FLK2 Assessment: Property Law and Practice, Wills and the Administration of Estates, Solicitors Accounts, Land Law, Trusts Law, Criminal Liability and Criminal Law and Practice

Property Law and Practice

Assessment objectives

Candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. The key elements of a freehold and/or leasehold residential or commercial property transaction.
2. Investigation of a registered or an unregistered freehold and/or leasehold title.
3. Pre-contract searches and enquiries undertaken when acquiring a freehold and/or leasehold property.
4. Steps in progressing a freehold and/or leasehold property transaction to exchange of contracts.
5. Pre-completion steps relevant to a freehold and/or leasehold property transaction.
6. Completion and post-completion steps relevant to a freehold and/or leasehold property transaction in each of England and Wales including remedies for delayed completion.
7. The grant and the assignment of a commercial lease and/or underlease.
8. The key lease covenants in a commercial lease and the law relating to their breach.
9. Security of tenure relating to commercial leases under the Landlord and Tenant Act 1954 Part II.
10. Taxation of property transactions through Stamp Duty Land Tax for land in England, Land Transaction Tax for land in Wales, Value Added Tax and Capital Gains Tax.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the subject areas within this FLK2 assessment which might be encountered in practice.

Wills and the Administration of Estates

Assessment objectives

Candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. The validity of a will and interpretation of the contents of a will. The distribution of testate, intestate and partially intestate estates.
2. The law and practice in connection with an application for a grant of representation.
3. The law and practice of Inheritance Tax in the context of lifetime gifts and transfers on death.
4. The planning, management and progression of the administration of an estate including claims under the Inheritance (Provision for Family and Dependants) Act 1975.
5. The law and practice relating to personal representatives and trustees in the administration of estates and consequent trusts. The rights, powers and remedies of beneficiaries of wills and consequent trusts.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates will not be required to demonstrate knowledge relating to foreign law, foreign assets or foreign taxes.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the subject areas within this FLK2 assessment which might be encountered in practice.

Solicitors Accounts

Assessment objectives

Candidates are required to apply relevant core principles of double entry bookkeeping and the SRA Accounts Rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. Transactions involving client money and money belonging to the authorised body.
2. Operation of ledgers and bank accounts; the payment of interest.
3. Breaches of the SRA Accounts Rules.
4. Accounting entries required; bills; obtaining and delivery of accountants’ reports; obligations regarding record-keeping.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the subject areas within this FLK2 assessment which might be encountered in practice.

Land Law

Assessment objectives

Candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. Registered and unregistered land.
2. Freehold and leasehold estates, and legal and equitable interests in land.
3. Landlord and tenant.
4. Co-ownership.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the subject areas within this FLK2 assessment which might be encountered in practice.

Trusts Law

Assessment objectives

Candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. Express and implied trusts.
2. The fiduciary relationship.
3. Trustees’ duties, powers and liability.
4. Equitable remedies.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates will not be required to demonstrate knowledge relating to foreign assets, foreign law or foreign taxes.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the topics within this FLK2 assessment which might be encountered in practice.

Criminal Liability

Assessment objectives

In the context of specified criminal offences, candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following areas:

1. The core principles of criminal liability including actus reus and mens rea, specific and general defences, and participation.

Candidates must demonstrate their ability to act honestly and with integrity and in accordance with the SoSC, the SRA Principles and the Code of Conduct.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice set out below.

Questions may draw on any combination of the topics within this FLK2 assessment which might be encountered in practice.

Criminal Law and Practice

Assessment objectives

In the context of specified criminal offences, candidates are required to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-based and ethical problems and situations in the following area:

1. The law, procedure and processes involved in advising a client at the police station.
2. The law, procedure and processes involved in pre-trial considerations.
3. The law, procedure and processes involved to meet the client’s objectives.
4. The law, procedure and processes involved in magistrates’ court and Crown Court trials, including sentencing and appeals.

Legal Knowledge: Property Law and Practice, Wills and the Administration of Estates, Solicitors Accounts, Land Law, Trusts, Criminal Liability and Criminal Law and Practice

Property Law and Practice

Core knowledge areas of freehold real estate law and practice

Investigation of a registered and unregistered freehold title:

• key elements and structure of freehold property transactions
• process of analysing Land Registry official copy entries
• process of analysing an epitome of title and deducing ownership
• issues that could arise from an investigation of title and further action required
• purpose and process of reporting to the client.

Pre-contract searches and enquiries:

• range and purpose of making searches and raising enquiries.
• who would make the searches and raise enquiries.
• results of searches and enquiries.

Law Society Conveyancing Protocol

Finance:

• sources of finance for a property transaction
• types of mortgage.

Acting for a lender:

• lender’s requirements
• purpose of a certificate of title.

Preparation for and exchange of contracts:

• key conditions contained in the:
  • Standard Conditions of Sale
  • Standard Commercial Property Conditions.
• purpose of, and matters covered by, special conditions
• methods of holding a deposit:
  • stakeholder
  • agent
• insurance and risk
• basics of VAT in a contract
• timing for issuing certificate of title to a lender
• the practice, method and authority to exchange
• consequences of exchange.

Pre-completion:

• form of transfer deed and formalities for execution
• pre-completion searches
• pre-completion steps.

Completion and post-completion:

• methods and effect of completion
• post-completion steps.

Remedies for delayed completion:

• common law damages
• contractual compensation
• notice to complete
• rescission.

Core knowledge areas of leasehold real estate law and practice

Structure and content of a lease:

• repair
• insurance
• alterations
• user and planning
• rent and rent review
• alienation
• options for the term of a lease, including break clauses
• Code for Leasing Business Premises.

Procedural steps for the grant of a lease or underlease:

• drafting the lease
• purpose of an agreement for lease
• deduction and investigation of title
• pre-contract enquiries and searches
• pre-completion formalities
• completion and post-completion steps.

Procedural steps for the assignment of a lease:

• deduction and investigation of title
• pre-contract enquiries and searches
• landlord’s consent
• deed of assignment and covenants for title
• pre-completion formalities
• authorised guarantee agreement
• completion and post-completion steps.

Licence to assign and licence to underlet:

• purpose of and who prepares the draft
• privity of contract and how the licence deals with this
• key provisions in the licence.

Leasehold covenants:

• liability on covenants in leases –
  • leases granted before 1 January 1996
  • leases granted on or after 1 January 1996

Remedies for breach of a leasehold covenant:

• action in debt
• forfeiture
• Commercial Rent Arrears Recovery
• pursue guarantors and/or rent deposit
• specific performance
• damages
• self-help/Jervis v Harris clause.

Termination of a lease:

• effluxion of time
• surrender
• merger.

Security of tenure under a business lease:

• Landlord and Tenant Act 1954 (Part II) –
  • application of 1954 Act
  • renewal lease by the tenant
  • termination by the landlord
  • landlord’s grounds of opposition
  • terms of new lease
  • availability of compensation.

Core principles of planning law in England and Wales

Statutory definition of “Development”

Matters that do and do not constitute “Development”

Matters that do not require express planning permission

Building regulations control

Enforcement: time limits and the range of local planning authority’s enforcement powers

Taxation – property

Stamp Duty Land Tax in England and Land Transaction Tax in Wales:

• basis of charge in both England and Wales for:
  • residential property
  • non-residential freehold property.

Value Added Tax:

• basis of charge:
  • what constitutes a taxable supply
  • differences between standard, exempt and zero-rated supplies
• reasons why a client would make an option to tax and the effect that has.

Capital Gains Tax:

• basis of charge
• Private Residence Relief.

Wills and the Administration of Estates

Wills and Intestacy

Validity of wills and codicils:

• testamentary capacity
• duress and undue influence
• formal requirements.

Personal Representatives:

• the appointment of executors
• renunciation and reservation of power.

Alterations and amendments to wills:

• effect of alterations made to wills both before and after execution
• use of codicils.

Revocation of wills:

• methods of revocation
• effect of marriage and divorce of a testator.

The interpretation of wills:

• effect of different types of gift
• failure of gifts.

The intestacy rules:

• Section 46 of The Administration of Estates Act 1925
• the statutory trusts.

Property passing outside the estate:

• joint property
• life policies
• pension scheme benefits
• trust property.

Probate and Administration Practice

Grants of representation:

• need for grant
• the relevant provisions of the Non-Contentious Probate Rules
• application procedure
• valuation of assets and liabilities
• excepted estates
• methods of funding the initial payment of Inheritance Tax
• burden and incidence of Inheritance Tax.

Administration of estates:

• duties of personal representatives
• liabilities of personal representatives and their protection
• the sale of assets to raise funds to pay funeral expenses, tax, debts and legacies
• distribution of the estate.

Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975:

• time limit
• applicants
• ground.

Taxation – wills and the administration of estates

Inheritance Tax:

• lifetime transfers that are immediately chargeable and those that are potentially exempt
• transfers on death
• exemptions and reliefs
• the scope of anti-avoidance provisions.

Income and Capital Gains Tax in respect of the period of the administration of an estate:

• the personal representatives’ liability to Income Tax and Capital Gains Tax
• the beneficiaries’ liability to Capital Gains Tax on inherited assets.

Solicitors Accounts

Client money:

• definition
• requirement to pay client money into a client account
• circumstances in which client money may be withheld from a client account
• repayment
• accounting entries required.

Client account:

• meaning and name of account
• obligation not to use client account to provide banking facilities
• withdrawals and accounting entries required.

Requirement to keep client money separate from money belonging to the authorised body

Interest:

• requirement to pay interest on client money
• accounting entries required.

Breach of the SRA Accounts Rules:

• duty to correct breaches of SRA Accounts Rules promptly on discovery
• accounting entries required.

Requirement to keep and maintain accurate records in client ledgers, including requirement to carry out reconciliation of client accounts and to keep a record of bills to include:

• disbursements using the agency and principal methods
• transfers
• submission, reduction and payment of bills including the VAT element
• accounting entries required.

Operation of joint account; operation of a client’s own account

Third-party managed accounts

Obtaining and delivery of accountants’ reports; storage and retention of accounting records

Land Law

Nature of Land:

• distinction between real property and personal property
• how to acquire and transfer legal estates
• how to acquire and dispose of legal and equitable interests in land
• methods to protect and enforce third party interests
• different ways in which land can be held
• legal formalities required to create and transfer interests and estates in land.

Title to Land:

• registration of title to land:
  • estates that can be substantively registered
  • how to protect interests
  • interests that override registration and interests that need to be protected on the register
• core principles of unregistered title to land:
  • role of title deeds
  • Land Charges
  • continuing role of doctrine of notice.

Co-ownership and Trusts:

• differences between joint tenants and tenants in common in law and in equity
• rule of survivorship
• severance of joint tenancies
• solving disagreements between co-owners by reference to sections 14 and 15 of Trusts of Land & Appointment of Trustees Act 1996.

Proprietary Rights:

• essential characteristics of easements
• methods for creation of easements
• rules for the passing of the benefit and burden of freehold covenants
• mortgages, including enforceability of terms, priority of mortgages, lender’s powers and duties, and protection of mortgagors and other third parties with an interest in the land.

Leases:

• relationship between landlord and tenant in a lease
• essential characteristics of a lease including the difference between a lease and a licence
• privity of contract and privity of estate
• rules for the passing of the benefit and burden of leasehold covenants and enforceability
• purpose and effect of an alienation covenant
• remedies for breach of leasehold covenants (including forfeiture)
• different ways a lease can be terminated.

Trusts Law

Creation and requirements of express trusts:

• the three certainties of intention, subject matter and objects:
  • fixed interest trusts
  • discretionary trusts
• formalities to create express inter vivos trusts
• constitution of express inter vivos trusts and exceptions to the rule that equity will not assist a volunteer.

Beneficial entitlement:

• fixed, discretionary, vested, contingent interests
• the rule in Saunders v Vautier.

The distinction between charitable trusts and non-charitable purpose trusts

Resulting trusts:

• how they arise and when they are (or are not) presumed.

Trusts of the family home:

• establishment of a common intention constructive trust:
  • legal title in the name of both parties/sole party
  • express declaration or agreement as to equitable ownership
  • direct and indirect contributions
• requirements to establish proprietary estoppel.

Liability of strangers to the trust:

• establishing recipient liability
• establishing accessory liability.

The fiduciary relationship and its obligations:

• duty not to profit from fiduciary position
• trustees not to purchase trust property
• fiduciary not to put himself in a position where his interest and duty conflict.

Trustees:

• who can be a trustee; appointment, removal and retirement of trustees
• trustees’ duty of care
• trustees’ duty to invest (and powers in relation to investment)
• trustees’ statutory powers of maintenance and advancement.

Trustees’ liability:

• breach of trust
• measure of liability
• protection of trustees
• limitation period.

The nature of equitable remedies and the availability of tracing in equity.

Criminal Liability

The core principles of criminal liability relating to the specified criminal offences listed below:

Specified criminal offences:

• offences against the person:
• common assault: assault and battery
• s. 47 Offences Against the Person Act 1861
• s. 20 Offences Against the Person Act 1861
• s. 18 Offences Against the Person Act 1861
• theft offences:
  • s. 1 Theft Act 1968
  • s. 8 Theft Act 1968
  • s. 9 Theft Act 1968
  • s. 10 Theft Act 1968
• criminal damage:
  • simple criminal damage
  • aggravated criminal damage
  • arson
• homicide:
  • murder
  • voluntary manslaughter
  • involuntary manslaughter (unlawful act manslaughter, manslaughter by gross negligence)
• fraud:
  • by false representation
  • by abuse of position
  • by failing to disclose.

Definition of the offence:

• actus reus
• mens rea.

General defences:

• intoxication
• self-defence/defence of another.

Partial defences:

• loss of control
• diminished responsibility.

Parties:

• principal offender
• accomplices.

Inchoate offences:

• Attempt to commit an offence.

Criminal Law and Practice

Advising clients, including vulnerable clients, about the procedure and processes at the police station

Rights of a suspect being detained by the police for questioning:

• right to legal advice
• right to have someone informed of arrest
• reviews and detention time limits under PACE 1984, Code C.

Identification procedures:

• when an identification procedure must be held
• different types of identification procedure
• procedure for carrying out an identification procedure PACE 1984, Code D.

Advising a client, including vulnerable clients, whether to answer police questions:

• right to silence
• adverse inferences.

Procedure for interviewing a suspect under PACE 1984:

• role and appropriate conduct by defence legal representative/ solicitor including representation of vulnerable client
• role of appropriate adult and who can be an appropriate adult.

The procedures and processes involved in criminal litigation

Bail applications:

• the right to bail and exceptions
• conditional bail
• procedure for applying for bail
• further applications for bail
• appeals against decisions on bail
• absconding and breaches of bail.

First hearings before the magistrates’ court:

• classification of offences
• applying for a representation order
• procedural overview – what will happen at the hearing
• the role of the defence solicitor at the hearing.

Plea before Venue:

• procedure on defendant entering plea
• advising the client on trial venue.

Allocation of business between magistrates' court and Crown Court:

• procedure ss. 19–20 and s. 22A Magistrates' Courts Act 1980
• sending without allocation s. 50A and s. 51 Crime and Disorder Act 1998.

Case management and pre-trial hearings:

• Magistrates' court case management directions
• Plea and Trial Preparation Hearing
• disclosure – prosecution, defence and unused material.

Principles and procedures to admit and exclude evidence:

• burden and standard of proof
• visual identification evidence and Turnbull guidance
• inferences from silence ss. 34, 35, 36, 37, 38 Criminal Justice and Public Order Act 1994
• hearsay evidence:
  • definition
  • grounds for admitting hearsay evidence
• confession evidence:
  • definition
  • admissibility
  • challenging admissibility ss. 76 and 78 PACE 1984
• character evidence:
  • definition of bad character
  • the 7 gateways s. 101(1) Criminal Justice Act 2003
  • the 3 gateways s. 100(1) Criminal Justice Act 2003
  • procedure for admitting bad character evidence
  • court’s powers to exclude bad character evidence
• exclusion of evidence:
  • scope and application of s. 78 PACE and the right to a fair trial.

Trial procedure in magistrates’ court and Crown Court:

• burden and standard of proof
• stages of a criminal trial, including submission of no case to answer
• modes of address and Court room etiquette
• difference between leading and non-leading questions
• competence and compellability
• special measures
• solicitor’s duty to the court.

Sentencing:

• role of sentencing guidelines
• determining seriousness including aggravating and mitigating facts
• concurrent and consecutive sentences
• mitigation
• types of sentence:
  • custodial sentences
  • suspended sentences
  • community orders
• Newton hearings.

Appeals procedure:

• appeals from the magistrates’ court:
  • procedure for appeal against conviction and/or sentence
  • powers of the Crown Court
  • appeal to the High Court by way of case stated
• appeals from the Crown Court:
  • grounds of appeal
  • procedure for making the appeal
  • powers of the Court of Appeal.

Youth court procedure:

• jurisdiction and grave crimes
• allocation
  • youths jointly charged with adult
• sentencing:
  • role of the Sentencing Children and Young People – definitive guidelines
  • referral orders
  • detention and training orders
  • youth rehabilitation orders.

Preliminary considerations for the use of the Welsh language in criminal proceedings.