Title Investigation

Question 1

What are the duties of the buyer’s solicitor at the pre-contract stage?

Answer 1

• Searches and enquiries - order searches and ensure the seller is entitled to sell the land
• Raise any queries stemming from the above with the seller
• Obtain information through relevant transaction forms such as TA6 property information and TA10 fittings and contents
• consider surveying the property
• confirm source of funds, including mortgage and deposit
• review contract provided by seller’s solicitor to be signed by buyer.

Question 2

What are the seller’s solicitors duties at the pre-contract stage?

Answer 2

• Prepare the contract and evidence of title (Inclusion of searches)
• If property to be sold sibject to mortgage, obtain provisional redemption figure
• Obtain signature of contract from seller.

Question 3

How does the seller’s solicitor deduce title to registered land?

Answer 3

Produce a copy of the Official Copies.

Question 4

What is in the property register of the Official Copies?

Answer 4

• Description of the property and the title plan
• Benefits = rights benefitting the property, such as easements and covenants.

Question 5

What should be included in the proprietorship register?

Answer 5

Class of Title: if the title is not absolute, the solicitor should report to the client and explain, as well as checking the mortgage requirements and adivising on indemnity insurance or a possible upgrade to absolute title.

Co-ownership: if there is no restriction on the register, it is assumed the property is held as joint tenants. Whether they are joint tenants or tenants in common has implications for signing

Restrictions on Title: mortgages, beneficial interest, indemnity covenants/

Question 6

What is contained in the charges register of the Official Copies?

Answer 6

• Mortgage
• Covenants charging the property (assumed binding if negative or if positive + indemnity covenant).
• Easements which burden the land
• Leases if registered for over 7 year
• Assignments

Question 7

What are the 4 different classes of title?

Answer 7

1. Absolute
2. Qualified
3. Possessory
4. Good Leasehold

Question 8

What is absolute title?

Answer 8

The seller is the true and proper owner.

Question 9

What is qualified title?

Answer 9

There is a defect in the title (e.g burdens or benefits missing on first registration which are in fact in use).

Question 10

What is possessory title?

Answer 10

The seller has physical possession but has no title deeds or is claiming adverse possession.

Question 11

What is good leasehold title?

Answer 11

The leaseholder cannot provide evidence of the landlord’s title

Question 12

How must the transfer deed be executed where there are tenants in common?

Answer 12

Each co-owner must sign and execute.

A surviving tenant in common must overreach the deceased TIC’s beneficial interest.

Question 13

How must the transfer deed be executed where there are joint tenants?

Answer 13

• Each of them must sign and execute.
• Where it is a surviving joint tenant, they must sign, execute and provide the death certificate.

Question 14

What are the options in relation to covenants which charge the property?

Answer 14

• Assumed binding if negative
• Assumed binding if positive + indemnity covenant
• If covenant breached already by seller, they should provide an indemnity policy at their expense
• If not already breached but covenant affects value or buyer’s proposed use, could obtain insurance, consent of benefitting party or discharge by app to Upper Tribunal (restrictive covs only) in that order.

Question 15

How does the seller’s solicitor deduce title for unregistered land?

Answer 15

Produce the epitome of title, including the root of title and other relevant documents. This is a schedule of title deeds, documents and copies.

Question 16

What is the root of title and what makes it good?

Answer 16

A root of title is the title deed which shows the chain of title from the deed to the seller to prove their ownership.

A = adequately describes the property. requires a clear plan, though sometimes this is not needed for residential addresses where the neighbouring houses have identical footprints and clear boundaries.

B = be dated more than 15 years ago (if dated post-comp reg date (for value 1 Dec 1990, not for value 1 April 1998)) then should make seller register title before conveyance.

C = casts no doubt on seller’s title, i.e where the conveyance is executed under a POA and it is unclear whether that is still in force.

D = deals with both legal and beneficial title. If deed silent on this point, presumed beneficial title follows legal.

Question 17

What other documents might be included in the epitome of title?

Answer 17

• POA under which root of title / other deed in chain executed;
• Death certificate (if ownership was passed to seller by survivorship or grant of rep).
• Any mortgage created after the root of title, even if discharged
• NOT documents affecting only beneficial interests, expired leases, planning permissions or LLC1 searches.
• NOT documents pre-root of title even if they contain easements and covenants.

Question 18

What must the buyer’s solicitor do to investigate the title of unregistered land?

Answer 18

• Check epitome of title and root / chain of title, the extent of the land conveyed and the benefits / burdens.
• Check the land is not already registered
• Check the validity of the deeds in the chain
• Check each conveyance for value stamped (for conveyances between 1931 and 1 Dec 2003 for stampt duty paid).

Question 19

Which further issues could arise from title investigation of unregistered land and what further action would be required?

Answer 19

Co-ownership:
* all co-owners must sign and execute the deed.
* Can assume surviving co-owner was a joint tenant if conveyance states buyer entitled to whole of property + no memorandum of severance attached to conveyance + no bankruptcy order or petition registered against seller.

Land Charges
* positive covenants will be in deeds and binding only if there is a chain of indemnity
* Mortgage deed on epitome of title + vacating receipt if paid