Chapter 3: Title Investigation (Unregistered Land)

Question 1

1 Unregistered land – deducing title

Answer 1

Although most land that you will come across in practice is registered, unregistered land will crop up from time to time. It is important, therefore, to understand how to deduce and investigate title to unregistered land. Unregistered conveyancing is more complicated, as it involves dealing with more documents. The basic principles, however, are not complicated.

Question 2

1.1 Compulsory first registration

Answer 2

Compulsory first registration is only triggered on a dealing with the property. Land that is not being sold, given away or mortgaged may remain unregistered. An example
would be an elderly couple who bought a house before the relevant compulsory registration date
and have never moved. Compulsory first registration was imposed in phases by area.

Question 3

1.1 Compulsory first registration

Answer 3

The first area was Eastbourne in 1926, and the remaining areas were made subject to compulsory
first registration in 1990 for sales and 1998 for gifts. On any sale or gift of property now, unregistered land must be registered. The buyer’s solicitor investigates the unregistered title and is responsible for registering the buyer’s title after completion

Question 4

1.1 Compulsory first registration

Answer 4

If a transaction has taken place after the relevant date for compulsory first registration, then the buyer’s solicitor should insist that the seller register their title at their expense before proceeding

Question 5

1.2 Comparison of registered title and unregistered title
Title shown by official copies and title plan

Answer 5

Title shown by an epitome of title (a schedule of title deeds and documents accompanied by copies of them)

Question 6

Official copies neatly categorise property, proprietorship and charges

Answer 6

Property description, benefit and burden of rights, and ownership may be distributed amongst multiple documents

Question 7

Title plan shows extent of property

Answer 7

May need to trace back to first title document that defines land (subsequent documents may define by reference to earlier documents)

Question 8

Other deeds and documents extracted on the official copies or filed at the Land Registry

Answer 8

Should have originals of all relevant deeds and documents – if any missing, may cause issues.

Question 9

1.3 Deducing unregistered title

Answer 9

As with registered land, the seller’s solicitor deduces title. Rather than simply ordering Land Registry documents, however, this means examining the bundle of deeds and documents for the property. The deeds and documents may be held by the owner, or by their mortgage lender if they have outstanding borrowing.

Question 10

1.3 Deducing unregistered title

Answer 10

The seller’s solicitor must identify which deeds are relevant, and list them in the epitome of title.
Copies of the listed documents are provided to the buyer’s solicitor, and the seller’s solicitor will typically undertake to provide the originals to the buyer’s solicitor on completion.
Although only the listed documents are needed, in practice, the seller’s solicitor will often send the entire bundle of deeds and documents to the buyer’s solicitor (as there is no reason to hold on to them). The most important document to identify is the root of title

Question 11

1.4 What makes a root of title?
1.4.1 What does it mean?

Answer 11

The root of title is the deed that is to be relied upon as proving the title.
More than one deed may qualify for this, but of the deeds that meet the requirements, the most recent is usually chosen. The requirements of a root of title are set out in section 44 of the Law of Property Act 1925

Question 12

1.4.2 The requirements:

Answer 12

A good root of title meets four requirements:
(a) must be dated more than 15 years ago
(b) deals with both the legal and beneficial title to the property
(c) adequately describes the extent of the land being conveyed
(d) does not cast doubt on the seller’s title

Question 13

Must be dated more than 15 years ago

Answer 13

As the date for compulsory first registration is over 15 years, this should always be the case. A sale conveyance or legal mortgage is preferable to a gift or assent, because there is an assumption that the title for that deed was investigated for 15 years, giving a total of 30 years’
title.

Question 14

Deals with both the legal and beneficial title to the property

Answer 14

If the conveyance is silent on this point, then beneficial title is assumed to pass with the legal title. A conveyance that deals with ‘bare legal title’ or ‘legal title only’ or a declaration of trust (which only deals with beneficial title) is not a good root of title.

Question 15

Adequately describes the land being conveyed

Answer 15

The conveyance will usually incorporate a scale plan.
Sometimes a plan is not needed if, for example, it is a residential address, and all the neighbouring houses have identical footprints, and the boundaries are clear.

Question 16

Does not cast doubt on the seller’s title

Answer 16

An example would be where the conveyance is executed under a power of attorney, and it is
unclear whether the power of attorney was still in force. This example would be dealt with by
producing the relevant power of attorney.

Question 17

1.5 The chain of title

Answer 17

The seller’s solicitor:
* identifies the root of title
* establishes a chain of title from that deed to the seller
In the above example, the seller’s solicitor:
* would include the root of title and Deeds 3 and 4 in the epitome of title
* would not include Deeds 1 and 2 in the epitome of title unless they contain covenants or easements that are referred to in the root of title

Question 18

1.6 Other documents to include

Answer 18

• The power of attorney under which the root of title or any deed in the chain of title has been executed
• For transfers of ownership by death, a death certificate if the property has passed by survivorship, or the grant of representation and an assent if the property has passed under a
  will or intestacy
• Any mortgages created after the root of title, even if discharged

Question 19

1.7 Documents that are not needed

Answer 19

• Documents that only affect the beneficial interest (eg, trust deeds)
• Expired leases
• Land Charges searches (but may be provided as they can help the buyer’s solicitor)
• The deeds will often contain planning permissions, old local searches, correspondence,
  architects’ plans, etc – these may be relevant to replies to enquiries, but do not form part of the title

Question 20

1.8 Summary

Answer 20

• Unregistered title is generally more complex than registered title, but the main principles are straightforward
• The seller’s title deduces unregistered title by examining the deeds, identifying the root of title
  and a chain of ownership to the seller, and preparing an epitome of title

Question 21

1.8 Summary

Answer 21

• A root of title must be dated more than 15 years ago, deal with both legal and beneficial title, adequately describe the extent of the land and not cast doubt on the seller’s title
• A legal mortgage or sale conveyance is preferable as a root of title, as they will have involved an investigation of title of a further 15 years back in time
• The seller’s solicitor should identify which documents are needed, and which are not in the epitome of title

Question 22

2 Unregistered title – basic investigation

Answer 22

The buyer’s solicitor investigates unregistered title by checking the epitome of title and the copy
documents provided.
As with registered land, 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 23

2 Unregistered title – basic investigation

Answer 23

However, the buyer’s solicitor also has to check that the epitome of title will be sufficient to register the property with title absolute at the Land Registry. The buyer’s solicitor must check the root of title, the completeness of the chain of ownership (and the validity of the deeds within it), the extent of the land conveyed, and any rights benefiting or burdening the property.

Question 24

2.1 Check the land is not already registered!

Answer 24

Even before starting to investigate title, it is worth carrying out an index map search (SIM) of the property – this will reveal:
* any registered titles within the boundaries
* any pending applications for registration
* a caution against first registration, which would need to be investigated further, as a person lodging such a caution is likely claiming some kind of right against the property

Question 25

2.2 Checking the root of title

Answer 25

The buyer’s solicitor checks that the root of title meets the requirements (explained in the previous section):
(a) must be dated more than 15 years ago
(b) deals with both the legal and beneficial title to the property
(c) adequately describes the extent of the land being conveyed
(d) does not cast doubt on the seller’s title

Question 26

2.2 Checking the root of title

Answer 26

The buyer’s solicitor should also check that the date of the root of title does not fall after the relevant date of compulsory first registration. If this is the case, the seller should be asked to register the property before proceeding with the purchase.

Question 27

2.3 Checking the chain of title

Validly executed and stamped

Answer 27

The buyer’s solicitor checks that the chain of title is complete from the root of title to the seller’s
title. Usually, the buyer in one deed will be the seller in the next.
However, if the buyer has died, then the next deed may name the buyer’s personal representative
as seller (and a grant of representation would be needed).
The buyer’s solicitor checks that each deed forming part of the chain of title (including the root of
title itself) is validly executed and stamped.

Question 28

2.4 Validly executed

Answer 28

Deeds executed now must comply with the formalities under s1 of the Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA1989’)
However, most unregistered deeds were dated before LPMPA1989 came into force (31 July 1990) and their validity is subject to the common law formalities, which are more restrictive. The main difference introduced by LPMPA1989 is that deeds no longer required to be sealed.

Question 29

Sealing

Answer 29

This traditionally meant sealing the deed with red wax, but later on it became more common to use a red paper wafer. A company would stamp the seal with the company name.

Question 30

2.5 Stamping of conveyances

Answer 30

As well as being validly executed, each conveyance in the chain of title must have been correctly stamped, showing that the correct amount of ad valorem (ie proportionate to value) stamp duty has been paid. Property transactions for value were subject to stamp duty until 1 December 2003, when it was
replaced by Stamp Duty Land Tax (SDLT). All unregistered deeds, therefore, will have been subject
to stamp duty.

Question 31

2.5 Stamping of conveyances

Answer 31

It was called stamp duty because the conveyance is stamped with the value of the stamp duty paid. Conveyances that were not subject to stamp duty (eg, gifts) had to contain a certificate of value that confirmed this.
Conveyances dated after 1931 should also have a ‘Particulars Delivered’ stamp meaning that they have been presented to the stamp office.

Question 32

2.6 Checking conveyances for stamp duty

Answer 32

Each conveyance should be checked to ensure that it has:
* a certificate of value or be properly stamped with the ad valorem stamp duty
* have a Particulars Delivered stamp
If stamp duty is missing, then the buyer’s solicitor should insist that the seller pays the outstanding stamp duty and provides proof that this has been done.

Question 33

2.6 Checking conveyances for stamp duty

Answer 33

There will be interest and penalties for late payment of stamp duty.
As stamp duty rates and rules varied over the years, the buyer’s solicitor should research the requirements as to any questionable conveyance as at the relevant date

Question 34

2.7 Extent of the land conveyed

Answer 34

The root of title may include a scale plan, or it may refer to a plan in a pre-root document, in which case that document will need to be included in the epitome of title.
The extent of the land conveyed may become complicated if the conveyances in the chain of title
do not agree, or if the land has been divided at certain points.

Question 35

Residential addresses can be identified through a postal address

Answer 35

There is usually a plan, but occasionally residential addresses can be identified simply by their
postal address, and as long as this is clear (for example if neighbouring properties all have the same footprint) this may be acceptable to the Land Registry

Question 36

2.8 Summary

Answer 36

• Investigating unregistered title has similar aims to those for unregistered title, but in addition the buyer’s solicitor needs to ensure that the title will be registrable at the Land Registry.
• The buyer’s solicitor needs to check that there is a valid root of title and an uninterrupted chain of title up to the seller’s title
• The buyer’s solicitor needs to check that each conveyance or deed in the chain of title (including the root itself) is validly executed and stamped

Question 37

2.8 Summary

Answer 37

• Validly executed generally means that it is clear that the deed is a deed, and that it has been
  signed, sealed and delivered
• Validly stamped means that the document bears a Particulars Delivered stamp and either a
  certificate of title or the appropriate ad valorem stamps
• If a conveyance has not been properly executed or stamped, then the buyer’s solicitor should insist that the seller rectify this at their own expense.

Question 38

3 Unregistered title – title issues

Answer 38

Similar issues arise with unregistered land as with registered land as to co-ownership, mortgages and rights benefiting and burdening unregistered land. This section assumes that you have already completed the sections on investigating registered title, and looks at the differences in how these issues are dealt with in unregistered title.

Question 39

3.1 Co-ownership

Answer 39

As with registered title, co-ownership is not an issue that worries the buyer’s solicitor if all the coowners are all able to sign the contract and execute the purchase deed. However, if the seller is a surviving co-owner, then it is necessary to identify whether the seller has obtained the full beneficial title by co-ownership, or was a surviving beneficial tenant in common.

Question 40

3.1 Co-ownership

Answer 40

As with registered title, statute allows certain assumptions to be made as shown in the table below. The assumptions applying to co ownership of unregistered land are found in section 1 of the Law
of Property (Joint Tenants) Act 1964.

Question 41

3.1.1 Checking how the beneficial interest is held
Joint tenancy

Answer 41

You can assume that a seller who is a
surviving co-owner was a beneficial joint tenant (and therefore beneficially entitled by
survivorship) if:
(a) The conveyance from the seller to the buyer states that the seller is beneficially entitled to the whole of the property;

Question 42

Joint tenancy

Answer 42

(b) There is no memorandum of severance (ie a note signed by the joint tenants, or one of them) converting their interests into a
beneficial tenancy in common written on to, or attached to, the conveyance to the seller; and
(c) There is no bankruptcy order or
bankruptcy petition registered against the seller

Question 43

Tenancy in common

Answer 43

If the above conditions are not met, then the seller should be treated as a surviving tenant in common

Question 44

3.1.2 Dealing with the beneficial interest

Answer 44

If the seller is a surviving joint tenant, then the buyer’s solicitor should ask for certified copies of the deceased joint tenant’s death certificate. If the seller is a surviving tenant in common, then the buyer’s solicitor should ask for a second trustee to be appointed in the conveyance to the buyer to overreach the beneficial interest of the deceased tenant in common (or their estate)

Question 45

3.1.2 Dealing with the beneficial interest

Answer 45

You will notice that, having ascertained whether the seller is a surviving joint tenant or tenant in
common, the action taken is exactly the same as for registered title.

Question 46

3.2 Land charges

Answer 46

Some rights burdening the property will only bind registered land if they are registered at the Land Charges Department of the Land Registry. Don’t confuse the land charges register with the Land Registry registers! The Land Registry registers concern registered land and are catalogued by reference to a title
number. The land charges register is only relevant to property interests over unregistered titles and is
catalogued by the name of the individual or company.

Question 47

c(i)

Answer 47

puisne mortgage

Question 48

c(iv)

Answer 48

estate contract

Question 49

d(ii)

Answer 49

restrictive covenant

Question 50

d(iii)

Answer 50

equitable easement

Question 51

F

Answer 51

home right

Question 52

3.2.1 Land charges searches

Answer 52

An investigation of unregistered title is incomplete without appropriate searches of the Land Charges Department registers. Historically the search is requested on a Form K15. However, now it is more frequently carried out using the Land Registry’s online portal.

Question 53

3.2.1 Land charges searches

Answer 53

The search is by years of ownership and full name. Care needs to be taken over the possibility
that names are spelt differently or middle names omitted. The search should be carried out against each owner of the land in the chain of title.
If the beginning of ownership is unknown or predates 1926, then the period searched begins with 1926 (the year the register began).

Question 54

3.3 Mortgages

Answer 54

As with registered title, mortgages are usually not a matter for concern provided that the buyer’s solicitor ensures that the seller is to discharge them on completion. The process of doing so is similar to with registered conveyancing.

Question 55

3.3 Mortgages

Answer 55

The mortgage deed should be listed on the epitome of title. If the mortgage has been discharged
(repaid in full), then there should be a vacating receipt. If there is a vacating receipt, then the mortgage has been repaid and is not of concern.

Question 56

Vacating receipt:

Answer 56

This is wording written on to the mortgage deed, or attached to it,
confirming that the mortgage has been repaid, and signed on behalf of the lender.

Question 57

3.3 Mortgages

Answer 57

A first legal mortgage is not registrable as a land charge, because the mortgage lender will not
release the original deeds until the mortgage has been repaid. This offers sufficient protection.
However, a second or third mortgage (puisne mortgage) can be protected by a c(i) land charge, because the second or third mortgagee does not have this protection

Question 58

3.4 Rights benefiting and burdening unregistered land

Answer 58

As with registered land, the buyer’s solicitor needs to ascertain and report on rights benefiting and
burdening the land. The buyer’s solicitor should review the deeds provided in the epitome of title, and identify any covenants, easements or leases.

Question 59

3.4 Rights benefiting and burdening unregistered land

Answer 59

If the root of title refers to covenants or easements in an earlier deed, then this deed should be provided in the epitome of title. Otherwise, the buyer’s solicitor is not entitled to see earlier deeds (even if they do contain covenants or easements)

Question 60

3.5 Covenants

Answer 60

As with registered land, covenants may be positive, restrictive or unknown. They may appear in any conveyance in the chain of title

Question 61

3.5.1 Restrictive covenants

Answer 61

These will only bind unregistered land if the burden is registered as a d(ii) land charge.

Question 62

3.5.2 Positive covenants

Answer 62

These only bind unregistered land if there is a chain of indemnity covenants. The buyer’s solicitor must check each deed in the chain (instead of the proprietorship register).
Positive covenants are not registrable as land charges.

Question 63

3.5.3 Unknown covenants

Answer 63

These may arise from a missing deed containing covenants referred to in the chain of title. This should be raised with the seller, and if necessary indemnity insurance taken out, and reported to the buyer and the lender

Question 64

3.6 Other interests
3.6.1 Legal easements

Answer 64

These are not registrable by land charge. This is because they should be apparent from the epitome of title, or if acquired by prescription, by inspection.

Question 65

3.6.2 Equitable easements

Answer 65

These are registrable as d(iii) land charges as these are not necessarily apparent from the epitome of title or inspection.

Question 66

3.6.3 Estate contracts

Answer 66

These may be protected as c(iv) land charges. This can be useful to protect the buyer’s interest if there is likely to be a long period between exchange and completion.

Question 67

3.6.4 Leases

Answer 67

These are not registrable, as any leases that have not ended should be included in the epitome of title.

Question 68

3.6.5 Home rights

Answer 68

These protect the right of a spouse or civil partner to occupy the home.

Question 69

3.7 Summary

Answer 69

• As with registered land, a buyer’s solicitor investigating unregistered land must consider the issues of co-ownership, mortgages, leases and rights benefiting and burdening the property
• The Land Charges Department of the Land Registry keeps the register of land charges
• Certain interests binding unregistered land must be protected by land charge to bind any
  purchaser
• A land charges search is therefore a necessary part of the title investigation