2 - Title Investigation Registered Land Flashcards
Which three types of register comprise the Official Copies of the Register?
- Property Register: Describes the property and any rights benefiting the property (e.g., covenants or easements).
- Proprietorship Register: Gives the registered proprietor’s (owner’s) name and address, and the class of title and entires affecting ownership.
- Charges Register: Lists rights burdening the property (e.g., mortgage, covenants, easements and leases).
What is a class of title?
Definition: Indicates how satisfied the Land Registry is with the proof of ownership.
Importance: Affects the level of guarantee and compensation provided by the Land Registry.
What matters appear on the proprietorship register?
- Class of title
- Registered proprietor
- Restrictions
- Indemnity covenants
What are the different classes of title?
Title Absolute: The best class, indicating no issues; the proprietor has fully satisfied the Land Registry.
Qualified Title: Indicates a specific defect in the title (e.g., missing deed).
**Possessory Title: **Granted when the proprietor has physical possession but lacks title deeds or is claiming through adverse possession.
Good Leasehold Title: Granted when the leaseholder cannot provide evidence of the landlord’s title; often upgradeable if the landlord’s title has since been registered
What are the issues with qualified, possessory, and good leasehold titles which the buyer’s solicitor must action?
Qualified Title: The solicitor should report it to the client, check mortgage lender’s requirements, consider title indemnity insurance, and explore upgrading to title absolute.
Possessory Title: The solicitor should report it to the client, check mortgage lender’s requirements, consider title indemnity insurance, and explore upgrading if documents are located.
Good Leasehold Title: The solicitor should report it to the client, check mortgage lender’s requirements, consider title indemnity insurance, and explore upgrading if the landlord’s title is registered.
Who is usually the registered proprietor and what are the exceptions to this?
The registered proprietor is typically the seller, which may include:
- An individual
- A company
- A limited liability partnership (LLP)
- A combination of up to four legal persons
Exceptions: The seller may be an executor of a deceased person’s estate.
What details are recorded for different types of registered proprietors and how should these be verified?
- Individual: Full name and address for service (ie, where correspondence and notices regarding the property should be sent).
- Limited Liability Partnership (LLP): Name, number, and registered office address; solicitor to verify with Companies House.
- Company: Name, company number, and registered office address; solicitor verify to with Companies House.
- Co-owners: All co-owners generally must sign the contract and execute the purchase deed.
What other matters might appear on the proprietorship register?
- Price Paid or Value: Recorded if the land was acquired on or after 1 April 2000.
- Indemnity Covenant: Recorded if given to observe positive covenants.
- Restrictions: Any restrictions on the registered proprietor’s right to sell the property.
What is the seller’s solicitor’s role pre-exchange in deducing registered title?
This takes place early on in the pre-exchange stage.
- The seller deduces title by gathering title documents and ensuring that they are entitled to sell the property.
- Answers pre-contract enquiries raised by the buyer.
- Prepares the draft contract.
What steps must the buyer’s solicitor take pre-exchange in investigating registered title?
- Investigates title by checking official copies of the Land Registry and related documents.
- Orders and reviews pre-contract searches.
- Raises pre-contract enquiries with the seller.
- Reports on title to the buyer.
- Handles the buyer’s mortgage.
- Approves the draft contract.
What is the process of deducing registered title?
Deducing title is the process where the seller proves ownership of the property to the buyer, showing they have the legal right to sell.
The seller’s solicitor collects title documents, confirms the seller’s right to sell, and sends them to the buyer’s solicitor.
Title documents include:
- Land Registry official copies of the register.
- Land Registry title plan.
- Copies of any documents referred to in the official copies where the relevant rights have not been fully extracted.
What are the components of the Land Registry official copies in registered title?
A. Property Register: Describes the property and rights benefiting it, such as covenants or easements.
B. Proprietorship Register: Lists the registered proprietor’s name and address, class of title, and entries affecting ownership.
C. Charges Register: Details rights burdening the property, like mortgages, covenants, easements, and leases.
What is the difference between deducing title and investigating title?
- The seller’s solicitor deduces title by proving ownership and sending documents to the buyer’s solicitor.
- The buyer’s solicitor investigates title by verifying the seller’s right to sell, reviewing documents, and identifying any defects or issues.
What is on the Property Register?
- Property description: States whether the property is freehold or leasehold. Describes the property by address and reference to the title plan (usually ‘edged red’).
- **Title plan: ** The buyer’s solicitor should send the buyer a copy to confirm it matches the buyer’s understanding of the property’s size and location.
- Rights benefiting the property: Listed in the Property Register, either extracted (full text shown) or referred to in a filed document. The seller’s solicitor must provide copies of filed documents.
What is the difference between an extracted right and a right in a filed document?
Extracted Right: The full text of the right is shown in the Property Register. For example:
- “The land has the benefit of a right of way on foot only over land coloured blue on the filed plan. (01.09.1969)”
- No need to refer to another document.
Filed Document Right: The right is referred to, but not fully extracted. For example:
- “The land has the benefit of the right contained in a deed dated 13 February 1955. NOTE: Copy filed.”
- Requires referring to a separate document, which should be provided by the seller’s solicitor.
What are common rights found in the Property Register?
- Right of way: Needed if the property doesn’t have direct access to a public highway and must cross private land.
- Rights to run services: Covers the right for gas, water, drains, electrical cables, etc., to pass over neighboring land if needed.
- Right of light: Right to enjoy natural light passing over another’s land into a property’s window. This can be granted by deed or acquired by prescription (after 20 years of uninterrupted use).
- Excluded rights: Rights not included in the sale, such as mineral rights under the land, which should be reported but usually aren’t a major concern.
What are the four issues to consider when a property has the benefit of a right of way?
- Registration of the burden: The benefit must be registered on the Property Register. The burden (on the land over which the right passes) should also be registered on the charges register of the servient land to be enforceable. If it is not there, the sellers must register it.
- Adequacy: Ensure the right is adequate for the intended use (e.g., a right of way for cars is unsuitable if lorries are needed) - a surveyor can check this. Physical adequacy, such as width for large vehicles, should also be checked. If the Right of Way is not adequate, the buyer can approach the person who owns the land on which the easement is based to request a deed of variation which the solicitors will negotiate (terms, price etc).
- Maintenance: At common law, users of a right of way must contribute to its maintenance. Inspection and enquiries (CPSE’s, the seller is obliged to give us up to three years worth of information) should determine potential costs for the buyer.
- Adoption: An adopted highway is maintained by the local authority – the process by which a private road is adopted by a local authority. If a private road is adopted, then the owners of properties that face on to the private road (‘frontagers’) are required to pay the costs of bringing the road up to adoptable standard.
What is co-ownership?
Co-ownership occurs when a property is owned by more than one person.
A trust of land is created, often through a declaration of trust in the TR1 form, which informs the Land Registry how co-owners wish to hold the beneficial title.
The legal title is always held by co-owners as joint tenants. The beneficial title can be held either as joint tenants or tenants in common.
How do you check how the beneficial interest in land is held?
- No restriction on the proprietorship register: Assume the co-owners hold the beneficial title as joint tenants.
- Tenancy in common restriction on the proprietorship register: Assume the co-owners hold as tenants in common. Verify it is a tenancy in common restriction, not another type (e.g., a mortgage-related restriction). Note that co-owners can change their beneficial interest type (from joint tenants to tenants in common and vice versa) at any time.
What is a ‘tenants in common’ restriction?
A ‘tenants in common’ restriction prevents the Land Registry from registering certain dealings (e.g., sale by a sole owner, mortgaging) unless the terms of the restriction are complied with.
This ensures that beneficial interests are properly addressed before registration.
How should you interpret a tenancy in common restriction on the proprietorship register?
If a tenancy in common restriction is present:
- Assume the co-owners hold the beneficial interest as tenants in common.
- Ensure it is a specific tenancy in common restriction, not another type.
- Recognise that co-owners can change their beneficial interest type at any time.
What happens to the legal title when a joint proprietor dies?
The right of survivorship applies, meaning the deceased joint tenant’s interest automatically passes to the remaining co-owner(s).
The surviving joint proprietor takes the legal title to the property, and the Land Registry will register them as the sole legal owner.
If there is a tenancy in common restriction, it remains until the surviving owner proves full beneficial entitlement.
What happens to the beneficial title when a joint tenant dies?
The right of survivorship applies. The surviving joint tenant automatically takes the deceased’s beneficial interest.
The Land Registry will register the surviving joint tenant as the sole legal owner, and there should be no restriction affecting the beneficial title.
What happens to the beneficial title when a tenant in common dies?
The right of survivorship does not apply. The surviving tenant in common only inherits their share.
The deceased’s share passes to their beneficiaries under their will or intestacy rules. The property itself is not physically divided, but there is a distinct share in the property.
What are the implications for title investigation when a co-owner dies?
- The buyer’s solicitor must ensure both legal and beneficial titles are properly transferred.
- All co-owners should sign the contract and execute the transfer deed if they are living.
- A surviving beneficial joint tenant must sign and provide the deceased’s death certificate.
- A surviving beneficial tenant in common must appoint a second trustee (often their solicitor) to sign and execute the transfer deed and provide the deceased’s death certificate.
- The ‘tenants in common’ restriction requires that the property is transferred by at least two trustees to overreach the beneficial interests and ensure the buyer takes the property free from any beneficial claims. The second trustee helps in complying with this requirement and ensuring the transfer is valid.