FLK2 SQE Key info - all topics

Definition - CREST members - Trusts

• Members are legal owners of securities registered in their names

• They generally acquire and hold the securities for the benefit of their clients on trust.

• Member is the legal owner of the share the private investor has equitable and beneficial interest

Definition - chose in action

• A right to something such as a payment of debt or other contractural right that can be recovered through a legal action.

• This is a tangible item I.e. a company share

Definition - bailment

• Transfer of possession of chattels from one person to another,

• Transferor is the bailor

• Transferee is the bailee

Definition - proprietary estoppel

• Equitable doctrine enables a person to informally acquire property or personal rights.

• Enables the court to do justice by modifying the parties strict legal rights.

Deadline- common law perpetuity period

• 21 years

• Must be clear from outset that it will come to an end within this period

Deadline - statutory perpetuity period

• 125 years

• Trust property must vest in a person or charity at the end of the period.

• The wait and see rule can apply.

Definition - mutual will

• Where one testator agrees with another testator to each make a will on terms agreed between them.

• They agree that neither of them will amend the will without the consent of the other.

• If testator attempts to revoke their own will equity will impose a constructive trust over that testators property on terms previously agreed and limit effect of new will.

Definition - mirror will

• Wills of a couple that mirror each other.

• No constructive trust is imposed

Definition - precatory trust

• Arises where a gift is made to a beneficiary by will with a wish expressed as to how the beneficiary should pass on those assets to others.

Definition - grant of probate

• Used where the deceased left a valid will that appoints executors at least one of whom will act

Definition - grant of letters of administration (with will)

• Used where the deceased left a valid will but no executors are acting.

• Administrators are appointed under RULE 20 NCPR

Definition - Grant of letters of administration

• Used where the deceased died intestate

• Administrators appointed under Rule 22 NCPR

Time limit - claim under IPFDA 1975

• Application cannot be made more than 6 months after date the Grant of Representation was made.

• Court has discretion to extend the time limit.

Time limit - variation of will

• If variation or disclaimer of inheritance is made in 2 years following death, the beneficiary may elect in writing to have the gift read back to the testators estate for IHT and/or CGT purposes and gifts are treated as made by the deceased.

Deadline - submitted IHT 400

• 12 months from end of month of death

Deadline - paying IHT

• 6 months from date of end of month of death

S9 wills act 1837 - requirements for a valid will

• In writing

• Signed by the testator or by some other person in his presence and by his direction.

• Testator intended by signature to give effect to the will

• Signature is made or acknowledged by the testator in presence of two or more witnesses present at the same time

• each witness either attests and signs the will, acknowledges the signature in the presence of the testator.

Inheritance (Provision for Family and Dependants) Act 1975 - process and requirements to claim

• Close relatives have no legal right to inherit any fixed proportion of the estate but can make an application under this Act to vary the content of a will or intestacy after deceased has died.

• To make the application the application must : be within jurisdiction; demonstrate they fall within the recognised category of eligible application; make claim within time limit

Categories of applicant for a claim under IPFDA 1975

1. Spouse/civil partner

2. Former spouse who has not remarried

3. Person who cohabited with the deceased for 2 years prior to death

4. Child of deceased

5. Person treated by deceased as child of family

6. Any other person maintained by deceased immediately before death

Definition - confession

• Includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Definition- interview

• Questioning of a person regarding their involvement or suspected involvement in a criminal offence.

Definition - significant statement

• Statement which appears to be capable of being used in evidence and in particular any direct admission of guilt.

Definition - Hearsay

• A statement made out of court that the person who made it intended another to believe, subsequently tended in evidence as proof of the matter stated.

Definition - res gestae

• Statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

• Statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement.

• Statement relates to a physical sensation or mental state.

Definition - bad character

• Evidence of or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence with which the defendant is charged or, is evidence of misconduct in connection with the investigation or prosecution of that offence.

Definition - bind over

• Imposed by Magistrate court and Crown court.

• Can be imposed on someone instead of them entering a guilty plea or being tried for an offence it can be imposed following an acquittal or on a witness in a case.

• A person can be bound over by a court to keep the peace for a sum of money that they forfeit if they fail to do so.

Deadline - review of detention

• First review must take place no more than 6 hours after detention was authorised by the custody officer.

• Periodically every 9 hours after first review

Deadline - max period of custody

• 24 hours from “relevant time”

• Relevant time is the moment the suspect arrives at the police station as indicated on the custody record

Deadline - extensions of detention

• Detention can be extended by 12 hours taking the max period of detention in police station to 36 hours from the “relevant time“.

• To extend the authorisation must be given before initial 24 hours expire

• Officer must be at least superintendent it must be an indictable offence.

Deadline - power to detain beyond 36 hours

• Apply to Magistrate court up to max of 96 hours

• 36 hours for first application and final application of 36 hours

Deadline - timeline for bail in the standard case

• If defendnat is unsuccessful in first attempt to apply for bail

• Case will be returned to court a week later

Deadline - bail timeline -urgent cases

• Crown court will hear a bail appeal no later than 1 business day after appropriate notice is served

Deadline - time limit for initial disclosure

• No later than beginning of the day of the first hearing

Deadline - defence statement and notice of intention to call defence witnesses.

• A defendant must do so within 28 days of the date when the prosecution complies with its duty of initial disclosure in the crown court

• Defendant must do so within 10 day of the date when the prosecution complies with its duty of initial disclosure in the Magistrates court.

Deadline - notice of hearsay

• Prosecution must serve notice not more than 20 business days after a not guilty plea in the Magistrate court or 10 business days after a not guilty plea in the Crown court or

• Defendant must serve notice as soon as reasonably practicable

Deadline - objection to hearsay evidence

• Application to the court and every other party as soon as reasonably practicable and in any event not more than 10 business days after either of the following whichever happens last

• Service of the notice to introduce evidence

• Service of evidence objected to if that is evidence for which no notice is required or

• Defendant pleads not guilty

Deadline - bad character application - non-defendant bad character

• Magistrate Court and Crown Court - as soon as reasonably practicable; in any event not more than 10 business days after the prosecutor discloses material on which the application is based

• Response - not more than 10 business days after service of the application

Deadline - bad character application - defendant

• Prosecution evidence -magistrate court - not more than 20 business days after the defendant pleads not guilty; Crown Court not more than 10 business days after the defendant pleads not guilty.

• Co-defendant evidence - as soon as reasonably practicable and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based.

• Response - no more than 10 business days after service of notice.

Deadline - application to exclude a confession

• In Magistrate court - advance notification - any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that - in Magistrate court any application should be dealt with as a preliminary issue.

• In Crown court - generally at the PTPH the judge is likely to order when the defence is to serve the skeleton argument. It can be made at pre-trial hearing listed for this purpose or dealt with prior to opening the case to the jury

Deadline - max length of a community order

3 years

Deadline - max length of determinate custodial sentence in the magistrate court

• Max of 6 months

• or 12 months where person is charged with 2 or more either way offences

Deadline - max length of suspended sentence - crown court

• Max length of 2 years custody

• Between 6 months and years suspended

Deadline - appeal of magistrate decision by way of case stated

• Deadline is 21 days from the date if the decision sought to be appealed, save that where sentence is adjourned following conviction the date of decision is deemed the date of sentence even where conviction is being appealed

Deadline - application for judicial review

• 3 months after grounds arose- but as soon as possible

Deadline - appeal against conviction in crown court - time limit for lodging notice of appeal to Registrar of the criminal division of court of appeal

• 28 days of conviction

Deadline - where attorney general considers a sentence unduly lenient

• Must consider whether leave should be sought for a reference a time limit is 28 days

Deadline - the limit in the youth court for sentencing

• 2 years

Definition - assault

• Causing the victim to apprehend immediate and unlawful personal violence.

• Intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence

Definition - battery

• Applying unlawful force or another

• Intention or recklessness as to applying unlawful force to another.

Definition - section 47 Offences against the person - assault occasioning actual bodily harm

• Assault meaning an assault or battery ; occasioning actual bodily harm

• Mens Rea for assault or battery; intent or recklessness as to causing the victim to apprehend immediate and unlawful personal violence or applying unlawful force upon another

Definition - s20 OAPA - GBH

• Wound or infliction of grievous bodily harm

• D must intend or be reckless as to causing of some harm

Definition - section 18 OAPA - GBH with intent

• Wound or cause GBH

• D must intend to cause GBH

Definition - basic criminal damage (arson)

• Destroy or damage (by fire); property; belonging to another; without lawful excuse

• Intention or recklessness as to the destruction or damage of property belonging to another (by fire)

Definition - aggravated criminals damage (arson)

• Destroy or damage (by fire) ; property

• Intention or recklessness as to the destruction or damage of property (by fire)

• Intention or recklessness as to the endangerment of life by the damage or destruction (by fire); no life need actually be endangered; damage intended or damage d was reckless to is the issue, as opposed to the amount of damage caused, danger to life must arise from the damaged property not the means of damaging it.

Definition - theft

• A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Definition - robbery

• Actus reus of theft plus use of force

• On any person use or threat of force immediately before or at the time of stealing

• Mens Rea for theft plus intention to use force in order to steal

Definition - burglary

Two types

• Section 9(1)(a) committed at the point of entry into the building as a trespasser and the defendant must know or be reckless as to entry as a trespasser and intend to commit one of the offences set out in theft/GBH or criminal damage

• Section 9(1)(b) - committed when having entered the building as a trespasser knowing or being reckless as to entry as a trespasser the defendant goes on to commit theft, or attempted theft, GBH or attempted GBH

Definition - fraud by false representation

• Express or implied representation;

• Representation to fact, law or statement of mind

• Representation must be untrue or misleading;

• It can arise in circumstances of overcharging

• Dishonesty; Mens Rea for false statement; intention to make a gain or cause a loss

Definition - fraud by failure to disclose

• Existence of a legal duty to disclose

• Failure to disclose information to another person

• Dishonesty

• Intention to make a gain or cause a loss

Definition fraud by abuse of position

• Occupy a position which requires D to look after V financial well being

• Determined on a case by case basis

• Can be professional, fiduciary or long term business relationship or family or voluntary relationship

• Abuse that position

• Dishonesty

• Intention to make a gain or cause a loss.

Definition - householder case

Where the defendant :

• Relies on the common law defence of self defence

• Uses force whilst in or partly in a building that is a dwelling or is forces accommodation

• Is not a trespasser at the time the force is being used

• Believed the victim to be in or entering a building as a trespasser.

Definition - inchoate offence

• Unfinished or incomplete offence

Definition - express assignment

• Benefit of the covenant is given to a person

Definition- mirror principle

• The register should reflect all matters that a property has benefit of

Definition - overriding interests

• An interest that doesn’t appear on the register but will still be binding on the owner of the legal estate and any buyer of it.

Definition - curtain principle

• Register records the ownership of the legal estate in the property - the legal title.

• If the property is held on trust the purchasers need not be concerned with the beneficial or equitable ownership of the land.

Definition - insurance principle

• Accuracy of the register is guaranteed by the state

Definition - absolute title

• Land is only bound by interests that are registered on the title or overriding

Definition - qualified title

• Title has some defect

Definition - good leasehold title

• The land registry is satisfied as to the title of the leaseholder only and not the freehold

Definition - possessory title

• Where applicant owns the property but there are no title needs to prove ownership

Definition - negative easement

• An easement which is enjoyed from the dominant owners own land and does not involve entering or using the service t land

Definition profit a prendre

• Confers on the holder of the right to take anything such as produce or animals of the land

Definition ouster principle

• An easement must not leave the servient owner with no reasonable use of the servient tenement.

Definition - registrable disposition

• Transaction which must be completed by registration I.e, transfer of legal estate; grant of legal mortgage or a legal lease

Definition - overreaching

• Has the effect of moving the beneficiary interest away from land and into money provided that the money is paid to a minimum of 2 trustees

Definition - equity’s darling

• A purchaser of the land who has acted in good faith and does not have notice of the interest

Definition- overriding lease -

• Granted for a term equal to the remaining term of the lease in question plus 3 days.

• Contains the same express covenants as the lease.

• If tenant requests an overriding lease the landlord is obliged to grant it within a reasonable time.

Definition - fixed charges under s17 LTCA 1995-

Includes arrears. Rent, service charge or insurance premiums.

Does not include unascertained liabilities or damages which have become ascertained only after a court order was obtained

Definition - puisne mortgage

• Second legal mortgage - only legal interest that a land charge can protect

Deadline - limitation period for a contractural debt for a legal mortgage

• 12 years for capital

• 6 years for interest

Deadline - compulsory first registration dates to remember

• For sales - 1 December 1990

• For gifts - 1 April 1998

Deadline - enforcement notice for breach of building regulations

• 10 years after completion of building work to serve enforcement notice

• Land owner has 28 days to alter or remove the work

Deadline - injunction for breach of building regulations

• No time limit for service

Deadline - enforcement for breach of building regulations - wales - prosecution

• Local authority has 6 months after discovering the breach to prosecute the person responsible.

• Prosecution can take up to two years after completion of the building work

Deadline - enforcement notice for breach of building regulations - wales

• 1 year after completion of building work to serve notice

• 28 days for owner of land to alter or remove the work

Deadline for an injunction due to breach of building regulations in wales

• No time limit

Deadline - breach of planning control - enforcement notice

• 28 days notice that the land must be restored to previous condition or comply with conditions set by the council

Deadline - breach of planning condition enforcement time limit

• 4 years - building works with date they were substantially completed or change of use to single dwelling house

• 10 years for other changes Of use or breach of planning conditions

Deadline - completion date and time for Standard Commercial Property Conditions (SCPC)

• Default of 20 working days after date in contract

• 2pm

Deadline - law society formula b - undertaking

• To post signed contract to the other side solicitor that day by first class post or DX or hand delivery

Deadline - priority period for registered land form OS1 or OS2

• 30 working days in favour of the person searching.

• Buyer solicitor submits the application to register the transfer within the priority period, the buyer transfers will take priority over any other application even if lodged before the buyers application.

Deadline - priority period for unregistered land using the K15 land charges search

• 15 working days

• Only necessary to complete the purchase within priority period to take priority

Deadline - notice to complete

• Makes time of the essence

• Gives both parties 10 working days to complete

Deadline - stamp duty land tax or land transaction tax

• Must be notified and laid within 14 days or 30 days respectively

Deadline - charges created by companies

• Must be registered within 21 day period starting with day after creation

Deadline - land registry application

• 30 working days of OS1 search

Deadline - unregistered land application

• 30 working days of the OS1 search

Key date for an old lease

• Pre 1 jan 1996

Key day for new leases

• 1 January 1996 onwards