leaving the owner to appeal if the use is lawful.
An enforcement notice must specify the alleged breach and the steps to remedy it, and be expedient; the authority cannot do that until it knows what is happening and since when.
Town and Country Planning Act 1990, Part VII — An enforcement notice may be issued where it appears there has been a breach and it is expedient to do so, and must specify the alleged breach and the steps to be taken.
B
Adjacent ruleClosest alternative
Serve a temporary stop notice to halt the repairs while further enquiries are made.
A temporary stop notice buys 28 days where activity must be halted at once; it yields no information and the report records no urgency.
Ruled out by: The officer's report records no immediate harm requiring urgent intervention, and a temporary stop notice would produce none of the information the authority needs.
Town and Country Planning Act 1990, Part VII — A temporary stop notice is effective for 28 days only and is used to halt a breach while matters are investigated.
D
Adjacent rule
Serve a breach of condition notice requiring compliance with the conditions attached to the 2015 permission.
A breach of condition notice requires an existing condition to have been breached; the authority does not yet know whether the conditions are being broken and needs to investigate first.
Town and Country Planning Act 1990, Part VII — A breach of condition notice may be served where planning permission for development has been granted subject to conditions and any of the conditions has not been complied with.
E
Civil-law intuition
Apply to the court for an injunction restraining the use.
An injunction is discretionary and reserved for extreme cases where it is expedient and necessary; that cannot be shown before the facts are known.
Town and Country Planning Act 1990, Part VII — An injunction to restrain an actual or apprehended breach of planning control is a discretionary remedy requiring the authority to show it is expedient and necessary.
Where candidates lose marks in Property Law and Practice
A business tenant protected by the Landlord and Tenant Act 1954 does not lose the lease when the term ends: it continues until ended under the Act, unless the parties contracted out with the warning notice and declaration before the tenant was bound.
Under the Standard Conditions, a notice to complete makes time of the essence and requires completion within ten working days of the notice.
Whether planning permission is needed starts with whether the proposal is development at all, and then whether it is permitted development or a change within the same use class.