QUESTION 1 Where the Land Registry requires evidence
to show that a power of attorney has not been revoked, that
requirement can be satisfied by the production of:
(i)
Form 1 (ii) Form 2
POSSIBLE ANSWERS
YOUR ANSWER
a.
correct as to (i);
incorrect as to (ii)
b.
incorrect as to (i);
correct as to (ii)
c.
correct as to
both
d.
incorrect as to
both
Commentary: Do not forget that you
can often avoid having to send the original of a power
of attorney to the LR, and instead you can supply a Form
1 certificate.
The starting point is r61 which says that you must
normally submit a power of attorney, or a certified
copy. However, Form 1 (in Sched 3 of LRR 2003) is a
conveyancer's certificate that you can send to the LR
which confirms that the power exists, and that you are
satisfied it was validly executed and authorises the
attorney to execute the document on behalf of the
donor.
In addition, Form 2 covers the situation where there
has been more than 12 months between the creation of the
power of attorney and the execution of the document.
Rule 62 says that, in that situation, the registrar may
require the production of sufficient evidence to show
that the power had not been revoked at the time of the
transaction, and that can be by a statutory declaration
or by a conveyancer's Form 2.
Further information: Click here for the relevant Land Registry
rules
QUESTION 2 It is correct to say
that:
POSSIBLE ANSWERS
YOUR ANSWER
a.
it is mandatory to use
prescribed clauses in leases from 9 January 2006
b.
the advantage of using
prescribed clauses from 9 January is that you no longer have
to make separate applications to register a
restriction
c.
it is optional to use
prescribed clauses in leases from 19 June 2006
d.
none of the
above
Commentary: Most firms will start
using prescribed clauses in their leases after 9 January
when the provisions become optional, but not mandatory
(it is not until 19 June 2006 that they have to be
used). The advantage of voluntarily using prescribed
clauses from 9 January (apart from familiarising
yourself with the new system) is that you no longer have
to make separate applications to register a restriction.
The LR is keen to ease the pain for practitioners so as
to ensure the minimum number of errors (and so reduce
the LR's own workload) and has set up a dedicated
prescribed clauses leases helpline on 0870 908 8062.
QUESTION 3 Following the ECJ decision in Pye v
UK [2005], adverse possession will usually be
unlawful:
(i) unless proper compensation is
paid (ii) unless there are exceptional
circumstances (iii) unless the adverse possession postdates
October 2002 (when the new, LRA 2002, regime came into
force)
POSSIBLE ANSWERS
YOUR ANSWER
a.
correct as to (i), (ii)
and (iii)
b.
correct as to (i), (ii);
incorrect as to (iii)
c.
correct as to (i),
(iii); incorrect as to (ii)
d.
incorrect as to (i),
(ii) and (iii)
Commentary: Adverse possession is a
breach of the European Convention on Human Rights (and
so a breach of HRA 1998). That is the decision of the
ECJ in a case that has largely abolished adverse
possession.
The case involved 23 acres of agricultural land which
had been let to a neighbouring farmer under a grazing
agreement. But when that agreement expired the neighbour
remained in occupation and eventually claimed adverse
possession - by which time the land was worth many
millions because of its development potential. The claim
of adverse possession succeeded in the High Court,
failed in the CA, and was upheld by the HL. However, the
ECJ has now held that the whole concept of depriving a
landowner of his land without compensation - which is
the combined effect of LRA 1925 and Limitation Act 1980
- is a breach of Article 1 (entitlement 'to the peaceful
enjoyment of his possessions').
HRA 1998 came into force on 2 October 2000 and is not
retrospective. So adverse possession claims based on 12
years' occupation prior to that date may still succeed
(although that is open to some doubt), but if the 12
years expired after that date then the ECJ decision will
effectively bar any adverse possession claim in respect
of registered land. For unregistered land there is still
some uncertainty (because this case involved registered
land) but the general expectation is that similar
principles will apply.
Further information: The full report
on Pye v UK [2005] can be found here.
