Propertymark / NAEA Qualification (Level 3 Estate Agency) Property Law, Title and Conveyancing Syllabus

Distinguish a 'notice', a 'restriction' and (historically) a 'caution' on the register of title.

Notice: protects the priority of a third-party interest (e.g. a restrictive covenant, lease or estate contract) so it binds buyers. Restriction: prevents or controls registration of a disposition unless a stated condition is met (e.g. trustee consent, or 'two trustees' for overreaching). Caution against first registration: alerts a non-owner so they can object before the land is first registered (the old 'caution against dealings' was abolished by the LRA 2002).

What is the purpose of a Form A restriction on a co-owned property's register?

A Form A restriction indicates that the beneficial ownership is held as a tenancy in common (not a joint tenancy). It ensures that capital money is paid to at least two trustees (or a trust corporation) so that beneficial interests are overreached, protecting a buyer and the beneficiaries.

Define an easement and state the four characteristics from Re Ellenborough Park (1956).

An easement is a right enjoyed by one parcel of land (the dominant tenement) over another (the servient tenement), e.g. a right of way. The four characteristics: (1) there must be a dominant and a servient tenement; (2) the easement must accommodate (benefit) the dominant tenement; (3) the tenements must be owned/occupied by different persons; and (4) the right must be capable of forming the subject matter of a grant.

In what three main ways can an easement be created?

(1) Expressly - by deed or in a transfer; (2) Impliedly - by necessity, common intention, the rule in Wheeldon v Burrows, or s.62 LPA 1925; and (3) by Prescription - long use (e.g. 20 years) under the Prescription Act 1832, lost modern grant, or common law.

What duration of continuous use is generally required to acquire an easement by prescription?

Generally 20 years of continuous use 'as of right' - that is, without force, without secrecy and without permission (nec vi, nec clam, nec precario), under the Prescription Act 1832.

Distinguish a restrictive covenant from a positive covenant, and explain which runs with the land to bind successors.

A restrictive (negative) covenant restricts what an owner may do with land (e.g. 'not to build above one storey'). A positive covenant requires expenditure or action (e.g. 'to maintain a fence'). The burden of a RESTRICTIVE covenant can run with the land in equity (Tulk v Moxhay) and bind successors; the burden of a POSITIVE covenant does NOT run with freehold land at common law.

What conditions must be met for the burden of a restrictive covenant to run with the land in equity (Tulk v Moxhay)?

(1) The covenant must be negative/restrictive in substance; (2) it must accommodate (benefit) the covenantee's retained dominant land; (3) it was intended to run with the land; and (4) the successor must have notice of it (in registered land, protected by a notice on the Charges Register).

What is a mortgage of registered land, and how is it protected?

A mortgage (a 'charge by way of legal mortgage') is a security interest taken over property to secure a loan; the borrower (mortgagor) retains ownership while the lender (mortgagee) gains rights including the power of sale on default. It is a registered charge entered on the Charges Register of the title; the lender is the registered chargee.

List the principal remedies available to a mortgagee (lender) on the borrower's default.

(1) Power of sale; (2) taking possession of the property; (3) appointing a receiver; (4) foreclosure (rare); and (5) suing on the borrower's personal covenant to repay. The power of sale arises and becomes exercisable under the Law of Property Act 1925.

What is adverse possession and what are the limitation periods for registered and unregistered land?

Adverse possession ('squatter's rights') is acquiring title by occupying land without the owner's permission. Unregistered land: 12 years of adverse possession extinguishes the owner's title (Limitation Act 1980). Registered land (LRA 2002): the squatter may apply after 10 years, but the registered owner is notified and can object, making it much harder to claim.

What three elements must a squatter prove to establish adverse possession?

(1) Factual possession of the land (exclusive physical control); (2) an intention to possess (animus possidendi); and (3) that the possession is without the owner's consent and without secrecy or force. The leading authority is JA Pye (Oxford) Ltd v Graham (2002).

What is a wayleave and how does it differ from an easement?

A wayleave is a contractual agreement (often a licence) granting a utility/service provider the right to install and access apparatus such as cables, pipes or pylons across land, usually in return for an annual payment. Unlike an easement it is typically personal and terminable, does not require a dominant tenement, and does not automatically bind successors in the same way.

What is a 'flying freehold' and why is it problematic for buyers and lenders?

A flying freehold is where part of a freehold property overhangs or lies above another's land/property (e.g. a room over a shared passageway, or a flat above another freehold). It is problematic because positive covenants (e.g. to repair/support) do not run with freehold land, so there may be no enforceable obligation to maintain support and access. Many lenders are cautious about lending on such properties.

Outline the key stages of a typical residential conveyancing transaction from instruction to completion.

(1) Instruction and client ID/AML checks; (2) drafting/issuing the contract pack (seller) and pre-contract enquiries and searches (buyer); (3) mortgage offer and survey; (4) exchange of contracts (becomes legally binding, deposit paid); (5) pre-completion searches and requisitions; (6) completion (balance paid, keys released); (7) post-completion: pay SDLT and register the buyer at HM Land Registry.

What legally happens at 'exchange of contracts' versus 'completion'?

Exchange of contracts: both parties become legally bound, the deposit (usually 10%) is paid, the completion date is fixed, and neither party can withdraw without penalty. Completion: the balance of the purchase price is paid, legal title transfers, and the buyer is entitled to possession (keys handed over).

Compare the roles of a solicitor and a licensed conveyancer in a property transaction.

A solicitor is a qualified lawyer (regulated by the SRA) who can handle conveyancing among a wide range of legal work. A licensed conveyancer is a specialist property lawyer regulated by the Council for Licensed Conveyancers (CLC), trained specifically in conveyancing. Both can legally carry out conveyancing; licensed conveyancers focus solely on property.

What is the TA6 form and what does it cover?

The TA6 (Property Information Form), part of the Law Society's TransAction protocol, is completed by the seller. It discloses information about the property including boundaries, disputes/complaints, notices, alterations and planning, guarantees, services, and environmental matters. It helps the buyer make an informed decision.

What is the TA10 form used for?

The TA10 (Fittings and Contents Form) is completed by the seller to specify exactly which fixtures, fittings and contents (e.g. curtains, light fittings, white goods, garden items) are included in, or excluded from, the sale. It prevents disputes about what stays and what is removed.

Define 'gazumping' and 'gazundering' in the context of property sales.

Gazumping: where a seller accepts a higher offer from another buyer after already accepting an offer, before contracts are exchanged, leaving the original buyer rejected. Gazundering: where a buyer lowers their offer at the last minute (shortly before exchange), pressuring the seller to accept less. Both are possible because offers are 'subject to contract' and not binding until exchange.

What does the phrase 'subject to contract' mean and why is it significant?

'Subject to contract' indicates that any agreement reached is provisional and NOT legally binding until formal contracts are exchanged. It allows either party to withdraw without liability (which is why gazumping and gazundering are possible). It should be used on all pre-exchange correspondence to avoid creating a binding agreement.

State three key differences between conveyancing in England/Wales and conveyancing in Scotland.

In Scotland: (1) the 'missives' (offer and acceptance letters) form a binding contract earlier, so there is no gazumping equivalent once concluded; (2) the legal estate is feudal-derived but now largely 'ownership' registered in the Land Register of Scotland; and (3) solicitors often act as estate agents and the process uses 'offers over' pricing. Property law terminology and the system of property registration differ significantly.

How does conveyancing in Northern Ireland differ from England and Wales?

Northern Ireland has its own separate land registration system (Land Registry of Northern Ireland / Registry of Deeds) and its own legislation. While the process is broadly similar to England and Wales (with exchange of contracts), much land remains registered in the Registry of Deeds rather than the Land Registry, and there are distinct local property taxes (rates) and legal procedures.

What is leasehold 'enfranchisement' and how does it differ from a lease 'extension'?

Enfranchisement is the right of leaseholders to buy the freehold of their property (collectively for flats, or individually for houses). A lease extension is the right to add years to an existing lease (e.g. for a flat, an additional 90 years on top of the remaining term) while remaining a leaseholder. Both are statutory rights subject to qualifying conditions.

Under current rules (pre-2024 reform), what lease extension is a qualifying flat leaseholder entitled to, and what ownership period was required?

A qualifying flat leaseholder was entitled to a lease extension of an additional 90 years (added to the unexpired term) at a peppercorn (nil) ground rent, under the Leasehold Reform, Housing and Urban Development Act 1993, provided they had owned the lease for at least 2 years. (For houses under the 1967 Act, a 50-year extension.)

What is the 'Right to Manage' (RTM) and what is its key advantage?

The Right to Manage (Commonhold and Leasehold Reform Act 2002) allows qualifying leaseholders of a block of flats to take over the management of their building from the landlord/freeholder via an RTM company, WITHOUT having to prove fault or pay compensation. They gain control over service charges, maintenance and managing agents.

What is 'collective enfranchisement' and what are the typical qualifying thresholds?

Collective enfranchisement is the right of leaseholders in a block of flats to club together and buy the freehold of their building. Typical qualifying conditions: at least two-thirds of flats let on long leases, at least 50% of the qualifying leaseholders must participate, and no more than 25% of the floor area is in non-residential/commercial use.

What key protections does the Building Safety Act 2022 give to leaseholders regarding remediation costs?

The Building Safety Act 2022 protects 'qualifying leaseholders' from paying for the remediation of unsafe cladding and certain building-safety defects in buildings over 11m (or 5 storeys). Costs are shifted to developers and building owners, with statutory caps and protections, and the Act introduced new duties (e.g. the 'Accountable Person' and a building safety regime for higher-risk buildings).

What is a 'higher-risk building' under the Building Safety Act 2022 and who oversees its safety regime?

A higher-risk building is generally one at least 18 metres tall OR with at least 7 storeys, containing at least 2 residential units. The Building Safety Regulator (part of the HSE) oversees the new safety regime, and an 'Accountable Person' must manage building safety risks and register the building.

What major changes did the Leasehold and Freehold Reform Act 2024 aim to introduce for leaseholders?

Key reforms include: making it easier and cheaper to extend leases and buy freeholds (standard 990-year extensions at peppercorn ground rent); removing the 2-year ownership requirement before extending/enfranchising; banning the sale of new leasehold houses; increasing the non-residential limit for collective enfranchisement from 25% to 50%; and improving transparency of service charges and banning certain fees.

Under the Leasehold and Freehold Reform Act 2024, what standard lease extension term replaces the previous 90/50-year extensions?

A standard lease extension of 990 years at a peppercorn (zero) ground rent for both flats and houses, replacing the previous 90-year (flats) and 50-year (houses) extensions, and removing the requirement to have owned the property for 2 years before applying.