Investigation of Title – Comprehensive Notes (SQE1)
2.1 Introduction
Investigation of title = process of establishing who owns the property and whether there are any rights or rules that could affect the owner’s use and enjoyment of it.
In a sale, the buyer’s solicitor must first check:
that the seller owns the property and can sell it (ownership validity).
whether there are any burdens on the seller’s title that could deter a buyer (e.g., restrictive covenants, rights of way).
A lender (bank/building society) has similar concerns: ensure the property can be sold on the open market for at least the loan amount if the borrower defaults.
The seller’s solicitor’s goals:
anticipate problems with the title and deal with them in advance.
use findings to draft the first draft of the contract of sale.
Under a typical sale contract, the seller promises to sell the property “free from incumbrances” (i.e., third-party rights that bind the property) unless stated otherwise; thus, incumbrances must be identified and specified early.
2.2 The distinction between registered and unregistered land
Historical context: title used to be proven by parchment/paper deeds (unregistered).
Land Registration Act 1925 introduced a central Land Registry system in England and Wales.
Since 1 December 1990, registration on change of ownership has been compulsory in England and Wales; about 85% of land is currently registered.
Crown, aristocracy, and Church land remains largely unregistered because they were not sold and registration was not widely pursued voluntarily.
Government target: register the whole of England and Wales by 2030.
Practitioners should still encounter unregistered titles regularly, especially for long-held properties.
2.3 How to investigate title to freehold registered land
Sellers’ solicitor must obtain:
copies of the register of title (official copies).
a copy of the Land Registry title plan (the title plan).
Firms often have Land Registry accounts to order documents by phone/online and receive them the next day.
Some firms can request official copies electronically and view the register and title plans online.
2.3.1 The way in which the seller deduces title to the buyer in registered land
Deduction of title = the seller’s obligation to prove ownership to the buyer using documentary evidence.
Modern practice: deduct title before exchange of contracts; buyers are prevented from raising objections to title after exchange.
With registered land:
the seller should supply official copies to the buyer (at seller’s expense) that are less than six months old.
the buyer’s solicitor checks for overriding interests through various searches and enquiries (see Chapter 3).
2.3.2 How official copies are set out in registered land
Official copies show:
the title number and an “edition date” (date Land Registry last updated the title).
the “search from date” = the specific date of the official copies showing entries subsisting on the register at a given time.
Example data elements (illustrative):
Title: HA145672; Edition date: 16.09.2004; Search from date: 14.10.2024 at 16:05:23.
The official copies cover three registers:
(a) Property register
(b) Proprietorship register
(c) Charges register
The Property Register:
describes land by postal address and title plan; indicates if freehold or leasehold.
may show: easements/rights benefiting the land and any obligations attached; exclusions from the title (e.g., rights of light/air not included).
The Proprietorship Register:
identifies current owners and their address; identifies the class of title.
the State guarantees title; compensation may be payable if a defect is found.
three possible classes of title for freehold land:
(i) Absolute title: the standard, with legal estate vested and subject to entries, overriding interests, and minor interests of which trustees have notice.
(ii) Possessory title: owner is in possession but has lost the title deeds or is claiming through adverse possession; subject to all adverse interests existing at date of first registration.
(iii) Qualified title: defect identified by the Registrar that cannot be cured by grant of absolute title; upgrading may be possible but buyer may have concerns for loan/ sale.
the Proprietorship Register may show: price paid (if sold since 1 April 2000) and whether indemnity covenants were given; restrictions on the owner’s ability to sell.
since 13 October 2003, only two types of entries to protect third-party interests: notices and restrictions (cautions/inhibitions are rare but may appear on older records).
presence of a restriction indicates limitations on the proprietor’s ability to deal; restrictions can be permanent or time-limited, absolute or conditional.
an example of restrictions includes co-ownership restrictions and lender restrictions; restrictions can be created by court orders in litigation or family proceedings.
The Charges Register:
identifies incumbrances (covenants, easements, charges, leases, notices).
some incumbrances may not affect the buyer; others may require action.
Example: official copy for 10 Bladen Road, Warrington, Cheshire
includes Property Register (land description and rights), Proprietorship Register (class of title; owner; price; covenants/indemnities), and Charges Register (covenants, easements, mortgages, leases, third-party notices).
Note: official copies should be accompanied by a copy of the title plan (not reproduced here).
2.4 How to investigate title to freehold unregistered land
First step: determine whether the land is already registered or has a pending application for first registration.
Cautions against first registration can be lodged; the Land Registry can warn off a cautioner and allow time to establish rights before registration proceeds.
Checks can be done via an Index Map search (Form SIM) with a plan of the property.
If unregistered, title is proved by the title deeds.
Seller provides title deeds (usually before exchange). If selling the whole property, originals are handed over on completion; for part sales, originals stay with seller; certified copies are handed over on completion.
Upon completion, the buyer’s solicitor verifies the originals against the copies; this is called verification of title.
If the sale is of part, a memorandum of sale of part is marked on the original deed.
2.4.1 The way in which the seller deduces title to the buyer in unregistered land
Deducing title involves examining parchment/paper deeds used to transfer ownership (conveyances, mortgages, assents, deeds of gift, land charges searches).
The seller’s solicitor obtains deeds from the client or the mortgagee if the property is mortgaged.
The solicitor must determine whether any historical transaction should have triggered first registration; if so, the seller must register before proceeding; the buyer’s lender will require this remedy before completion.
The next task is to identify the ‘root of title’ — the document from which to begin the title investigation.
The root document is usually the most recent document that satisfies the requirements of a good root of title (see 2.4.2).
Older documents pre-dating the root can generally be ignored, with exceptions:
if the root refers back to an earlier third-party right, the buyer may need the earlier conveyance details.
The seller’s solicitor will prepare an epitome of title: a schedule of all documents from the root to the present day, with copies attached.
Example epitome layout (illustrative):
No. | Date | Description of Document | Evidence supplied | Original to be handed over at completion?
1) 25/05/1955 — Conveyance by (1) X to (2) Y — Photocopy — Yes
2) 25/05/1955 — Mortgage Deed between (1) Y and (2) Z — Photocopy — Yes
2.4.2 The requirements for a good root of title (s 44 LPA 1925)
A root of title must:
deal with or show who owns the entire interest (legal and equitable) being sold by the current owner
contain a recognisable description of the land
do nothing to cast doubt on the seller’s title
be at least years old
A conveyance on sale or a legal mortgage satisfying these requirements is generally the most acceptable root of title because it provides a double guarantee: the current buyer has a sound title for at least 15 years, and the root provides a reliable prior period for the seller’s title.
If neither a conveyance nor mortgage is available, a deed of gift or an assent can be used, but they do not provide the same double guarantee and are less satisfactory.
To determine whether a conveyance covers both legal and equitable interests, look for a paragraph beginning with the word “WHEREAS” stating that the Vendor is seised of the property for an estate in fee simple and the conveyance states the Vendor conveys the land as the beneficial owner unto the Purchaser.
2.4.3 Checking each title deed listed in the epitome of title
After root of title is identified, the root and subsequent deeds must be checked systematically for:
chain of ownership
description of the land
stamp duties
incumbrances
execution
land charges searches
The chain of ownership:
There should be an unbroken chain from the root owner to the present seller.
Every change of ownership should be evidenced by a deed; the transferee should match the next document in the chain.
If an owner has died, ownership vests in Personal Representatives (PRs); grant of probate identifying the PRs must be produced to confirm transfer in the chain.
Description of the land:
check that the land description is consistent across deeds; plans may not tally, especially when conveyances of part occurred.
Stamp duty:
Prior to December 2003, stamp duty (ad valorem) was payable on many conveyances; some exemptions/reliefs existed (e.g., certificates of value).
PD stamps were required for certain documents; SDLT replaced stamp duty on 3 December 2003.
Incumbrances:
check for easements and covenants; common wording for easements appears in conveyances as “EXCEPTING AND RESERVING” or “SUBJECT TO”.
Execution:
most documents must be executed as deeds under s. 52 of the Law of Property Act 1925; a deed must be in writing, clearly a deed, signed, attested, and delivered.
Land charges searches:
some incumbrances (notably restrictive covenants) bind unregistered land if they are registered as a land charge (land charges department, Plymouth).
for each estate owner listed in the epitome, a land charges search should cover the period of ownership (use K15 form; enter years of ownership rather than exact dates).
Practical note: if there is uncertainty about exact years of ownership, extend searches back to 1926, when the land charges system was introduced.
2.5 Issues that might be revealed in an investigation of title and the further action required
Investigation may reveal rights attached to the property (easements, etc.) or third-party rights that burden or benefit the land; buyers must be advised to consider these in line with intended use.
Not advising the buyer on rights/enforcements could expose the solicitor to negligence.
2.5.1 Easements
Most common easements: rights of way, drainage, and support.
In registered land, easements burdening the property appear in the Charges Register; may also appear in the Property Register if text is extracted from a conveyance.
In unregistered land, easements are usually created/reserved in the first operative paragraph of the conveyance, after the property description.
Halsall v Brizell [1957] governs maintenance contributions; consider whether the right of way described is sufficient for the intended use and whether the buyer must contribute to maintenance.
Action: obtain details of maintenance contributions, disputes, and have a surveyor assess the easement area for usability and cost implications.
2.5.2 Mines and minerals – exceptions and reservations
Historically, lands could be sold with mines/minerals excepted or reserved; in registered land this will be noted in the Property Register.
In unregistered land, such provisions appear in the conveyance itself.
A mining exception means the seller does not own mines/minerals beneath the surface; a reservation creates a profit à prendre in minerals.
These entries may indicate past mining activity and potential ground stability/subsidence concerns; inquiries should be made about exercisable rights and past exercise.
All interests in coal are now vested in the Mining Remediation Authority under the Coal Industry Act 1994; perform a mining search (see 3.3.2).
Regardless of registration status, perform an Index Map search (SIM) to check if mines/minerals are registered separately, aiding identification of owners/rights.
2.5.3 Declaration as to rights of light and air
If land is subdivided (Part A and Part B), a declaration may state that Part A does not enjoy rights of light/air over Part B.
Buyer should be advised of potential development nearby and whether the reservation could affect the buyer’s intended use (e.g., future building plans).
Example scenario provided in the text demonstrates how a declaration can impact development and planning considerations.
2.5.4 Co-ownership
Co-owners generally hold the legal title as joint tenants; equitable interests may be held as joint tenants or tenants in common.
In registered land, a restriction in the Proprietorship Register may state that no disposition by a sole proprietor can be registered except with court order, implying the equitable interest may be held as tenants in common.
In unregistered land, conveyance will specify whether equitable interests are held as joint tenants or tenants in common.
If selling when there is a missing co-owner, the missing co-owner must be brought into the contract if alive; if deceased, certified death certificates must be supplied.
Where equitable joint tenancy exists but the surviving co-owner may need to transfer, a second trustee may be appointed to overreach the equitable interest (the sale price is paid to at least two trustees on completion to effect overreaching).
When there are two or more legal owners remaining, no second trustee is required for overreaching.
2.5.5 Restrictive covenants
Restrictive covenants prevent certain uses of land and are binding on successors.
In registered land: appear in the Charges Register.
In unregistered land: appear in the conveyance, often after the first operative paragraph.
Post-1925 restrictive covenants will bind the buyer only if validly registered as a D(ii) land charge against the covenantor’s name.
Practical options to deal with restrictive covenants:
ask the seller to identify the current owner of the benefit and negotiate a release or one-off consent.
obtain a restrictive covenant insurance policy (cost-effective in many cases).
apply to the Upper Tribunal (Lands Chamber) for modification or discharge under s. 84 LPA 1925 on grounds of obsolescence or lack of practical benefit.
These options may be mutually exclusive; insurers may not be available where there is active negotiation with the beneficiary party.
2.5.6 Positive covenants
Positive covenants require the covenantor to perform works or incur expenditure; in registered land they appear in the Charges Register; in unregistered land they appear in the conveyance.
A positive covenant binds the original covenantor, but generally not successors (the burden does not run with the land).
Practically, a chain of indemnity covenants is often created when the seller sells and requires the buyer to indemnify the seller for breaches of the positive covenant.
Check for an indemnity covenant in the transfer; this creates a contractual obligation from buyer to seller if the covenant is breached.
Example provided shows an indemnity covenant running to protect the seller’s interests when the buyer inherits the covenant.
If an indemnity is required, ensure contract provisions require the buyer to observe and maintain the covenants and obtain appropriate surveys to assess costs.
2.5.7 Unknown covenants
Sometimes covenants exist but details are unknown due to lost deeds.
In registered land, the Charges Register may indicate that details were not available at first registration.
In unregistered land, covenants may be referenced in an earlier conveyance but the original grant/document is not produced.
Practical approach: assume covenants are restrictive and binding; consider options in 2.5.5 (release, insurance, modification) and disclose accordingly in the contract.
Indemnity insurance is a common, cost-effective remedy when the details are unknown or difficult to obtain.
2.5.8 Mortgages
Mortgages are usually resolved at completion; the seller intends to discharge their mortgage with sale proceeds.
In registered land: the Charges Register will show the mortgage entry and lender details; may also include a restriction requiring consent to disposition by the mortgagee.
In unregistered land: mortgage appears as a title deed in the epitome; discharged mortgages show a vacating receipt (e.g., “NATIONAL MIDLAND BANK LIMITED hereby acknowledges …”).
If a mortgage subsists, the contract should require the seller to discharge the mortgage on completion and the buyer should not take subject to it; the seller should undertake to discharge the mortgage on completion (see 4.4.1 and 5.5).
2.5.9 Leases
Leases affecting a freehold property can be material depending on intended use.
In registered land, leases over seven years must be registered in their own right with a separate title number; such leases are protected and may appear as notices in the Charges Register.
If a lease over seven years is not registered, it may still bind the buyer if the leaseholder is in actual occupation and can qualify as an overriding interest.
In unregistered land, a legal lease (other than a parol lease for three years or less) is usually created by deed and appears as a title deed in the epitome.
If a lease is discovered, ensure terms are compatible with the buyer’s intended use; report to buyer; consider whether the lease is compatible with vacant possession or rental income.
2.5.10 Notices (registered land only)
A notice records a burden of an interest affecting a registered estate or charge and can be agreed or unilateral.
The notice itself does not guarantee validity or existence of the interest; it protects priority against subsequent interests.
Example: unilateral notice dated 22.01.2015 relating to an agreement (15 Oct 2014) with a beneficiary named.
Practical steps:
ascertain what the unilateral notice relates to.
walk away or insist the seller cancels the notice before exchange if it relates to a valid, ongoing interest (e.g., contract, covenants, or lease).
2.5.11 Home rights
Home rights are statutory rights under the Family Law Act 1996 for a non-owning spouse or civil partner to occupy the matrimonial home.
Home rights are not interests in land per se.
In registered land, a home right binds if protected by a notice in the Charges Register by the time the transfer is registered.
In unregistered land, a home right must be protected as a Class F land charge to bind a buyer.
If a home right is discovered, the seller should obtain a release from the occupier and agreement to vacate by completion; this is usually handled in the contract (see 4.5).
Summary
Investigation of title is undertaken by three parties: seller’s solicitor (anticipates title issues and drafts contract), buyer’s solicitor (checks seller can sell and identifies defects/encumbrances), lender’s solicitor (assesses value/loan risk).
Deduction of title = showing evidence of the seller’s right to sell; generally done before exchange.
For registered land, official copies and a title plan are provided; for unregistered land, an epitome (or abstract) is used.
The epitome should include a good root of title (per s. of the Law of Property Act 1925) and a chronological list of documents with copies.
In both regimes, identify and address restrictions and encumbrances that could affect the buyer or lender.
Sample questions
Question 2
Scenario: A husband and wife are registered proprietors of a freehold property. The husband died six months ago and the wife is selling. The Proprietorship Register contains a restriction: "no disposition by a sole proprietor of the land (not being a trust corporation) under which capital money arises is to be registered except under an order of the registrar or of the Court."
What is the best advice to the buyer as to whether the wife can sell on her own?
Options:
A) The wife is the sole legal owner and can sell as joint tenants.
B) The wife is the sole legal and equitable owner and can sell as joint tenants.
C) The wife needs to appoint another person to act as a legal owner alongside her.
D) The wife cannot sell until probate has been granted and she can show the equitable interest transferred by assent.
E) It is safe to buy from the wife if provided a death certificate.
Answer: Option A is incorrect due to survivorship and restriction context; Option B is the best interpretation of the text? The transcript states: “Answer Option A is correct.” However, the accompanying explanation says that Option B is not the best because the restriction indicates potential tenancy in common for equitable title; The provided solution actually marks Option B as not the best and Option A as correct for this question, with discussion of roots and survivorship. The correct choice per the transcript is A.
Key takeaway: Root of title timing and survivorship matter; the restriction suggests joint tenancy in the legal title, but the equitable title may be held differently, requiring careful review of the restriction and potential need for probate/assent if needed to meet the restriction.
Question 1
Scenario: For an unregistered title, which document is the best candidate for a good root of title?
Options:
A) Conveyance dated 10 August 1982
B) Mortgage dated 10 August 1982
C) Deed of Gift dated 25 December 1990
D) Grant of Probate dated 30 July 2019
E) Assent dated 8 August 2019
Answer: Option C (Deed of Gift) is considered the best root of title in these circumstances due to its age and structure, but it typically offers a weaker double guarantee than a conveyance or a mortgage.
Rationale: The Deed of Gift may predate other events but often lacks the value-for-money guarantee that accompanies conveyances or mortgages, thus it is not ideal for a root in many scenarios; however, the provided solution indicates C as best in the given context.
Question 3
Scenario: Buyer of a registered freehold property discovers a covenant not to use for commercial purposes, created in 2015 for the benefit of the district council. Buyer wants to run a cake shop.
Options:
A) Withdraw immediately
B) Proceed; district council unlikely to take action
C) Do not exchange until covenant modified/discharged by the Upper Tribunal (Lands Chamber)
D) Obtain restrictive covenant insurance for the breach
E) Ask seller to approach district council for release/consent
Note: The transcript does not provide a final answer for Q3.
Practical approach (based on typical practice): assess enforceability and likelihood of consent or modification; consider insurance as a possible remedy; negotiate with seller to obtain consent or release if feasible; in some cases, formal Tribunal relief may be pursued if the covenant is old, lacks practical benefit, and there is a strong case for modification.
Connections to broader principles:
The importance of accurate root of title and documentary evidence to establish title history and enforceability.
The role of cautions, notices, restrictions, and covenants in pricing, financing, and risk assessment.
The need for clear contractual provisions to address potential encumbrances, indemnities, and lender requirements.
Real-world relevance to client advice, risk management, and ethical duties to avoid negligent misstatements or omissions.
Ethical, philosophical, or practical implications:
Balancing client goals (e.g., business use) against existing restrictions and rights of third parties.
The duty to disclose known defects or burdens to the buyer and to manage expectations realistically.
Commercial considerations in insurance and cost-benefit analyses when dealing with unknown covenants or potential restrictive covenants.
Key terms and concepts to remember:
Deduction of title, root of title, epitome of title, abstract of title, and verification of title.
Land Registration Act 2002 (s. 67 admissibility of copies as evidence).
LPA 1925, especially s. 44 (root of title requirements) and s. 52 (deeds execution).
Classes of title: Absolute, Possessory, and Qualified.
SDLT replacing stamp duty on 3 December 2003.
Halsall v Brizell (1957) – rule on cost sharing for easements.
Indemnity covenants and chains of indemnity.
References and passages to remember
Investigation of title = concept, process, and roles of seller/buyer/lender’s solicitors.
Registration status landscape in England & Wales and future targets (2030).
Official copies: Property Register, Proprietorship Register, and Charges Register; search-from date concept; edition date concept.
Root of title criteria: LPA 1925; at least 15 years old; covers legal and equitable interest; recognisable description; not clouded by doubts.
Methods to deal with common issues: releases, covenants insurance, Tribunals, indemnities, and careful drafting in contracts.