Title investigation

When does title investigation usually take place in a property transaction?

Early in the pre-exchange stage.

What does “deducing title” mean for the seller?

Proving ownership to the buyer.

What title documents should the seller obtain for registered land?

Land Registry official copies, title plan and copies of relevant filed documents referred to on the register.

What must the seller’s solicitor check before sending title documents to the buyer?

That the seller is entitled to sell.

What documents does the buyer’s solicitor investigate for registered land?

Official copies, title plan and relevant documents referred to on the register.

What are the main aims of investigating registered title?

Confirm seller’s right to sell, suitability for intended use, and absence of defects affecting value or resale.

What does the Property Register describe?

The property itself, including tenure, address, extent and rights benefiting it.

What should the buyer check against the title plan?

That the size and location match their understanding.

Where are rights benefiting registered land usually recorded?

In the Property Register.

What should be checked where a property benefits from a right of way?

Registration of the burden, legal/physical adequacy, maintenance obligations and adoption issues.

Where must the burden of a registered right of way appear?

Against the servient land.

How can a right of way be legally inadequate?

E.g. a right for cars only may not permit lorry deliveries.

How can a right of way be physically inadequate?

E.g. it may be too narrow for the required vehicle.

Can users of a right of way have to contribute to maintenance?

Yes, even where not expressly stated.

What is an adopted highway?

A public highway maintainable by the local authority.

What may frontagers have to pay if a private road is adopted?

Costs of bringing the road up to adoptable standard.

What does it mean if a right is “extracted” on the register?

The relevant wording appears on the register, so the original document need not be consulted.

What does it mean if a right is not extracted?

The register refers to a filed document which must be obtained and reviewed.

What does the Proprietorship Register contain?

Registered proprietor details, class of title and restrictions affecting ownership.

Who is normally the registered proprietor on a sale?

The seller, subject to exceptions such as an executor selling an estate property.

What company details should appear in the Proprietorship Register?

Company name, number and registered office.

What should a solicitor do with company or LLP proprietor details?

Verify them at Companies House.

What is the maximum number of legal proprietors of registered land?

Four.

What should normally happen where registered land has several co-owners?

All should sign the contract and execute the transfer deed.

What does the class of title indicate?

How satisfied the Land Registry is with the proprietor’s proof of ownership.

What is absolute title?

The best and most common class, indicating no title issue and proper ownership.

What is qualified title?

Title subject to a specified defect.

What is possessory title?

Title based on possession without full title deeds, including adverse possession.

What is good leasehold title?

Leasehold title where evidence of the landlord’s title was unavailable.

What should the buyer’s solicitor do if title is not absolute?

Explain it, check lender requirements, consider indemnity insurance and possible upgrading.

What is a restriction on the Proprietorship Register?

An entry preventing certain dealings unless specified conditions are met.

What matters commonly give rise to restrictions?

Co-ownership and mortgages.

What restriction usually indicates beneficial ownership as tenants in common?

A Form A-type restriction preventing certain dispositions by a sole proprietor.

If there is no co-ownership restriction, what can generally be assumed?

The co-owners hold beneficially as joint tenants.

Can co-owners change between joint tenancy and tenancy in common during ownership?

Yes.

What must the buyer establish where property is co-owned?

That both legal and beneficial title pass to the buyer.

What is required if all co-owners are alive?

All should sign the contract and execute the transfer deed.

What is required where a surviving beneficial joint tenant sells?

They sign the documents and provide the deceased co-owner’s death certificate.

What is required where a surviving tenant in common sells?

A second trustee should be appointed to overreach the deceased’s beneficial interest.

What may the Proprietorship Register show about the seller’s previous purchase?

Price paid or stated value where acquired on or after 1 April 2000.

Where are burdens affecting registered land generally recorded?

In the Charges Register.

Where is the burden of an easement over registered land recorded?

In the Charges Register of the servient land.

What are examples of easements recorded in the Charges Register?

Rights for service media such as cables and pipes.

What should be done with leases noted in the Charges Register?

Report them to the client together with their terms.

Where is a legal mortgage over registered land recorded?

In the Charges Register.

How must a legal mortgage be created?

By deed.

Why may a lender also require a restriction in the Proprietorship Register?

To prevent sale without the lender’s consent.

What must the buyer ensure about an existing mortgage?

That it will be redeemed so the buyer takes free of it.

What should the buyer’s solicitor check early about an existing mortgage?

That the seller has sufficient funds to redeem it.

What contractual protection should be obtained regarding the seller’s mortgage?

A term requiring redemption on completion.

What undertaking should the seller’s solicitor usually give regarding the mortgage?

To redeem it from sale proceeds on completion.

How are mortgages commonly represented in the Charges Register?

One entry for the date of the charge and another for the mortgagee’s details.

What types of covenants may appear in the Charges Register?

Restrictive, positive or unknown covenants.

What covenant issues should be reported to the buyer?

Existing or proposed use that may breach a covenant.

Can a buyer assume a restrictive covenant in the Charges Register is binding?

Yes.

Can a buyer assume a positive covenant in the Charges Register is binding?

No.

What should be checked for a positive covenant on registered land?

Whether it affects the land and whether a chain of indemnity exists.

Where may a chain of indemnity appear?

In the Proprietorship Register.

What happens if a chain of indemnity is broken?

Liability extends only as far as the last person who gave an indemnity covenant.

What may be assumed if no indemnity covenant appears in the Proprietorship Register?

The chain has been broken, so the buyer should not provide one.

What is an unknown covenant?

A covenant known to exist but whose original terms are unavailable.

How should unknown covenants generally be approached?

Assume some may be restrictive.

What may be appropriate where existing use breaches a covenant but no objection has been made?

Indemnity insurance, usually at the seller’s expense.

What alternative is there to indemnity insurance for a restrictive covenant?

Seek consent from the person with the benefit of the covenant.

What tribunal may discharge certain restrictive covenants?

The Upper Tribunal (Lands Chamber).

Why may approaching the person with the benefit jeopardise insurance?

Insurers often require that no contact has been made with them.

What is a notice on registered title?

An entry protecting a third-party interest against later dealings.

Does registration of a notice prove the underlying interest is valid?

No.

What interests may be protected by notice?

E.g. equitable charges and estate contracts.

Can a beneficiary’s interest under a trust of land be protected by notice?

No.

What are the two types of notice?

Agreed notice and unilateral notice.

What is an agreed notice?

One entered with proprietor consent or because the Land Registry is satisfied of validity.

What is a unilateral notice?

One entered without proprietor consent and without Land Registry verifying the claim.

What triggers compulsory first registration of unregistered land?

A qualifying dealing with the land.

Who registers unregistered land after completion?

The buyer’s solicitor.

What should happen if land should already have been compulsorily registered?

The buyer should require the seller to register title at the seller’s expense before proceeding.

What key compulsory-registration date applies to transfers for value?

1 December 1990.

What key compulsory-registration date applies to gifts?

1 April 1998.

How is title to unregistered land usually presented?

Through an epitome of title listing the relevant title deeds and documents.

Why can investigating unregistered title be more complex?

Ownership, extent and rights may be spread across numerous deeds.

What documents should normally be available for unregistered land?

Originals of all relevant title deeds and documents.

What must the seller’s solicitor do when deducing unregistered title?

Examine the deeds, identify relevant documents and list them in an epitome of title.

What is the root of title?

The deed relied upon as proving title to the property.

Which provision governs the root of title?

s 44 Law of Property Act 1925.

What are the four requirements of a good root of title?

15+ years old; deals with legal and beneficial title; adequately describes the land; casts no doubt on title.

How old must a good root of title normally be?

More than 15 years old.

Why is a sale conveyance or legal mortgage preferable as a root of title?

It suggests title was investigated before that transaction.

Must a good root of title deal with both legal and beneficial ownership?

Yes.

Is a document dealing only with bare legal title a good root?

No.

What must a good root of title show about the land?

Its extent must be adequately described.

What might make a purported root cast doubt on title?

E.g. execution under a power of attorney where its validity is unclear.

What is the chain of title?

The sequence of deeds linking the root of title to the present seller.

Which deeds normally need to appear in the epitome?

The root and subsequent deeds forming the chain to the seller.

When might pre-root deeds need to be included?

If the root refers to covenants or easements contained in them.

What document is needed where a deed was executed under a power of attorney?

The relevant power of attorney.

What document proves transmission of title by survivorship?

The deceased co-owner’s death certificate.

What documents prove transmission by will or intestacy?

Grant of representation and an assent.

Should mortgages created after the root be included in the epitome?

Yes, even if discharged.

Which documents generally need not form part of unregistered title?

Documents affecting only beneficial interests, expired leases and Land Charges searches.

Do planning permissions and old local searches form part of title?

No, although they may still be relevant.