Investigation of title Flashcards
simply, what is investigation of title?
examining legal ownership and third party rights
what might be uncovered when investigating title? (9)
- easements
- mines and minerals
- declarations as to right of light and air
- co-ownership
- covenants (inc. restrictive, positive, indemnity, and unknown)
- mortgages
- leases
- home rights
- notices
simply, what is an easement? give examples.
a legal right of one piece of land to use another e.g. right of way, right of drainage, right of support
what must B’s solicitor do if an easement is uncovered?
o Explain easement + how it would impact client (inc. any financial obligation)
o Raise an enquiry of S to find out costs and details of any disputes
o Consider whether to advise a survey be undertaken
what does it mean if mines/minerals are excepted? what is the effect?
previous seller kept ownership and did not sell them. Current owner cannot sell them. Encroachment by new owner is trespass.
what does it mean if mines/minerals are reserved? what is the effect?
previous seller created a profit and retains right to extract them. Current seller can sell them but will be subject to reservation.
what must B’s solicitor do if mines/minerals are uncovered?
o Make enquiries as to who can exercise and if they do
o Coal mining search
o Index Map search to check if owned under separate title
what is meant by a declarations of right of light and air?
landowner sells part of their land and has declared adjoining land has no right to light etc. Allows them to build freely on retained land.
what must B’s solicitor do if there is a declaration of right of light/air?
o Make enquiries about adjoining land
o Explain to client + impact on them
if there are co-owners, who needs to be party to the transaction?
all the co-owners
what happens if one of the co-owners has died and the EI was held as JT?
surviving owner(s) can transfer alone (because under survivorship legal + equitable interest has passed to them)
what happens if one of the co-owners has died and the EI was held as TIC?
A second legal owner (a second trustee) must be appointed to overreach the deceased’s EI, unless:
- there is more than one surviving co-owner; or
- there is only one surviving co-owner but the deceased’s share is passing to them
if a co-owner has passed away, what document must always be obtained? What documents must sometimes be obtained and in what circumstances?
in all cases - a copy of the death certificate
if the deceased co-owner’s share is passing to a surviving TIC, then a copy of GOR and assent from the PRs
what steps must B’s solicitor take in relation to co-ownership?
o Establish how BI is held (i.e. JT or TIC)
o Make enquiries of co-owners
if applicable:
o Request copy of death certificate if an owner has died
o Request copy of GOP + require assent from PRs
o Ensure provision for appointment of 2nd trustee
if an RC is uncovered, what must B’s solicitor do?
- explain RC and options to client
- make enquiries depending on chosen option
if an RC is uncovered, what options does the buyer have?
o Continue with purchase and abide
o Attempt to negotiate i.e. usage, release
o Insurance
o Court application for RC to be removed/modified
in relation to RCs, what is the problem with negotiating?
Not appropriate if cannot identify person benefitting from RC
Alerts someone to rights they might not know about
what are the advantages and disadvantages of RC insurance?
Advantages: cost effective & convenient (no need to contact RC owner)
Disadvantages: insurer may refuse if RC owner is likely to object / already been contacted
what are the advantages and disadvantages of making a court application to remove/amend an RC?
Good if other options not possible, but expensive and at court’s discretion
what must the seller’s solicitor do in relation to ICs?
ensure the IC is included in the contract
what must the buyer’s solicitor do in relation to ICs?
o Inform client of obligation
o Advise a survey to check condition of subject of RC/PC
o Enquire whether S has complied with it or if anyone tried to enforce
how should an unknown covenant be treated?
safest to treat it as an RC and advise as such i.e. insurance/court application
what must the buyer’s solicitor do in relation to a subsisting mortgage?
o Ensure the contract states the property will be taken free of mortgage
o Get an undertaking from S solicitor that they will discharge on completion
when is a lease is a problem? what must the buyer’s solicitor do?
- Only an issue if B unaware.
- B solicitor must check lease terms are compatible with B’s intended use
