Chapter 2: Titled Investigation of Registered Land

Question 1

1 Deducing and investigating registered title

Answer 1

This section focuses on deducing and investigating title, which takes place early on in the preexchange stage

Question 2

1.1 Deducing registered title

Answer 2

The seller’s solicitor gets together the title documents, checks them to ensure that the seller is entitled to sell the property, and sends them to the buyer’s solicitor. The title documents are:
(a) Land Registry official copies of the register
(b) Land Registry title plan
(c) Copies of any documents referred to, but not already extracted in the official copies of the register

Question 3

Deducing title:

Answer 3

This means the process of proving ownership to a would-be buyer. In this context, title is used in its narrower sense meaning proof of ownership. (The wider sense of title
is to cover all legal issues that a buyer’s solicitor investigates.)

Question 4

1.1.1 Official copies

1.2 Investigating title

Answer 4

The buyer’s solicitor investigates registered title by checking the Land Registry official copies, title plan and other documents referred to on the register. The aim is to:
* check that the seller has the legal right to sell the property
* ensure the property is adequate for the buyer’s intended use
* ensure that there are no title defects that could affect the value of the property or the ability to sell in future

Question 5

Remember that:

Answer 5

• The seller’s solicitor deduces title.
• The buyer’s solicitor investigates title.

Question 6

1.3 Summary

Answer 6

• The seller’s solicitor deduces title, and the buyer’s solicitor investigates title. This process usually happens early on in the pre-exchange stage.
• Land Registry title is evidenced by the official copies of the register, the title plan and copies of any documents referred to in the official copies
• Land Registry official copies comprise three registers within one document

Question 7

1.3 Summary

Answer 7

• The property register is concerned with the property, the proprietorship register with ownership and the charges register with rights burdening the property
• The buyer’s solicitor investigates the title to ensure that the seller has the right to sell, that the title is adequate for the buyer’s purposes, and that there are no title defects that could affect the value or ability to sell

Question 8

2 The property register

Answer 8

The first of the three registers is the property register.

Question 9

2.1 Content of the property register
2.1.1 Property description

Answer 9

As might be expected, the property register is firstly concerned with setting out what the property
comprises, including:
* Whether the property is freehold or leasehold.
* A description of the property by its address and reference to the title plan (usually ‘edged
red’). The buyer’s solicitor should always send the buyer a copy of the title plan so that the buyer can
confirm it agrees with their understanding of the size and location of the land they are buying.

Question 10

2.1.2 Rights benefiting the property

Answer 10

The property register will also include rights that benefit the property, such as the benefit of easements or covenants.
They may be set out in one of two ways:
* They may be extracted, meaning that all the relevant text is shown, and there is no need to refer to the document itself.
* Alternatively, the property register may refer to a bundle of rights contained in a document which is filed. The seller’s solicitor should provide a copy of any filed documents (either from the pre-registration deeds or from the Land Registry).

Question 11

2.2 Comparison of extracted right and filed document
2.2.1 Right of way extracted on the register

Answer 11

2. (01.09.1969) The land has the benefit of the following right contained in a deed dated 13
   February 1955: a right of way on foot only over the land coloured blue on the filed plan.
   Note. The land coloured blue is shown hatched black on the filed plan

Question 12

2.2.2 Right of way contained in a filed document

Answer 12

2. (01.09.1969) The land has the benefit of the right contained in a deed dated 13 February 1955.
   Note. Copy filed.

Question 13

2.3 Rights in the Property register - examples
None

Answer 13

Sometimes there may be no rights. This isn’t necessarily a problem. Check the title plan and your search results; for example, that the land has access from a public highway without the need for a private right of way.

Question 14

Right of way

Answer 14

This will be needed if the property does not abut the public highway without crossing other private land. In old houses, there is sometimes a right of way on foot to a communal outside toilet!

Question 15

Rights to run services
(‘service media’)

Answer 15

This right may cover gas or water pipes, drains, electrical cables,
optic fibre cables, etc may need to run across neighbouring land.
They will not be necessary if the connection is made direct to the
main pipe, cable etc under the highway.

Question 16

Right of light

Answer 16

This is the right to enjoy the natural light which passes over someone else’s land and into, say, a window. This right can be granted expressly by deed or acquired by prescription (enjoyed without interruption for 20 years).

Question 17

Excluded rights

Answer 17

The property register will also refer to rights that are not included.
A common example is an exclusion of the minerals underneath the
land. This should be reported to the buyer but is not usually a
serious issue.

Question 18

2.4 Further action on rights of way

Answer 18

If the property has the benefit of a right of way, then there are four issues that must be considered:
* registration of the burden
* adequacy
* maintenance
* adoption

Question 19

2.4.1 Registration of the burden

Answer 19

We know that the benefit of the right of way is registered if it appears on the property register. To be enforceable, the burden must also be registered against the land over which the right of way passes (the servient land).

Question 20

2.4.2 Adequacy

Answer 20

Adequacy may be legal or physical. For example, a right of way by car only would not suitable for
a warehouse that requires lorry deliveries. On the other hand, a right of way for all vehicles does not help if it is too narrow to be negotiated
by a lorry, so inspection is advisable

Question 21

2.4.3 Maintenance

Answer 21

Even if the right does not say so, a person using a right of way is obliged in common law to contribute towards its maintenance. Inspection and enquiries should assess how this is likely to affect the buyer.

Question 22

2.4.4 Adoption

Answer 22

An adopted highway is a public highway maintainable by the local authority at its expense. If a private road is adopted, then the frontagers are required to pay the costs of bringing the road up to adoptable standard.

Question 23

2.5 Summary

Answer 23

• The property register describes the property and rights benefiting it
• There are different kinds of rights that may be listed
• Further investigation may be required as to registration of the burden of the covenant, adequacy, maintenance and adoption

Question 24

3 The proprietorship register

Answer 24

The proprietorship provides the class of title, details of the legal owner of the property, and whether there are any restrictions on their ownership.

Question 25

3.1 Class of title

Answer 25

The Land Registry gives each registered title a class of title.
The class of title indicates how satisfied the Land Registry with the registered proprietor’s proof of
ownership to the property.
The Land Registry guarantees its titles with compensation, so the class of title is important. The class of title appears as a subheading of the proprietorship register, not as a numbered entry.

Question 26

3.2 Different classes of title
3.2.1 Title absolute (freehold or leasehold)

Answer 26

Title absolute is the best and most common class of title. It indicates no issues – the proprietor has satisfied the Land Registry that it is the true and proper owner of the property

Question 27

3.2.2 Qualified title (freehold or leasehold)

Answer 27

Qualified title is where there is a specific defect in the title.
An example would be where a deed known to contain covenants or easements was missing on first
registration.

Question 28

3.2.3 Possessory title (freehold or leasehold)

Answer 28

Possessory title is granted when the registered proprietor has shown that they have physical possession of the property, but has no title deeds or is claiming through adverse possession
(‘squatters’ rights’)

Question 29

3.2.4 Good leasehold title (leasehold only)

Answer 29

Good leasehold title is granted when the leaseholder cannot provide evidence of the landlord’s
title to the land. It can often be upgraded easily if the landlord’s title has been registered since the grant of the lease.

Question 30

3.3 Following up issues with class of title

Answer 30

If the property has title absolute, then no further action need be taken.
If the property has qualified title, possessory title or good leasehold title, then the buyer’s solicitor:
* should report it to their client and explain what it means
* check the mortgage lenders’ requirements – they may not accept inferior title classes, or may
only accept them with certain conditions being met

Question 31

3.3 Following up issues with class of title

Answer 31

• consider and advise on obtaining title indemnity insurance to cover risks
• consider the possibility of upgrading to title absolute if, for example, missing documents can be located

Question 32

3.4 The registered proprietor

Answer 32

The seller’s name will usually appear as the registered proprietor. One exception would be where
the seller is the executor of a deceased person’s estate.

Question 33

Registered proprietor:

Answer 33

This is the person or persons named on the proprietorship register

Question 34

3.4.1 An individual

Answer 34

The proprietorship register will set out the individual’s full name and address for service (ie, where
correspondence and notices regarding the property should be sent).

Question 35

3.4.2 Company

Answer 35

The proprietorship register will set out the company name, company number and registered office
address. The buyer’s solicitor should verify these details with a Companies House search

Question 36

3.4.3 Limited liability partnership (LLP)

Answer 36

The proprietorship register will set out the LLP name, number and registered office address.
The buyer’s solicitor should verify these details with a Companies House search.

Question 37

3.4.4 Co-owners

Answer 37

A combination of individuals, LLPs or companies up to a maximum of four may be registered proprietors.
Generally, all co-owners will be required to sign the contract and execute the purchase deed.

Question 38

3.5 Other matters that appear on the proprietorship register

Answer 38

Other matters are also recorded on the proprietorship register:
* the price paid or stated value of the land if the seller acquired the land on or after 1 April 2000 (with limited exceptions)
* if the registered proprietor gave an indemnity covenant to the transferor on acquiring the property (to observe positive covenants), then it will appear as a numbered entry
* Any restrictions on the registered proprietor’s right to sell the property

Question 39

3.6 Summary

Answer 39

• The proprietorship is the second register (B) on the official copies
• It details the class of title, of which title absolute is best and most common
• Other titles will need reporting to the client and may cause issues with a lender
• Up to four individuals, companies or LLPs may be named as registered proprietors
• Other information included is the price paid or stated value, indemnity covenants to observe positive covenants and restrictions on the registered proprietor’s right to sell the property

Question 40

4 Proprietorship register – Co-ownership

Answer 40

Where a property is owned by more than one owner (joint owners) this is called ‘co-ownership’. A trust of land exists, which is often expressly created when the land is transferred by making a declaration of trust in the TR1 form. This declaration of trust panel informs the Land Registry how co-owners wish to hold the beneficial title.

Question 41

4 Proprietorship register – Co-ownership

Answer 41

The legal title is always held by co-owners as joint tenants.
The beneficial title can be held as joint tenants or as tenants in common.

Question 42

4.1 Checking how the beneficial interest is held

Answer 42

If co-owners have notified the Land Registry that they hold as beneficial tenants in common, then the Land Registry will add a restriction to the proprietorship register

Question 43

Restriction

Answer 43

Restriction: This entry prevents the Land Registry from registering certain dealings (eg sale by a sole owner, mortgaging) against the title unless the terms of the restriction are complied with.

Question 44

4.1 Checking how the beneficial interest is held

Answer 44

A restriction protecting the interests of beneficial tenants in common looks like this:
B: Proprietorship register
This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal.

Question 45

4.1 Checking how the beneficial interest is held

Answer 45

Title absolute
(a) (01.07.2005) PROPRIETOR(S): DEAN FISHER and TANYA FISHER of 22 Simpson Street,
Redminster, RD2 8QP
(b) (01.07.2005) RESTRICTION: no disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

Question 46

4.2 Checking how the beneficial interest is held
No restriction on the proprietorship register

Answer 46

You can assume that the co-owners hold jointly

Question 47

Tenancy in common restriction on the proprietorship register

Answer 47

You can assume that the co-owners hold as tenants in common, but be careful that you:
* check that it is a tenancy in common
restriction, and not another type (eg, a restriction imposed by a mortgage lender to prevent sales without the mortgage being discharged)

• are aware the co-owners may change the way that they hold the property and convert from beneficial joint tenants to beneficial tenants in common (and vice versa) at any time during their ownership

Question 48

4.3 Death of a legal joint tenant

Answer 48

By survivorship, the surviving joint proprietor takes the legal title to the property. The Land Registry will register them as the sole legal owner.
However, if there is a tenancy in common restriction, then the Land Registry will leave it in place unless the owner proves that they have become beneficially entitled to the whole of the property as well.

Question 49

4.4 Death of a beneficial joint tenant

Answer 49

By survivorship, the surviving joint tenant takes the beneficial title to the property. The Land Registry will register them as the sole legal owner, and there should be no restriction
against the register.

Question 50

4.5 Death of a beneficial tenant in common

Answer 50

The surviving joint proprietor/beneficial tenant in common only takes their share of the property. The other share passes to the deceased person’s beneficiaries under their will or the intestacy
rules. The building is not physically divided, but there is a distinct share in the property.

Question 51

4.6 Implications for buyer’s solicitor’s title investigation

Answer 51

The buyer’s solicitor needs to be able to satisfy the Land Registry that both legal title and beneficial title has passed to the buyer.
If all co-owners are living/in existence, then they should all be asked to sign the contract and
execute the transfer deed.
If a surviving beneficial joint tenant is selling the property, then they should be asked to sign the contract and execute the transfer deed.

Question 52

Providing a certified copy

Answer 52

They should also provide a certified copy of the deceased joint tenant’s death certificate.
If a surviving beneficial tenant in common is selling the property, then they will need to appoint a
second trustee (often their solicitor) to sign the contract and execute the transfer deed with them.
Again, they should also provide a certified copy of the deceased tenant in common’s death certificate.

Question 53

4.6 Implications for buyer’s solicitor’s title investigation

Answer 53

Why does the surviving tenant in common need a second trustee? Remember the wording of the
tenancy in common restriction: ‘No disposition by a sole proprietor…’
The buyer can take the property free from any beneficial interests provided:
* the property is transferred by at least two trustees
* the purchase price is paid in good faith

Question 54

Overreach

Answer 54

The buyer then overreaches the beneficial interests. The Land Registry restriction ensures that this happens.

Question 55

Overreaching:

Answer 55

This means the process of transferring the beneficial interests in land to the money that the buyer has paid. This means that the land is freed from beneficial interests, and the buyer does not need to worry.

Question 56

4.7 Summary

Answer 56

• Co-owners are always legal joint tenants
• Co-owners can hold as beneficial joint tenants or beneficial tenants in common
• Normally, all co-owners will be required to sign the contract and execute the transfer deed
• The buyer’s solicitor can rely upon the register to assume that the co-owners hold as beneficial
  joint tenants if there is no tenancy in common restriction, and as beneficial tenants in common
  if there is

Question 57

4.7 Summary

Answer 57

• If dealing with a surviving beneficial joint tenant, then the buyer’s solicitor needs to see a
  certified copy of the deceased joint tenant’s death certificate
• If dealing with a surviving beneficial tenant in common, then the buyer’s solicitor needs to see
  a certified copy of the deceased tenant in common’s death certificate and will also need a
  second trustee to be appointed

Question 58

5 The charges register and mortgages
5.1 Interests burdening the property
5.1.1 Mortgage in favour of a lender

Answer 58

Usually, an undertaking (a solicitor’s binding promise) is given on completion to discharge this so
that the buyer takes free of mortgage. We will look at mortgages in detail.

Question 59

5.1.2 Covenants (restrictive or positive)

Answer 59

Either restrictive or positive covenants may be listed in the charges register – the important point is that it is their burden, not the benefit. These should always be reported to the client, with advice on appropriate action. We will look at
covenants in detail.

Question 60

5.1.3 Easements

Answer 60

We looked at the benefit of easements in the property register – conversely, the land may be
subject to rights of way, rights of light, rights of service media (pipes, cables, etc). These should always be reported to the client.

Question 61

5.1.4 Leases

Answer 61

These would normally be expected from the agent’s property description, but should always be
reported, together with their terms.

Question 61

5.2 Mortgages

Answer 61

‘Small debts are like small gun shot; they are rattling around us on all sides and one can scarcely escape being wounded. Large debts are like cannons; they produce a loud noise, but are of little danger.’
Samuel Johnson
But for a property solicitor, forgetting to deal with them is not a good idea!

Question 62

5.2.1 Registration of mortgages

Answer 62

A legal mortgage must be created by deed, and (for registered property) entered in the charges register. This means that a buyer’s solicitor will be able to see from the charges register if the property is subject to a legal mortgage.

Registering the mortgage on the charges register means that whoever buys the property will take subject to the mortgage. However, the mortgage lender does not want to have to deal with a third party, and therefore will want the mortgage cleared before the property is transferred.

Question 63

5.2.1 Registration of mortgages

Answer 63

To prevent the property from being sold subject to mortgage, therefore, the lender will also require a restriction in the proprietorship register. This prevents the owner from selling the property without the lender’s consent. Historically, a legal mortgage involved a transfer of ownership to the lender, whereas a legal charge is a security interest only. Modern mortgages no longer involve a transfer of ownership,
and in practice the terms charge and mortgage are used loosely and interchangeably.

Question 64

5.2.2 Mortgage entry on the proprietorship register

Answer 64

The restriction will prevent the property being sold without the lender’s consent.
B: Proprietorship register
This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal.
Title absolute
(a) (01.07.2005) Proprietor(s): DEAN FISHER and TANYA FISHER of 22 Simpson Street, Redminster,
RD2 8QP
(b) (01.07.2005) RESTRICTION: Except under an order of the Registrar no disposition by the proprietor of the land is to be registered without the consent of the proprietor of the charge dated 17 June 2005 in favour of Redminster Building Society referred to in the Charges
Register.

Question 65

5.2.3 Mortgage entry on the charges register

Answer 65

Each mortgage usually takes two entries in the charges register. The first is the date of the mortgage, and the second is the name and address of the mortgagee.
C: Charges register
This register contains any charges and other matters that affect the land.
(a) (01.07.2005) REGISTERED CHARGE dated 17 June 2005 registered on 1 July 2005 to secure the monies including the further advances therein mentioned.
(b) (01.07.2005) Proprietor: Redminster Building Society of 28 High Street, Redminster RD6 9AR.

Question 66

5.2.4 Dealing with the mortgage

Answer 66

In almost all cases, the parties’ intention is for the property to be sold free of mortgage, but the
buyer needs to be certain that this will happen. This means:
(a) checking early on in enquiries that the seller will have sufficient funds to clear the mortgage
(b) ensuring that it is a term of the contract (before exchange!) that the mortgage will be redeemed on completion and
(c) obtaining an appropriate undertaking from the seller’s solicitor to redeem the mortgage from
the proceeds of sale on completion (we will return to this when considering completion)

Question 67

5.3 Summary

Answer 67

• The charges register may include mortgages, positive and restrictive covenants, easements, leases
• Mortgages are entered in the charges register
• The lender will usually also require a restriction in the proprietorship register
• The property is almost always intended to be sold free of mortgage, but the buyer’s solicitor needs to make sure that this is made a term of the contract, and that appropriate
  undertakings are secured on completion

Question 68

6 The charges register and covenants
6.1 Covenants appearing on the charges register

Answer 68

If covenants appear on the charges register, it means that the property has the burden of those covenants (if the property has the benefit of an rights granted relating to the covenant then they will appear on the property register). Covenants appearing on the charges register may be restrictive, positive or unknown.

Question 69

6.1 Covenants appearing on the charges register

Answer 69

From the buyer’s point of view, typical problems caused by covenants are:
* the existing use of the land is in breach of a covenant
* the buyer’s proposed use of the land would be a breach of covenant
We will look at the options available to a buyer at the end of this section

Question 70

6.1.1 Restrictive covenants

Answer 70

The detailed principles of how the burden and benefit of restrictive (and positive) covenants affect
successors in title is covered in Land Law. For conveyancing purposes, you can assume that restrictive covenants appearing in the charges register are binding on the property. Whether a covenant is restrictive is dependent upon its effect, not its wording. For example, a covenant ‘to use the property only as a residential dwelling’ is a restrictive covenant.

Question 71

6.1.1 Restrictive covenants

Answer 71

The example below shows a restrictive covenant that has been extracted on the register. It is not
necessary to see a copy of the document containing the covenant (the conveyance dated 13
February 1955).
C: Charges register
This register contains any charges and other matters that affect the land.

Question 72

6.1.1 Restrictive covenants

Answer 72

(a) (01.09.1969) A Conveyance of the land in this title dated 13 February 1955 made between Hersh Builders Limited its heirs executors administrators and assigns (‘Vendor’) and James Edwards (‘Purchaser’) contains a covenant with intent to bind the land on the part of the
Purchaser his heirs and assigns with the Vendor its heirs executors administrators and assigns not to make any external alterations whatsoever to the premises without the written consent of the Vendor.

Question 73

6.2 Positive covenants

Answer 73

Unlike with restrictive covenants, the appearance of positive covenants in the charges register does not necessarily mean that they are binding on the property. Again, whether a covenant is positive is dependent upon its effect, not its wording. For example, a covenant ‘not to allow a fence to fall into disrepair’ is a positive covenant as it requires time and money to be spent on maintaining the fence.

Question 74

6.2 Positive covenants

Answer 74

The first step, therefore, is to examine whether the positive covenant does affect the property, and this involves considering whether there is a chain of indemnity.
Indemnity covenant: In this context, this is a covenant given by a buyer to seller to observe the positive covenants.

Question 75

6.2 Positive covenants

Answer 75

Unlike with restrictive covenants, the appearance of positive covenants in the charges register does not necessarily mean that they are binding on the property.
Again, whether a covenant is positive is dependent upon its effect, not its wording. For example, a covenant ‘not to allow a fence to fall into disrepair’ is a positive covenant as it requires time and money to be spent on maintaining the fence. The first step, therefore, is to examine whether the positive covenant does affect the property, and this involves considering whether there is a chain of indemnity

Question 76

Indemnity covenant:

Answer 76

In this context, this is a covenant given by a buyer to seller to observe the positive covenants.

Question 77

6.2 Positive covenants

Answer 77

The example below shows a positive covenant that has been extracted on the register. It is not necessary to see a copy of the document containing the covenant (the conveyance dated 13 February 1955). Note that really the positive covenant is a personal covenant that does not bind the land.
However, in practice the Land Registry will enter positive covenants on the charges register

Question 78

6.2 Positive covenants

Answer 78

C: Charges register
This register contains any charges and other matters that affect the land.
(a) (1 September 1969) A Conveyance of the land in this title dated 13 February 1955 made between Hersh Builders Limited its heirs executors administrators and assigns (‘Vendor’) and James Edwards (‘Purchaser’) contains a covenant to build and maintain a fence or wall along
the northern boundary of the property.

Question 79

6.2.1 The chain of indemnity

Answer 79

This shows how the chain of indemnity works. The original owner gave the covenant, so if it is breached, the original owner would be sued by the covenantee.
The original owner sells the property to B. B gives the original owner an indemnity covenant. If the covenant is broken, then the original owner can sue B. B sells the property to C. C gives B an indemnity covenant. If the covenant is broken, then the original owner sues B, who, in turn, sues C.

Question 80

6.2.2 Form of indemnity covenant

Answer 80

The example below shows that the seller gave an indemnity covenant when they bought the property. They will therefore be bound by the positive covenant and will likely insist that the buyer enters into an indemnity covenant with them.
B: Proprietorship register
This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal.

Question 81

6.2.2 Form of indemnity covenant

Answer 81

Title absolute
(a) (1 July 2005) Proprietor(s): DEAN FISHER and TANYA FISHER of 22 Simpson Street, Redminster,
RD2 8QP.
….
(b) (1 July 2005) The Transfer to the Proprietors contains a covenant to observe and perform the covenants referred to in the charges register and of indemnity in respect thereof

Question 82

6.2.3 Break in the chain of indemnity

Answer 82

If at any point, the land has been transferred, and the seller has neglected to obtain an indemnity
covenant, the chain of indemnity has been broken. If there is a breach of covenant, then the original owner can still be sued, but the chain will only
go as far as the last person to give an indemnity covenant. An indemnity covenant will appear on the proprietorship register. If it doesn’t appear, then you can assume that the chain of indemnity has been broken, and the buyer should not provide an indemnity covenant.

Question 83

6.3 Unknown covenants

Answer 83

Unknown covenants could be positive or restrictive. If there are positive covenants, it is very unlikely (but not impossible) that a chain of indemnity exists. However, the buyer’s solicitor should assume that some of the unknown covenants are restrictive, and take appropriate action. Whether a covenant is restrictive is dependent upon its effect, not its wording. For example, a
covenant ‘to use the property only as a residential dwelling’ is a restrictive covenant.

Question 84

The example below shows an entry for unknown covenants.

Answer 84

C: Charges register
This register contains any charges and other matters that affect the land.
…
(a) (08.03.1952) A Conveyance of the land in this title dated 20 February 1929 made between
Stanley Clegg its heirs executors administrators and assigns (‘Vendor’) and Georgina Bartholomew (‘Purchaser’) contains covenants but neither the original conveyance nor a
certified copy or examined abstract thereof was produced on first registration.

Question 85

6.4 Buyer’s options for dealing with covenants

Answer 85

Having identified a covenant that causes a problem for the buyer, the buyer’s solicitor can advise
various options.

Question 86

6.4.1 Consent from person with benefit

Answer 86

One option is to approach the person with benefit (PWB) for consent to the breach of covenant. However, it may be difficult to identify and trace the PWB. The dominant land may have been divided over the lifetime of the covenant, meaning that there are numerous PWBs, making it even
more difficult. Even if a PWB can be identified, they may refuse to release the covenant or put a price on doing so that is higher than the seller or buyer is prepared to pay.

Question 87

6.4.2 Application to the Upper Tribunal (Lands Chamber)

Answer 87

If the covenant meets certain grounds, then an application can be made to the Upper Tribunal (Lands Chamber) to discharge the covenant. This is expensive and time consuming and rarely practical. For more detail, refer to your Land Law materials.

Question 88

6.4.3 Indemnity insurance

Answer 88

Where the land’s current use is in breach of the covenant, but no objection has been received, it is
simplest to obtain an indemnity insurance policy (usually at the seller’s expense).

Question 89

6.4.4 Which option?

Answer 89

It is usually more of a problem when the buyer’s proposed use would breach the covenant. It is then more difficult to get insurance, as the risk that an objection will be received is less ascertainable. Approaching the PWB may be an option, but insurance should be tried first, as insurers usually require that no contact has been made with the PWB.

Question 90

6.5 Summary

Answer 90

• The burden of covenants is shown on the charges register.
• You can assume that restrictive covenants shown on the register are binding.
• If there are positive covenants then these are only binding on the original covenantor unless there is a chain of indemnity.

Question 91

6.5 Summary

Answer 91

• If the buyer is buying from the original covenantor, or there is an unbroken chain of indemnity
  covenants, then the buyer will be required to give an indemnity covenant to the seller. Otherwise, the buyer should refuse.
• Unknown covenants are always an issue and should be reported, and appropriate insurance obtained
• Options for dealing with covenants include indemnity insurance, consent from the PWB and an application to the Upper Tribunal (Lands Chamber)