TRANSFER OF PROPERTY RIGHTS IN UNITED KINGDOMAleksandra Niewczas

Four types of property rights

1. Land law (real-property) – immovables

2. Personal property – movables

3. Trusts – way of managing assets (money, investments, land or buildings) for people. There are different types of trusts and they are taxed differently.

4. Intellectual property

Statutory Law

1. Law of Property Act 1925

2. Sale of Goods Act 1979

3. Law of Property (Miscellaneous Provisions) Act 1989

4. Wills Act 1963

5. Copyright, Designs and Patents Act 1988

6. Trust of Land and Appointment of Trustees Act 1996

7. Trustee Act 2000

8. Patents Act 2004

Inheritance – wills

Will - legal declaration of how a person wishes his or her possessions to be disposed of after death.

Receiver have certain tax and legal responsibilities after inhering the property. One of them is to pay Inheritance Tax if the estate’s worth over £325,000.

When someone dies, one may be able to apply for a ‘grant of representation’. This gives him the legal right to deal with the person’s property, money and possessions (their ‘estate’) - known as ‘probate’.

A grant of representation can sometimes be known as a ‘grant of probate’, ‘letters of administration’ or ‘letters of administration with a will’.

How to make a will

Making will on his/her own with two witnesses Using a solicitor to make a will Using a will writing company to make a will Using a bank to make a will Online will writing services

Gifts

In Cochrane v Moore case the Court of Appeal held that:

An oral gift of a movable object does not pass property to the donee without delivery

In Balding v Ashley, the Court of Appeal held that:

The oral gift of a car is valid only when the delivery takes place, for example by handing over the keys of the car

Trusts

Trusts are set up for a number of reasons, including:

to control and protect family assets

when someone’s too young to handle their affairs

when someone can’t handle their affairs because they’re incapacitated

to pass on assets while you’re still alive

to pass on assets when you die (a ‘will trust’)

under the rules of inheritance if someone dies without a will (in England and Wales)

How to set up a trust

The legal wording of a trust needs to be precise, so one should ask a solicitor to set it up. It can be expensive – around £1,000 or more – but some charities have schemes where they contribute towards the parents’ costs of setting up a trust for a disabled child.

The person willing to set up a trust have to choose people to be his or her trustees, usually family members or close friends, someone to rely on. There is a must of at least two trustees, but probably no more than three or four.

Alternatively, one can appoint a company as a trustee, such as a bank or firm of solicitors.

Intellectual property

It may be necessary to transfer the Intellectual Property Rights because those are part of a business to be sold, or if an author , inventor etc. was commissioned to create a work or an invention. The effect of an assignment is that the original owner is excluded from using the IPRs unless the new owner gives him a licence. There are formalities for assignment of each form of IPR.

How to transfer IPRs? Patents or Patent Applications – an assignment must be in writing, signed by all parties

to the transaction and registered at the Patent Office within six months of the assignment. Failing registration, the assignee's rights against infringers are restricted. The assignor cannot subsequently challenge the validity of the patent.

Copyright or Design Rights – an assignment must be in writing but need only be signed by the assignor. Future copyrights may also be assigned in this way.

Registered Trade Marks or Service Marks – such a mark can be assigned independently of the goods or services to which it relates. The assignment must be registered with the Trade Marks Registry. If not, the new owner is restricted in his ability to sue infringers.

Unregistered Trade Marks – an unregistered trademark can only be assigned with the business, product or service with which it is associated.

Registered Designs – the assignment must be in writing and registered with the Designs Registry. If such registration does not occur, the assignee will have difficulties in suing infringers. There are also rules which ensure that registered designs and associated design rights are kept in the same hands.

Conveyancing

The process of moving the legal ownership of property or land from one person to another.

Process of conveyancing The seller is responsible for drawing up a legal contract to transfer ownership.

The contract contains details about:

the sale price

the property boundaries

which fixtures and fittings (like carpets and kitchen units) are included

any legal restrictions or rights, like public footpaths or rules about using the property

any planning restrictions

services to the property, like drainage and gas

when the sale will complete

If the seller has hired a solicitor or conveyancer, they will:

draft the initial contract

answer questions from the buyer’s solicitor or conveyancer (with the seller’s help)

negotiate the details of the contract if necessary

Process of conveyancing Exchanging contracts

When the buyer and seller are happy with the contract, both sides sign final copies and send them to each other.

The agreement to sell and buy is legally binding once this happens. Usually neither party can pull out without paying compensation.

Completion

Once they exchange contracts and deal with any remaining checks the buyer has asked for:

The money is transferred from the buyer to the seller.

The legal documents needed to transfer ownership are handed over to the buyer.

The seller moves out and leaves the property in the state agreed in the contract.

The seller hands over the keys to the buyer.

The property now belongs to the buyer.

Conveynacers Licensed conveyancers are property law specialists who work on behalf

of clients buying or selling property (houses, flats, business premises or land) in England and Wales. They deal with all the legal matters, administration, finance and queries involved in a property transaction.

Conveyancers process and agree contracts, transfers, mortgages and leases and draw up all the documents that sellers and purchasers must sign in the course of a transaction.

They advise clients on the technical content of the documents and their financial implications. They may act on behalf of the vendor or the purchaser, and in certain circumstances for both in the same transaction.

Contract law

‚In English Law the general law of contract is not chiefly based on legislation law, but on the common law – that is, the law developed by courts’

‚However the greatest part of the general contract law remains to be found in the accumulation of decided cases or precedents that constitute common law’

Contract as a source of obligations – after Moschi v Lep Air Services Ltd, House of Lords judgement

Types of contract

Contracts that must be made by deed – conveynaces of land and leases of property extending over period longer than 3 years

Contracts that mus be in writing (not necessarily be deed) – bills of exchange, cheques and promisory notes, consumer credit agreements, contracts of marine insurance

Contracts that must be evidenced in writing – contracts of guarantee

Contract

A contract is an agreement giving rise to obligations which are enforced or recognised by law.

In common law, there are 3 basic essentials to the creation of a contract: agreement, contractual intention and consideration.

In common law, a promise is not, as a general rule, binding as a contract unless it is supported by consideration (or it is made as a deed). Consideration is "something of value" which is given for a promisee and is required in order to make the promise enforceable as a contract. This is traditionally either some detriment to the promisee (in that he may give value) and/or some benefit to the promisor (in that he may receive value). For example, payment by a buyer is consideration for the seller's promise to deliver goods, and delivery of goods is consideration for the buyer's promise to pay. It follows that an informal gratuitous promise does not amount to a contract.

Form of a contract

The general rule is that contracts can be made informally. Most contracts can be formed orally, and in some cases, no oral or written communication at all is needed.

Thus, an informal exchange of promises can still be as binding and legally valid as a written contract. There are statutory exceptions to this rule. For example:

a lease for more than 3 years must be made by deed: Law of Property Act 1925, ss 52, 54(2);

most contracts for the sale or disposition of an interest in land must be made in writing: Law of Property (Miscellaneous Provisions) Act 1989, s 2;

contracts of guarantee are required to be evidenced in writing: Statute of Frauds, s 4.

Formation of a contract

The constituent elements of the classical model of contract are: Offer, Acceptance, Consideration, Intention to create legal relations.

Thank you for your attention !

Bibliography Books

Akkermans, B. (ed), ‚Cases, Materials, and Text on Property Law’, Oxford, Hart Publishing, 2012.

McKendric, E., ‚Contract Law. Texts, Cases and Materials’

Shapper, G., ‚English Law’

Articles

BASIC PRINCIPLES OF ENGLISH CONTRACT LAW Prepared by lawyers from Allen&Overy

Websites

https://www.gov.uk/

http://dictionary.cambridge.org/

http://www.which.co.uk/money/retirement/guides/writing-a-will/how-to-make-a-will/

https://www.moneyadviceservice.org.uk/en/articles/setting-up-a-trust