Investigating Title to Unregistered Land and First Registration Flashcards
What are the main areas which need to be considered in the investigation of unregistered land?
1) Searches
2) Co-ownership
3) Root of title
4) Ad valorem, PD stamps
5) Positive and restrictive covenants, and other incumberances
6) Personal representatives, and other unusual sellers
7) Positive and restrictive covenants and easements/ other third party rights
8) Execution of documents
9) Discharged mortgages
What kind of search needs to be completed when investigating unregistered titles?
A central land charges search would need to be completed against:
- the full name of ALL estate owners listed in the conveyances
- do a search against each estate owner from the day they acquired the property to the day they sold the property, which is revealed by the conveyances
- fill in missing dates of ownership
- check to see whether each conveyance was completed within the protection period of the search
- carry out any necessary CLC searches to ensure that there are no third party rights burdening the land.
When doing a CLC search against a person who bought the property, if you don’t know when they bought the property, which date would you put into the search?
You would put in the earliest date which is 1926, when the register first opened.
What happens if you are missing a conveyance but you have a local land charges search result, showing the property being being searched within this period. IS this search reliable?
This search is not reliable without seeing the conveyance. Only the conveyance would tell you when they bought and sold the land.
You cannot rely on the CLC search because it could just be a random search. The dates on the CLC form doesn’t tell you when the property was actually bought or sold.
To get around this, a search needs to be completed for the period up to the point where you have the actual copy of the conveyance which shows when the property had been transferred to someone else.
In order to ensure a complete search, what should you do if you see a search period which only covers part of the year. And where would you look to find out this information.
You need to make sure you do a search of the entire year.
One way to find out when the search covers is by looking at the protection period on the right hand side of the CLC search.
Why is it necessary to create a CLC search up to the date of the next disposal of land even if that person has died?
Because it is possible to register a charge against the person’s name even after his death.
In terms of completing searches during the pre-completion stage, what is the main difference between completing a search in registered and unregistered land?
This is similar to the practice in registered land where the buyer’s solicitor will do a pre-completion Land Registry search (OS1).
The only difference is that in registered land you must complete and apply to register the transfer within the priority period.
Whereas in unregistered land you only need to complete the purchase within the protection period.
Also in registered land, the priority period is 30 working days whereas in unregistered land the protection period is just 15 working days.
What is the issue with co-ownership is unregistered land?
What must you do if you identify a problem?
There will be an issue if there were originally two owners of the property as shown in the conveyance, and then now, you are only buying from one owner.
When this situation arises, you must establish by looking at the conveyance as to whether the co-owners were JTs or TIC.
If it is a TIC: money must be given to the purchaser and the second appointed trustee in order to overreach any beneficial interst of the other tenant in common.
What do you do if it is clear from the original conveyance that the sellers you are dealing with were originally joint tenants, but it is clear that one tenant has died and the other remaining tenant is the one selling you the property?
In unregistered land, if it is unclear whether the owners were joint tenants, then it will be presumed under the Law of Property (Joint Tenants) Act 1964 so long as:
1) There is no memorandum of severance on the conveyance to the sellers
2) Neither joint tenant has been declared bankrupt
3) In the draft and final purchase deed to the new buyer, the surviving joint tenant sells as beneficial owner or in the case of conveyances post 1 July 1995, as ‘solely legally and beneficially entitled’
If the above elements are satisfied you can purchase from the sole surviving JT (but you must get an official copy of the death certificate of the deceased JT)
What can you assume if there are two people listed on the conveyance, but the elements in determining that they are joint tenants is not satisfied?
What happens if one of the persons has died? What will you need to go through with the purchase?
You can assume they are TIC.
You will need an official copy of the deceased’s death certifiate and a deed of appointment of a second trustee to whom you can pay the purchase monies to in addition to the surviving TIC in order to override the deceased’s TIC’s beneficial interest in the property.
How do you know whether a conveyance is a good root of title?
A good root of title will be evidenced by the following:
1) date before 1 december 1990
2) it contains a description of the property which can be identified (preferably to a reference plan)
3) it deals with both the legal and beneficial interst in the property being conveyed: ie validly executed (signed as a deed) and stamped (at least with a PD stamp or an advalorem stamp)
4) there are no doubts casted on the seller’s title for example, a missing document
How do you know if a restrictive covenant binds the buyer on unregistered land?
Restrictive covenants run with the land. Therefore they must simply be registered as a D(ii) land charge against the original convenator which will then bind all subsequent owners.
Does a positive covenant in unregistered land need to be registered in order to be binding?
If it is not registered the restrictive covenant could still be binding provided that the seller gave an indemnity covenant when it purchased the property. (SCPC 6.6.4 even if there is no chain of indemnity covenants, so long as the current seller has an indemnity covenant, the new buyers will be required give one).
What do you do if you find that there are positive or restrictive covenants in the conveyance. Why is it an issue?
What can you do about it?
The sellers may be in breach of these covenants without knowing it.
Secondly the covenants may affect the buyer’s future plans for the property.
You should first get an official copy of the D(ii) land charge and verify with the seller whether it has breached the covenant at all (or any relevant positive covenants for that matter).
Inform the buyer of these issues, consider buying an insurance, or obtain release from the PWB or even apply for an application from the Land Tribunal to have the covenant removed.
What do you do if you find that there is an easement in the covenant?
It may just be an equitable easement.
We want it to be a legal easement so we need to register it. If there is no mention of right of way, we need to tell land registry that it was used and granted before 13 October 2003. This is because the easement must have been granted before the LRA 2002 came into force
You need to lodge a caution against first registration. Then you will have 14 days to prove it.
And you can prove it by sending the conveyance so it can be put on charges registry.
How can you find out if an easement is registered or not?
You can carry out an index map search which will reveal a title number. A clear result will mean it is still unregistered.
What does it mean if you find that an easement is registered but is not in the charges register?
What would you do to make sure it is registered.
All registered easements should be in the charges register. If it is not, it could have been lost and the easement is merely an equitable one.
How can you make sure that the conveyance of the legal estate has been correctly executed?
A) Individuals before 31 July 1990: signed, sealed and delivered as a deed and witnessed
B) Section 1 Law of Property Act 1989: abolished requirement that individuals had to sign, seal and deliver deeds, while introducing the requirement for it to only be signed as a deed came into force 31 July 1990
In terms of mortgages, what do buyers need to ensure?
How can this be demonstrated?
That all mortgages over the property will be discharged either before or, more usually, immediately upon completion.
If it is not properly discharged, the buyers will take subject to the mortgage.
This Can be demonstrated in one of two ways:
- 1) A separate deed of discharge, which should be included in the epitome of title if the mortgage has already been discharged; OR
- 2) A validly executed receipt on the face of the mortgage deed itself
Structure in dealing with each of these issues in an exam is:
identify charge
Is it binding
Whats the problem
Solution
How do you calculate SDLT?
up to £150 000 -NIL
£150 000 - £250 000 -2%
Over £250 000 -5%
What are the post completion matters which need to be dealt with at companies house in registered free hold land?
Which documents are required
What is the deadline?
Is this the same as unregistered freehold land?
Register mortgage from new bank
Send in MR01 Certified Copy of the new Charge Fee
Must do this within 21 days
Yes it is the same
What are the post completion matters which need to be dealt with at HMRC in unregistered free hold land?
Which documents are required
What is the deadline?
Is this the same as registered freehold land?
Need to pay SDLT
Use SDLT 1 form
Pay SDLT tax
Complete within 30 days of the completion day
Yes it is the same
What are the post completion matters which need to be dealt with at the land registry for unregistered free hold land?
Which documents are required
What is the deadline?
Is this the same as registered freehold land?
First registration of mortgage
1-FR1 -and DL (a document which accompanies the FR1, setting out in list form all of the documents being lodged at the Land Registry at the time of first registration.
2-Fee
3-SDLT 5
4-Evidence of title-i.e. epitome of title and other purchase documents including TR1
5-Original new charge
6-Copy of Companies House registration certification for new charge
7a-Certificate or written confirmation from borrower’s lenders solicitor that original new charge being lodged has been registered at Companies
House and b) the Companies House registration certificate relating to that charge.
Must be completed within 2 months of the completion day
No it is not the same as in registered land.
