General Property

The documents set out below contain proforma replies to the suite of Commercial Property Standard Enquiries - version 3. These enable the fee earner more speedily to complete standard pre-contract enquiry replies.

However, a general warning is given in relation to the compiling of "standard" replies. It comes from the case of William Sindall plc v Cambridgeshire County Council [1993] EWCA Civ 14 (per Hoffmann LJ):

"It is well established that a statement that a vendor is not aware of a [particular matter] carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists...In my judgment, the answer "Not so far as the Vendor is aware" represents not merely that the vendor and his solicitor had no actual knowledge of a defect, but also that they have made such investigations as could reasonably be expected to be made by or under the guidance of a prudent conveyancer."

The lawyer should treat proforma standard replies with great circumspection, and should ensure that all replies are tailored so as (a) to give accurate information, and (b) to avoid misrepresentation. These documents are only intended to give you the tools from which you can compile your client's replies. They do not provide the replies themselves.

A set of consultation drafts of enquiries (CPSE.6 enquiries) for the purposes of the Carbon Reduction Commitment are available for inspection. Pending approval of these enquiries by the London Property Support Lawyers Group over the summer months, some lawyers may choose to use the drafts as actual enquiries.

The drafts are:

CPSE.6A - CRC enquiries for acquisition of freehold property with vacant possession where Buyer is a CRC Participant.

CPSE.6B - CRC enquiries for acquisition of freehold property with vacant possession where Buyer is not a CRC participant

CPSE.6C - CRC enquiries for acquisition of freehold property subject to occupation leases where the Buyer is a CRC participant.

CPSE.6D - CRC enquiries for acquisition of freehold property subject to occupation leases where Buyer is not a CRC participant.

CPSE.6E - CRC enquiries for acquisition of leasehold property with vacant possession where Buyer is a CRC participant.

CPSE.6F - CRC enquiries for acquisition of leasehold property with vacant possession where Buyer is not a CRC participant.

CPSE.6G - CRC enquiries for acquisition of leasehold property subject to occupation leases where Buyer is a CRC participant.

CPSE.6H - CRC enquiries for acquisition of leasehold property subject to occupation leases where Buyer is not a CRC participant.

From here, you can access the BPF Commercial Property Standard Enquiries - CPSE version 3, and also the relevant explanatory notes.

From June 2, 2010, the CPSEs have been made available as "Version 3" enquiries, although no actual changes have been made to the content of the enquiries. Changes are merely stylistic. The enquiries are currently under review and are expected to be updated over the summer months.

The CPSEs are maintained on the Practical Law Company website, and these links will connect through to that site. The CPSEs are subject to terms of use set out on each form. Use the following links to access Version 3:

CPSE.1 – (version 3.1) - general enquiries to be raised in connection with every commercial property transaction.

CPSE.2 – (version 3.1) - additional enquiries to be raised where the purchase is subject to tenancies.

CPSE.3 – (version 3.0) - additional enquiries to be raised where the transaction is the grant of a new lease.

CPSE.4 – (version 3.1) - additional enquiries to be raised where the transaction is the assignment of a lease.

CPSE.5 – (version 3.0) - additional enquiries to be raised where the transaction is an agreement for the surrender of a lease.

Rq-form - (version 3.1) - a short-cut form for raising BPF standard enquiries.

Form Scr - (version 3.0) - solicitor's completion requirements - intended for use after exchange of contracts.

Form Ster - (version 3.0) - solicitor's title and exchange requirements - intended for use at the outset of a transaction.

This document is a precedent licence to occupy premises.

Before using this precedent document, it is advisable to read the drafting notes accompanying it. If you have any queries or comments about this document or the drafting notes, use the contact tab at the top of the page.

The drafting notes contain warnings about using a licence to occupy in cases where the occupier will have exclusive possession of the premises. To ascertain whether an agreement for business occupation is a tenancy or a licence, one should apply the classic test of a tenancy given by the House of Lords in Street v Mountford [1985] AC 809: unless the surrounding circumstances indicate to the contrary, a court will infer a tenancy wherever there is exclusive possession of premises, at a rent (although this is not essential), for a term (either periodic or fixed). Just because an agreement says it is a licence does not mean that it is a licence: “The manufacture of a five pronged instrument for digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade." (Per Lord Templeman)

Also attached is a draft letter which is intended to provide a would-be tenant with access to a property pending settlement of the terms of a travelling draft lease (which is appended to the letter).

In all cases, the solicitor for the landlord/owner/licensor should consider using alternatives to a licence to occupy, such as (a) a contracted-out lease; (b) a short-term/short-form lease within section 43(3) Landlord and Tenant Act 1954; or (c) a tenancy-at-will.

The attached document is draft Report on a Lease.

It is intended to be appended to a full Report on Title - e.g the Property PSL Report on Title.

This report on a lease is drafted for use primarily where property is being acquired subject to occupational leases. However, the report is capable of being "topped and tailed" so as to amount to a report on the acquisition of an existing lease - but note that this report only contains matters relating to the lease terms themselves, and not to any other aspects of a leasehold acquisition transaction.

Of course, when using this report, it is essential to check that the many statements made about the contents of the lease are correct, and not misleading or imprecise, and that there are no other additional features of the lease which require explanation.

Where property is sold subject to leases, a lease report will usually be appended to the report on title. The property lawyer has the choice of (a) compiling a lease report in respect of each occupational lease (using, for example, this Report on a Lease; or (b) following the kind of approach adopted in the City of London Certificate of Title (6th Edition) wherein the report/certificate effectively states that the occupational leases are in an institutional format (“generally accord with the requirements of institutional landlords”), and variations therefrom are highlighted.

This document is a draft deed of covenant - containing provisions for the imposition of positive and restrictive covenants. Most new covenants are imposed at the time of a sale of part of a title - in which case, the draftsperson will make use of provisions in the form TP1 to impose fresh covenants - see Property PSL Form TP1 clauses. However, if a free-standing deed is required, this document can be used.

Whilst most titles are registered at the Land Registry, this deed can be used whether title to the benefiting or burdened land is registered or unregistered.

There is no prescribed Land Registry form for use where entering into new covenants affecting registered land. Whilst it will be necessary to use the prescribed Form AP1 for the registration of the burden of any restrictive covenants against burdened registered titles, there is no form prescribed for the deed itself. Remember (a) that the Land Registry does not register the benefit of restrictive (or indeed positive) covenants; and that (b) if the title to the burdened land is unregistered, a D(ii) land charge should be registered to protect any restrictive covenants.

As from April 2010, following the commencement of the Perpetuities and Accumulations Act 2009, which limits the operation of the rule against perpetuities in instruments made from commencement of the Act to a limited number of trust cases set out in section 1 of that Act, all references to perpetuity periods have been removed from this precedent.

This document is a standard form report on title. It is important that all fee earners within a firm are working from the same basic template for a report on title. The report on title will be instrumental in governing the firm's liability to clients in the event that the client suffers loss in connection with the transaction. A report on title should (as this one does) serve the dual purpose of providing information to the client in a user-friendly way, whilst also setting parameters to the retainer to limit the liability of the firm. Limiting liability by using appropriate caveats in reports to clients is an essential part of risk management.

This document provides the standard template which, of course, may be adapted to suit the needs of each client of the firm.

Attached below are (i) the original version of the report on title; (ii) a May 2009 updated version (v2); (iii) a further comparison version which is for information purposes only and which reveals (in red font) and explains the May 2009 changes; and (iv) the latest (v3 Sept 09) version which includes provisions dealing with Carbon Reduction Commitment.

This document contains prescribed attestation clauses for execution of deeds and documents by:

• Individuals
• Attorneys
• Companies
• Liquidators
• Administrators
• Administrative Receivers
• Foreign Companies
• Limited Liability Partnerships

The documents set out below contain proforma replies to the suite of Commercial Property Standard Enquiries. These enable the fee earner more speedily to complete standard pre-contract enquiry replies.

However, a general warning is given in relation to the compiling of "standard" replies. It comes from the case of William Sindall plc v Cambridgeshire County Council [1993] EWCA Civ 14 (per Hoffmann LJ):

"It is well established that a statement that a vendor is not aware of a [particular matter] carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists...In my judgment, the answer "Not so far as the Vendor is aware" represents not merely that the vendor and his solicitor had no actual knowledge of a defect, but also that they have made such investigations as could reasonably be expected to be made by or under the guidance of a prudent conveyancer."

The lawyer should treat proforma standard replies with great circumspection, and should ensure that all replies are tailored so as (a) to give accurate information, and (b) to avoid misrepresentation. These documents are only intended to give you the tools from which you can compile your client's replies. They do not provide the replies themselves.

This document contains a form of legal charge for use to enable the securing of sums falling to be paid under a separate agreement between the parties - such as a building agreement or overage agreement. It envisages the creation of a legal charge to secure sums falling due under the separate agreement. To the extent that it may be questionable whether a legal charge can be created because of the uncertain nature of the sums covered by the charge, an equitable charge is created.

For a simple form of legal charge, the Land Registry Form CH1 (attached below) may be used.