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

• How the market has evolved

• NLIS

• Search agents

• Technology

• Databases

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

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

Arranging Insurance

What are your options?

•Tell client to sort out insurance itself

•Establish a compliant process

•Become a tied agent

•Use a broker