investigating and deducing title Flashcards
when does deducing and investigating title take place?
during the pre-exchange stage
define deducing title
S’s sol gathers documents, checks them to ensure S is entitled to sell property and sends to B’s sol
- process of proving ownership would become B’s via documents at LR etc
what do the official copies appear in?
1- property register
2- proprietorship register
3- charges register
how is title investigated?
B’s sol investigates registered title by checking LR official copies, title plan and other docs referred to on register
what is the aim of investigating title?
- ensure seller has legal right to sell
- ensure property is adequate for B’s intended use
- ensure there are no title defects that could impact value of property
what is the property register?
- states if property is freehold or leasehold
- description of property by address + title plan
- rights benefiting property
- may refer to bundle of rights contained in filed document
what are the 4 issues that must be considered if a property has benefit of right of way
- registration of burden
- adequacy
- maintenance
- adoption
what is the proprietorship register?
gives registered proprietors name and address, class of title and entries affecting ownership + when property was purchased
what are the 4 titles of classes + meaning that LR gives to each registered title?
how satisfied LR is with proprietor’s proof of ownership
1- title absolute
~best one, no issues
2- qualified title
~ specific defect in title like missing 1st reg
3- possessory title
~ when S has physical possession but no title deeds
4- good leasehold title (leasehold only) ~ when leaseholder cannot provide evidence of landlord’s title to land
what should solicitor do where a title of proprietor register is anything but ‘absolute’
- report to client + explain meaning
- check lender’s requirements
- consider advice on indemnity insurance for risks
- consider possibility of upgrading to absolute
who may a registered proprietor be?
- individual
- company
- LLP
- combination of the above
how is beneficial interest held in co-ownership?
LR will add a restriction to proprietorship register if they have been notified.
how does sol check how beneficial interest is held in co-ownership?
no restriction= assume co-owners hold jointly
TiC= assume co-owners hold as TiC but careful that joint tenants may change how they hold ownership
death of joint proprietor(beneficial JT)= deceased interest occurs to remaining co-owner, LR will register them as sole legal owner
death of joint proprietor(beneficial TiC)= surviving joint proprietor TiC only takes their share of property, rest is inherited by deceased’s will / intestacy rules
how is title passed where there is co-ownership?
- all living co-owners to sign contract + execute transfer of deed
- if surviving beneficial is selling property= sign contract + execute deed + provide death certificate
- if surviving beneficial TiC selling property= appoint 2nd trustee to sign contract + execute deed + provide death certificate
what is overreaching in the proprietorship register?
the process of transferring beneficial interests in land to money that buyer has paid so = land is freed from beneficial interests & B doesn’t need to worry
what are the 2 requirements for overreaching within proprietorship?
B can take property free from any beneficial interests provided:
- property is transferred by at least 2 trustees
- purchase price is paid in good faith
what is the charges register?
lists rights burdening property (eg mortgages, covenants, easements and leases)
how are mortgages, on the charges register, registered?
- must be via deed
- must be on charges register otherwise lender will not have legal interest
- restriction will prevent property from being sold without lender’s consent
how is a mortgage entered on a charges register?
each mortgage takes 2 entries on charges register
- first is date of mortgage
- second is name and address of mortgagee
what does it mean when a covenant appears on the charges register?
- property has burden of those covenants - these covenants may be positive or restrictive or unknown
what issues may a covenant on the charges register cause?
- existing use of land may already be in breach of a covenant
- buyer’s proposed use of land would breach the covenant
are both restrictive and positive covenants binding on property?
- all restrictive covenants appearing on charges register are binding on property
- don’t necessarily mean they are binding, depends on effect & chain of indemnity
define the chain of indemnity for positive covenants
each buyer gives an indemnity to the previous owner to bear the cost of complying with the covenant
what happens when covenant is broken within a chain of indemnity?
original owner can sue the next purchaser who can sue the person breaching covenant
what happens when a chain of indemnity is broken?
happens where S neglected to obtain an indemnity covenant
- original owner can still be sued, but chain will only go as far as the last person to give indemnity covenant
- indemnity covenant will appear on proprietorship register, if not = broken
what can B do when dealing with covenants?
if land’s current use is in breach of covenant:
- get an indemnity insurance
- approach PWB for consent to breach covenant
- application can be made to Upper Tribunal to discharge covenant
how does compulsory first registration happen?
where there is a conveyance of an unregistered title, the transfer of title is registered at LR
when was compulsory first registration commenced?
1990 for sales, 1998 for gifts
what should be done if property transaction is taking place after 1990 for an unregistered land?
B’s sol should insist that S registers their title at their expense before proceedings.
what is the epitome of title?
A summary or list of relevant title deeds proving the history of ownership of a property, where a property is not yet registered at the Land Registry- for unregistered only
How is an unregistered title deduced?
the bundle of deeds and documents for property are examined
- these docs can be held by owner / lender
- they must be listed in epitome of title
- must identify root of title!!
what is the root of title?
deed to which title to a property is ultimately traced to prove that the owner has good title- only for unregistered land!!
what are the 4 requirements of root of title?
1- must be dated more than 15 years ago
2- deals with both legal and beneficial title
3- adequately describes extent of land being conveyed
4- doesn’t cast doubt on seller’s title
apart from bundle of deeds, root of title and epitome, what other documents are needed to deduce unregistered land title?
- power of attorney where root of title / any deed in chain of title has been executed
- any death certificates; if property passed by survivorship / will / intestacy rules
- any mortgages created after root of title (even if discharged)
what should B’s sol ensure when investigating unregistered title
- check completeness of chain of ownership
- check extent of land conveyed
- check for any rights benefiting or burdening property
- SIM
what is the chain of title?
historical transfers of title to a property
- B’s sol to check that chain is complete from root of title to S’s title
- (if B has died, name of PR is next on chain of title)
how are deeds validly executed and stamped?
(formalities of LPMPA 1989, s1)
- intended to be a deed
- signed
- delivered as a deed
- SDLT stamp (if stamp missing, B’s sol insist S pays it)
how can B’s sol check how beneficial interest is held?
JT= can assume that a S who is surviving co-owner was JT if
- conveyance from S to B states that S is beneficially entitled to whole of property
- there’s no memorandum of severance (note signed by JT)
- there’s no bankruptcy order / bankrupt petition registered against S
TiC restriction= if JT conditions not met, S treated as surviving TiC
Surviving sole JT= B’s sol should ask for certified copies of deceased’s JT’s death certificate
surviving TiC= ask for a second trustee to be appointed in conveyance to B to overreach beneficial interest of deceased’s TiC
what is the function of Land Charges Department?
- some rights to property will only bind if they’re registered at land charges
- only relevant for property interests over unregistered titles
Where and how can Land Charges be searched for?
Form k15
- can also now be found using online portal
- should be carried out against each owner of land in chain of title
what are the different land charge classes?
c(i)- puisne mortgage
c(iv)- estate contract
d(ii)- restrictive covenant
d(iii)- equitable easement
f- home right
