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Pre-completion searches鈥攃hecklist This Checklist sets out the pre-completion searches that a buyer, tenant or mortgagee should make, when the searches are necessary, timing requirements and the priority periods given by each search. It is not an exhaustive list and additional searches may be required depending on the nature of the transaction. For details of how to make each search and how to deal with any adverse entries revealed, see Practice Note: Pre-completion searches. Search When is it necessary? Timing Priority period Official search with priority Use form OS1 for an official search with priority of the whole of a registered title and form OS2 for an official search with priority of part of a registered title On a registrable disposition of a registered estate (or estate pending first registration) for valuable consideration At least five working days before completion 30 working days provided:鈥 the search is made correctly鈥 the disposition is completed and the application to register the disposition is entered on the day list before the...
Enforcing security鈥攃hecklist Initial options to consider Lenders will often see formal enforcement action as a last resort. As such, a lender will often first consider the following: Refinancing This involves the borrower paying off the existing loan with a new loan that has more favourable repayment terms and/or less onerous interest rates for the borrower. The new loan may be from the existing lender or from an alternative lender. Often this will turn on whether the borrower's current lender wishes to continue the banking relationship with the troubled borrower. Restructuring This process involves making significant changes to the structure of the borrower company or its operations to make the business run more effectively and profitably so that repayment of the debt becomes more likely. For restructuring to be an option, it requires: 鈥 a viable underlying business, although it may currently be carrying too much debt 鈥 early recognition of the distress 鈥 liquidity while restructuring is investigated 鈥 support from the main stakeholders For more information, see...
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Amending security documents Reasons for amending security documents and key risks Reasons for amending a security document There are situations where parties may consider amending security documents. Common examples include: 鈥 the parties want to make changes to the obligations being secured 鈥 the chargee wants to assign or novate its security following a transfer of the debt 鈥 the parties want to charge additional assets or change the nature of an existing charge (eg from a floating charge to a legal mortgage), and/or 鈥 the parties want to correct a mistake or document an amendment to what has been agreed Parties may consider that amending a security document may be cheaper and easier than putting a new security document in place. Key risks of amending security documents New security?: Depending on the type of amendment, there is a risk that a liquidator or administrator could argue that new security has been created risking the security being set aside (see Practice Note: Introductory guide to antecedent transaction claims鈥攃onsiderations...
Severance of a joint tenancy Severance is the process by which a joint tenancy is converted into a tenancy in common. It is a matter of evidence whether severance has occurred. There are limitations: 鈥 there can be no severance by will 鈥 only a beneficial/equitable interest can be severed鈥攁 legal estate must be held by way of joint tenancy (see section 36(2) of the Law of Property Act 1925 (LPA 1925) and Practice Note: Establishing a beneficial interest (joint ownership)). The consent of the other joint tenants is not required for an individual co-owner to sever a joint tenancy. Any joint tenant can sever the tenancy at any time. Severance by statutory notice It is usual to consider whether a joint tenancy should be severed when advising on relationship breakdown. Severance may be effected by statutory written notice under LPA 1925, s 36(2). This is the method most commonly used. The notice need not be in any particular form; it need not even use the term...
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Supplemental legal mortgage for real property: single company mortgagor鈥攂ilateral鈥攕pecific monies This Deed is made on [date] Parties 1 [insert name of Chargor], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the Chargor); and 2 [insert name of Lender] of [insert address] (the Lender). Recitals: (A) This Deed is supplemental to the Debenture (as defined below) pursuant to which the Chargor mortgaged and charged, among other things, all its then existing freehold and leasehold properties in favour of the Lender for the purpose of providing security to the Lender in respect of the Secured Obligations (as defined below). (B) The Chargor is entering into this Deed pursuant to clause [insert relevant clause number] (Further assurance) of the Debenture to grant a legal mortgage over the Mortgaged Property (as defined below) for the purpose of providing additional security to the Lender in respect of the Secured Obligations (as defined below). IT IS AGREED as follows: 1...
The Lender(s) should comprise the name(s) of all of the lending individual(s), listed separately as (1), (2) etc. The Borrowers should comprise the name(s) of all of the borrowing individual(s), listed separately as (1), (2), etc. A legal estate or interest in land may only be created or conveyed by a deed. It must be clear from the face of the document that it is intended to be a deed. For guidance on execution of a deed by an individual see, Practice Note: Ireland鈥擡xecuting simple contracts and deeds. For an execution clause (testimonium) and signature blocks, suitable for use where execution as a deed by an individual is required, see Precedent: Ireland鈥擡xecution clause鈥攊ndividual鈥攄eed. Drafting assumptions This Precedent is drafted on the basis that the Lender and the Borrower are individuals, and the Consumer Credit Act 1995 (Ireland) is therefore not applicable. This Precedent is not suitable for use in a commercial setting for either a business to consumer (B2C) or business to business (B2B) loan. Ireland鈥擫oan agreement and...
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Do mortgage deeds need to be executed by the mortgagee or just the mortgagor? If separate counterparts are executed, do both counterparts need to be registered? In order to be effective to grant security to the mortgagee, a mortgage does not need to be executed by the mortgagee as well as the mortgagor (see: Target Holdings Ltd v Priestley, Helden v Strathmore Ltd and Rollerteam v Riley). A mortgage is a disposition of an interest in land and therefore only needs to be executed, as a deed, by the mortgagor, per sections 52 and 53 Law of Property Act 1925 and s 1 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989); it is not an agreement to dispose of an interest in land (which would be subject to LP(MP)A 1989, s 2), which requires such an agreement to be in writing and signed by or on behalf of both parties, whether in one document or identical counterparts each executed by one party....
Is it possible to take security on the hull/fittings of a house boat? Nature of the houseboat The type of security that may be taken will depend on the nature of the particular houseboat (ie whether it is considered a ship or a chattel). Under section 313(1) of the Merchant Shipping Act 1995, the definition of a ship 鈥榠ncludes every description of vessel used in navigation鈥. It is not clear from the information received whether this applies to the particular houseboat. In considering the position, you may also find the cases of Environment Agency v Gibbs and Chelsea Yacht and Boat Co Ltd v Pope helpful, as these look at the definition of a vessel and the status of houseboats. Security if houseboat considered a ship/vessel The UK Ship Register is maintained by the Maritime and Coastguard Agency (MCA) and is divided into four parts: 鈥 Part I鈥攎erchant vessels and pleasure vessels or yachts over 24 metres in length 鈥 Part II鈥攆ishing vessels (either by...
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This week's edition of Property weekly highlights includes: a new Law Society practice note on聽climate聽risk and property transactions, an update from the Law Society on the Committee Stage of the Renters鈥 Rights Bill and on form TA6 following NTSELAT鈥檚 withdrawal of its material information guidance, a consultation on draft regulations to alter valuation framework for telecoms leases, a change to permitted development rights that support the installation and operation of off-street electric vehicle charging points and cases on boundary determination, rescission of a declaration of trust, interpretation of the sequential test in national and development plan policy for retail development and the setting aside of a possession order in favour of administrators where the property was subject to a mortgage with receivers already appointed.
This week's edition of Property weekly highlights includes: a Supreme Court decision on the qualifying period for adverse possession, cases on adverse possession and death, consideration for interim access under the Telecoms Code, overriding interests, discharge of obsolete restrictive covenants and service charges for substandard work, plus an update on Law Commission recommendations.
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