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Property Law & Practice > SGS 1 - Title Investigation > Flashcards

SGS 1 - Title Investigation Flashcards

1. understand the process of title investigation for registered property; 2. spot and explain the issues which may arise in a title investigation of registered property; 3. appreciate the need to report issues to your client.

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1
Q

What does title mean?

A
  • Ownership
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2
Q

How is title deduced?

A
  • By the SELLER solicitor
    1. Collating title docs
    2. Reading through to ensure owner owns property + is entitled to sell it
    3. Send title docs to buyer solicitor w/ a draft sale contract for property
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3
Q

What are the title documents for registered land?

A

COT

Copies of any documents referred to in official copies of register (has 3x diff registers)

Official copies of register (in Land Registry)

Title plan

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4
Q

What are the 3 separate registers that comprise the official copies of the register?

A
  1. Property register
  2. Proprietership register
  3. Charges register
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5
Q

What is in the:

PROPERTY REGISTER that comprises the official copies of the register?

A
  • Describes property itself

- & rights that benefit the property

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6
Q

What is in the:

PROPRIETERSHIP REGISTER that comprises the official copies of the register?

A
  • Class of title
  • Owner name / address
  • Entries that affect the owners right of disposal

(OC ship = the owner has a class ship)

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7
Q

What is in the:

CHARGES REGISTER that comprises the official copies of the register?

A
  • List of charges that burden the property
  • Like 3rd party rights over the property
    • Mortgages
    • + covenants
    • Restrictive covenants
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8
Q

What is in the box in the heading of the register?

A
  • Will confirm the date + time official copy of the register was issued
    Confirms which Land Registry office deals with the property
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9
Q

Explain the 2 things that the property register will describe?

A
  1. Extent of the property

2. RIGHTS benefitting the property

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10
Q

How is the property described in the title register?

A
  • By the address in property register
  • Have to forward a copy of the title plan to the buyer
  • To make sure that boundaries correspond with the buyer understanding of the size / location of the land
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11
Q

How does the property register show rights benefitting the property?

A
  • hatched black markings
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12
Q

What should be considered by the buyers solicitor when a right of way is included in the Property Register?

A

MARA - right of way checks

  1. Maintenance - buyer has default obligations
  2. Adoption (CON 29 check)
  3. Registration (of rights)
  4. Adequacy for client purposes
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13
Q

What is adoption?

A
  • Brought under local authority control
  • Road becomes public
  • Everyone can use - costs met out of public purse
  • Getting to adoptable standard - would have to be borne by the frontagers, those who front out onto the road
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14
Q

Which search is done for adoption?

A
  • CON 29 search

- Will show any current local authority plans for adoption of privately owned roads that have been searched against

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15
Q

Which search is done to check Registration?

A
  • SIM: Search of the Index Map

- This is search of the Land Registry mapping records

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16
Q

Who has ownership of all private sewers serving more than one property and lateral drains?

A
  • Statutory sewage undertakers

- Such as Thames Water

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17
Q

What are 2 methods of establishing right of light?

A
  1. Express grant via deed (rare)

2. Prescription, under Prescription Act 1832

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18
Q

What is the first step to checking no express or implied rights of way / rights to lay pipes are required?

A
  • By checking title plan to make sure that the property abuts the public highway
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19
Q

What is the remedy for an obstruction of an easement?

A
  • An action for nuisance
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20
Q

What will a claimant have to prove for action for nuisance for remedy of obstruction of a nuisance?

A
  1. Title to easement
  2. Scope of easement
  3. That there has been substantial interference of the right
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21
Q

What 5 things does the PROPERIERTERSHIP register show?

A
  1. Class of title
  2. Identifies registered proprietor (owner)
  3. Sets out restrictions affecting owner rights of disposal
  4. Sets out indemnity covenant given by proprietor
  5. Price of property when last bought
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22
Q

What are the 4 possible titles over land?

A
  1. Title absolute
  2. Qualified title
  3. Possessory title
  4. Good leasehold
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23
Q

Who can be a registered proprietor?

A
  1. Individual
  2. Company
  3. LLP
  4. Joint owners
    - could also be bank that has repossessed property after non payment
    • Personal rep of deceased reg. proprietor
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24
Q

What has to be done for sale?

A
  • Sign / execute contract.
  • Execute contract deed.
  • If company, the proprietarship register should contain the registered proprietorys company number.
25
Q

What is the purpose of the Companies House search? Who is it done on, and what is the purpose?

A
  • On a company seller
  • BEFORE exchange of contracts
  • It is against the registered proprietors company number
  • Checks company registered + still exists
  • Company not subject to winding up proceedings
26
Q

What are the 2 main RESTRICTIONS in the Proprietarship register that come up on the course?

A
  1. No disposition by a sole proprietor of the registered estate
  2. Lender puts restriction on the Proprietorship Register to prevent dealings with the land without its consent
27
Q

What can you infer if there is no tenant in common restriction on the proprietorship register?

A
  • Then the join owners hold the legal and beneficial interest in the property
  • As joint tenants
28
Q

What does the Charges Register set out?

A
  • Any third party rights which burden the property

- Like mortgages / third party rights affecting the property

29
Q

What will bind a buyer of registered freehold land? Where is this found?

A
  • S29.2 LRA 2002
    1. Interests on the Charges Register
    2. Interests overriding registered dispositions
30
Q

What are the most commonly found entries on the Charges Register?

A

Mortgages
Restrictive covenants
Positive covenants
Easements / leases

31
Q

What are the characteristics of a good mortgage?

A
  • Legal mortgage - must be created by deed
  • All legal mortgages must be registered in the Charges Register of the registered property
  • Otherwise the mortgagee will not obtain a legal interest
  • And third parties will take free of the mortgage
32
Q

What is a common Restrictive Covenant?

A
  • No alterations without consent

- “vendor” = PWB, person with benefit

33
Q

How are Restrictive Covenants protected by registration in the Charges Register?

A
  • Fully set out in the register

- By reference to document filed at the Land Registry

34
Q

How does BUYER solicitor identify issues when reviewing restrictive covenants on the Charges Register?

A
  • See if there have been any past breaches of covenant which are continuing, as buyer will be liable
  • If buyer proposed plans or future could be breaches
35
Q

What happens if there has been a past breach of a restrictive covenant, and the breach will continue?

A
  • Buyer solicitor will ask seller solicitor to confirm whether or not consent of the person with benefit was obtained before to the breach of the covenant
  • If there was - then no breach
  • SS - give copy of the PWB consent
  • Ask about restrictive covenant insurance
36
Q

What is RCI, Restrictive Covenant Insurance?

A
  • A quick and cheap solution for a past breach of a restrictive covenant
  • Espesh if covenant is old (50+ years old)
  • Insurance - has a single one off premium, covers both the buyer + buyer successors in title
37
Q

When may insurance not be available? What can be done?

A
  • Breach = v. recent / covenant is only a few years old
  • Second option - PWB for retrospective consent
  • PWB might be hard to trace
  • And will charge
  • This is not first option - will alert PWB to existence of covenant and the possible breach
  • Would mean that you can no longer get insurance
38
Q

What is the third and final option available if there is no restrictive covenant insurance, or retrospective insurance?

A
  • Application to the Upper Tribunal (Lands Chamber)
  • S84 LPA
  • Waiver / discharge / modification of restrictive covenant
  • Expensive + time consuming option
  • Impractical as will take months, most transactions are over in weeks
39
Q

What if client intends to make a future breach?

A
  • Should advise them to get a quote for Restrictive covenant insurance
  • Insurers taking a greater risk
40
Q

What are the remedies for a breach of restrictive covenant?

A

Injunctions

- Prohibitory 
- Mandatory 
- Interim injunction
41
Q

When is a PWB unlikely to be granted an injunction

A
  • If they stand by and wait
42
Q

What is an alternative to being offered injunction?

A
  • Granting damages
  • More likely if injury to applicants rights are:
    • Small, can be estimated in money
    • Can be adequately compensated by a small money payment
    • Would be oppressive to developer to do injunction
43
Q

Do positive covenants run with the land? Why?

A
  • No
  • Deemed inequitable to get someone to incur expense to covenant where they were not originally a party
  • Positive covenants therefore should not appear on charges register but they do - because buyers can agree to comply w/ + covenants
44
Q

With indemnity contracts, what does the buyer solicitor need to check?

A
  1. Continuing past breaches
  2. Intended future breaches
    • Insurance
    • Consent / release from the PWB
45
Q

Is an application to the Upper Tribunals (Land Chamber) available for a positive covenant?

A
  • No

- S 84 LPA 1925

46
Q

What are overriding interests?

A
  • May find unregistered rights

- Which benefit / burden the property

47
Q

Where in the statute are unregistered interests addressed?

A
  • Sch. 3 of the LRA 2002

- Limited further list is in sch.12

48
Q

What is an overriding interest?

A
  • Unregistered interests
  • That will override on the sale of registered land
  • “registered disposition”
49
Q

What are the 3 overriding interests that I need to know?

A
  1. Leases
  2. Easements
  3. Interests of persons in actual occupation
50
Q

Explain easements as an overriding interest?

A
  • Para 3. Sch 3 LRA 2002
  • Legal easements overriding on sale of registered land
  • Legal easement can arise via:
    • Prescription
    • Necessity
    • Implication on Wheeldon v Burrows rule
51
Q

What are the formalities of an easement?

A
  • Created by deed

- Registered on Charges register of burdened land - 27(2)(d) LPA 1925

52
Q

How can leases be overriding?

A
  • Para 1 of Schedule 3 LRA 2002
  • Leases of not more than 7 years will be overriding
  • Para 12 of schedule 12 LRA - where lease granted before 13 Oct 2003&raquo_space; subject to old definition of overriding interest
    • S70(1)(k) LRA 1925 - tab this
53
Q

Explain the interests of persons in actual occupation?

A
  • Para 2 Schedule 3 LRA 2002
  • Interests of persons in actual occupation = overriding
    This is beneficial interest of a non owning occupier
54
Q

What needs to be done if there are non-owning occupiers?

A
  • Get occupier to sign a doc that waives possible interests in the property
  • AND agreeing to vacate property before / on date of completion of purchase
    Contract can cross refer to this document
55
Q

If there is only one means of access, what must be made really sure of?

A
  • That the right of way on the Property Register is sufficient for client needs
  • So that client can fully enjoy its ownership of the property
    If there was no right / right was defective - property would run risk of being landlocked
56
Q

Why is there not a right of way in the Property Register for most properties?

A
  • Most properties abut the public highway
  • Therefore owners of such properties are able to access their properties
  • Without have to cross anyone else land
  • Therefore - no need for a private right of way
57
Q

Why is finding out the information that a road is public / private so significant?

A
  • If private: who will be responsible for making up the private road to be the standard of a public highway
  • Who will pay for such works
  • Adoption&raquo_space; private roads can be adopted by council and made into public highways&raquo_space; requires work
58
Q

Which search would be done to identify the boundary between public highway and private land?

A
  • Highways Search
  • If the road used to access the property is not a public highway then a right of way over the privately owned access road will be required
  • This is why there is a right of way in Property Register
59
Q

Which other factors need to be considered regarding a right of way?

A

MAC considerations
Maintenance
Adequacy for RPL
Correctly registered on the burdened land (on the Charges Register)

Property Law & Practice (6 decks)

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