| “no disposition by a sole proprietor of the registered estate (except a trust corporation) under..” | Entry__ of the Proprietorship Registry refers to a Tenancy In Common (“TIC”) | | REMEMBER that 1. co-owners can only hold the legal estate as joint tenants as opposed to the equitable interest which can be held as joint tenants or tenants-in-common; and 2. That all living legal owners must be a party to any sale (e.g. if 3 living legal owners, 2 can't sell the land) thus, all registered owners must consent to sale | Raise requisitions with the seller as to the other where the other party is. If TIC is alive, they must consent. If TIC is dead, obtain a death certificate & then appoint a 2nd trustee to overreach. But if 3 own it: e.g. If A, B and C own the property as a TC then, If A has died, the legal title will now vest in B and C (by operation of the rule of survivorship) as the legal estate can only be held under a JT. It is only the equitable interest that will have been held under a TC which means that A's equitable interest will have passed to his estate. Accordingly, C and B hold the legal estate on trust for themselves and A's estate. The consequence of this is that in order to sell the property free of the trust of land, the trust must be overreached. This occurs when the purchase money is paid to all the legal owners being at least two in number. |
| “this deed contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity …” | Entry__ of the proprietorship registry refers to an Indemnity Covenant | Our seller gave covenant to perform everything in the charges register to its seller To pay an indemnity if not performed Therefore we are required to give one as well pursuant to 6.6.4. SCPC | There is a chain of indemnity covenants and the seller will want 1 from the buyer. If it is an unbroken chain, the buyer must give an indemnity to the seller (SCPC 6.6.4) All positive covenants must be performed by client even though they do not run with the land because of this separate covenant If you breach the covenant then they will have to indemnify the seller | Inform client and explain the consequences of breaching i.e. Client will be liable for both positive and negative covenants. Ensure that if ever sold you obtain a similar covenant. Check to see whether seller has maintained the object of the covenant (e.g. wall, fence, roof); Check condition of object of the covenant/ survey |
“a CAUTION registered in favour of…” [these have been replaced by unilateral notices since 2003] They appear where proprietor disputes an interest and doesn’t consent to a notice on the register | Caution | This indicates that there is a caution in favour of ______ | The effect of a caution is that no disposition will be registered until the cautioner has been given the opportunity to justify and (if applicable) protect its interest. Sale cannot be made while this remains | Ask seller to deal with the caution or walk away Proprietor can ask Registrar to “warn off” (WO) the caution. The cautioner must justify his claim within 14 days or entry is removed. WO is only useful if the caution is removed. Make it a condition of the contract to obtain a successful warning off. |
| “No disposition of the registered estate without written consent of the lender who owns the…” | Entry__ of the Proprietorship registry refers to a Restriction on disposition | No disposition of registered estate is to be registered without written consent of lender (Name of Bank and Date of Loan) | The named lender must give consent to any disposition Client will not be able to register title to the property without written consent of the lender; If not complied with then the client will not be registered as legal owner | Inform the lender of intended transaction and request consent from lender. Raise requisitions with the seller to ensure it has been done and removed Get an undertaking from seller/solicitor to provide consent Make it a condition of the contract that if consent is not obtained Client will break deal. |
