Property Law 2 Flashcards
Who deduces Title?
Seller - it then answers pre-contract enquires and then prepares the draft contract
What does the seller’s deducing title mean?
Deducing title means the process of proving ownership to a would-be buyer.
Who investigates title?
Buyer - order and review pre-contract searches, raise pre contract enquiries and then report on title. The buyer’s solicitor will also need to deal with the buyer’s mortgage and approve the draft contract .
What’s involved in the buyer’s title investigation?
- 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
What are the title documents in registered land?
- Land Registry official copies of the register
- Land Registry title plan
- Copies of any documents referred to, but not already extracted in the official copies of the register
The official copies of the register comprise three separate registers what are they and what order do they appear in?
- A. Property register: describes the property and any rights benefiting the property (eg, covenants or easements)
- B. Proprietorship register: gives the registered proprietor’s (owner’s) name and address, the class of title and entries affecting ownership
- C. Charges register: lists rights burdening the property (eg, mortgage, covenants, easements and leases)
What is included in the property register?
Property description
Rights benefiting the property
property register - What’s included in the property description?
- States whether the property is freehold or leasehold.
- Describes 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.
property register - The Rights benefiting the property will be set out in the property register and maybe extracted. If so, do you need to refer to the document itself?
No
property register - The Rights benefiting the property will be set out in the property register and may refer to a bundle of rights contained in a document which is filed. If so, what should the seller do?
The seller’s solicitor should provide a copy of any filed documents (either from the pre-registration deeds or from the Land Registry)
property register - If the property has the benefit of a right of way, what issues must be considered:
- registration of the burden
- adequacy
- maintenance
- adoption
property register - What is required for a registered right of way to be enforceable?
the burden must also be registered against the land over which the right of way passes (the servient land)
property register - Why does maintenance of a right of way need to be considered?
a person using a right of way is obliged in common law to contribute towards its maintenance
property register - Why does Adoption need to be considered
if a private road is adopted, then the frontagers are required to pay the costs of bringing the road up to adoptable standard.
Proprietorship register - How will you know if a property is held by Tenants in Common?
The Land Registry will add a restriction to the proprietorship register - e.g.
“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.”
Proprietorship register - What if there’s no restriction on the proprietor register?
You can assume that the co-owners hold jointly
Proprietorship register - who should be asked to sign the contract and execute the transfer deed if all co-owners are living?
All of them
Proprietorship register - who should be asked to sign the contract and execute the transfer deed if one joint tenant is living?
They should be asked to sign the contract and execute the transfer deed.
They should also provide a certified copy of the deceased joint tenant’s death certificate.
Proprietorship register - who should be asked to sign the contract and execute the transfer deed if one tenant in common is living?
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.
Proprietorship register - What does overreaching mean and when does it apply?
The process of getting another trustee to sign the deed for tenants in common where one has dies. This means that the land is freed from beneficial interests
Charges Register - what’s included on the Charges Register?
Mortgage in favour of a lender
Leases
Easements - the land may be subject to rights of way, rights of light, rights of service media (pipes, cables, etc)
Covenants (restrictive or positive) - burden, not the benefit.
Charges Register -How are Legal mortgages created?
By deed.
Charges Register - What happens if a legal mortgage is not included on the charges register?
The lender will not have a legal interest
Charges Register -Where should a mortgage be registered?
B: Proprietorship register
C: Charges register
Charges Register Covenants - what are the three types of covenant?
restrictive,
positive or
unknown.
What are restrictive covenants?
a covenant not to do something
What do restrictive covenants bind on?
The property
What are positive covenants?
a covenant to do something
What do positive covenants bind on?
The owner (not the property) but there will often be a chain of indemnity where each subsequent purchaser indemnifies the last.
e.g. 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.
What if there is no indemnity covenant on the register?
The chain of indemnity is broken and the buyer should not provide an indemnity covenant.
Who is responsible for adding unregistered land to the register?
The buyer
Who deduces unregistered title?
The seller’s solicitor
Which document normally forms the root title?
The most recent deed
When considering root title, which documents are preferred and why?
- A sale conveyance or legal mortgage is better than a gift or ascent
- there is an assumption that the title will have been investigated giving a further 15 years of title.
How old must the Root title be?
15 years ago
What must be included in the Root title?
- deals with both the legal and beneficial title to the property
- adequately describes the extent of the land being conveyed
- does not cast doubt on the seller’s title
What if the conveyance relied on for root does not mention both the legal and beneficial ownership?
Beneficial title is assumed to pass with the legal title.
What documents should be included if the property passed by death by survivorship?
death certificate
What documents should be included if the property passed by death by will?
grant of representation
What documents should be included if the property passed by death by intestacy?
an assent
What other document should always be included in root title for unregistered land.
Mortgage created after root title even if paid off
Do documents that only affect the beneficial ownership need to be included in the epitome of title?
no
Do expired leases need to be included in the epitome of title?
No
Do Land Charge searches need to be included in the epitome of title?
No - although may help the buyer
What if the root title falls after the relevant date for compulsory registration?
Seller should be asked to register the property
Once you have found the root title, what next?
Check the chain of title is complete (I.e. the byer in one deed is the seller in the next).
When might the seller not be the same as the buyer in the title chain?
If died or married
Once you’ve found the root title and found the chain of title is complete, what do you do next?
Check that the deeds are:
- Validly executed as a deed and
- Stamped showing the correct amount of ad valorem stamp duty has been paid
What is the key year regarding the requirements of a valid deed?
1989
What are the requirements for a validly executed deed pre-1989?
- Clear that it is intended to be a deed
- Signed
- Sealed
- delivered as a deed (dating the document)
What are the requirements of a deed after 1989?
- Clear that it is intended to be a deed
- Signed
- delivered as a deed (dating the document)
(note: difference is deed does not need to be sealed)
What checks should be made for Stamp Duty for unregistered land?
- Conveyance needs to have a certificate of value (if gifted) or properly stamped with ad valorem stamp duty.
- Conveyance should have a ‘Particulars Delivered’ stamp.
What if the stamp duty is missing?
- Insist seller pays the outstanding stamp duty, and
- provide proof that it has been done
If the root title contains a plan, does the plan need to be included in the epitome of title?
Yes
