Title Investigation

Question 1

What are Title Documents?

Answer 1

• Official Copies from the Three Registries;
• Title Plans; and
• Any documents referred to, but not included in, the Official Copies.

Question 2

What are the Three Registeries?

Answer 2

• The Property Registry;
• The Properietorship Registry; and
• The Charges Registry.

Question 3

What is the Property Register?

Answer 3

The database describing the Property and the rights benefiting it.

For whatever reason, the benefit of Covenants is not always registered in the Property Register, but always operate as if, theoretically, it should.

Question 4

What are the most Common Rights a Property Benefits from?

Answer 4

• Right of way.
• Right to run services.
• Right of light.

A note on rights of way:

Question 5

If a Property has the Benefit of a Right of Way, what Issues must be further considered?

Answer 5

• Registration: The burden must be registered against the Servient Tenement, usually with an Index Map Search.
• Adequacy: The benefit should be legally and commercially adequate given the intended use(s).
• Maintenance: The extent to which the Enjoyer will have to pay the cost of upkeep.
• Adoption: The extent to which Frontagers have to pay the costs of upkeep.

If the Servient Tenement is unregistered, you must submit a Caution of First Registration to the Land Registry, That way, it contacts you whenever an application of First Registration is made, and you can ensure your right is not overlooked.

Question 6

What is the Proprietorship Register?

Answer 6

The database the Property’s Owners and any restrictions on their ability to deal with it.

Question 7

How can you tell that a Property is beneficially held In Common?

Answer 7

Certain dealings in title, usually sale by a sole owner or mortgaging, are conditionally restricted.

Be careful that the restrictions do not arise from some other source, like a Charge or a Covenant.

Also, keep in mind that owners can convert from beneficial joint tenants to beneficial tenants in common, and vice versa, at any time.

Question 8

In a Property Transaction, what must the Buyer’s Lawyer satisfy the Land Registry of?

Answer 8

That both legal and beneficial title have passed to the Buyer. Accordingly:

• If all co-owners are selling, they must all sign the contract and execute the Transfer Deed.
• If a surviving beneficial joint tenant is selling, they must sign the contract and execute the Transfer Deed.
• If a surviving beneficial tenant in common is selling, they must appoint a second trustee to sign the contract and execute the Transfer Deed with them.

The surviving beneficial tenant in common needs a second trustee to sign so that the Buyer’s overreaches any existing beneficial interests.

Question 9

What is the Charges Register?

Answer 9

The database documenting the rights and interests burdening the Property.

Question 10

What are the most Common Rights and Interests Burdening Property?

Answer 10

• Lease.
• Covenant.
• Easement.
• Legal Mortgage.

Question 11

If a Property’s current use is in Breach of a Covenant, what should the Buyer do?

Answer 11

If no objection has been made, the Buyer should:
* Obtain an indemnity insurance policy at the Seller’s expense; and
* Approach the Dominant Tenement to come to an arrangement, if possible.

In some cases, the Buyer can apply to the Upper Tribunal Lands Chamber to have the Covenant discharged.

Question 12

How is Title Deduced in Unregistered Land?

Answer 12

By observing an Epitome of Title.

Question 13

What is an Epitome of Title?

Answer 13

A schedule of Title Deeds and documents, or copies thereof, delineating:
* The Property itself;
* Its benefits and burdens; and
* Its ownership across time, as evidenced by Roots of Title.

There is no guarantee that the Seller will have original copies of all the relevant documents.

Question 14

What is a Root of Title?

Answer 14

The Deed that goes to prove ownership by a particular party over a particular period.

Question 15

What are the Requirements of a Good Root of Title?

Answer 15

• It must be dated more than 15 years ago;
• It must address the Property’s legal and beneficial title;
• It must adequately describe the Land’s extent; and
• It must not cast doubt on the Seller’s title.

If the Root of Title’s falls after December 1st, 1990 (for value transactions) or April 1st, 1998 (for not-for-value transactions), the Seller must register the Property before proceeding. The relevant date can change based on the area, so always check. The latter are considered inappropriate for Good Root of Title.

A conveyance may still be a Good Root of Title if it references other documents in the Eptiome to help it satisfy the four requirements.

Question 16

When assessing the Chain of Title, what should the Lawyer ensure?

Answer 16

• That each Deed is valid, meaning it is:
  
  • Clearly a Deed on its face;
  • Signed and witnessed;
  • Sealed, if executed before July 1st, 1990; and
  • Delivered.
• The each Conveyance is correctly stamped.

Look for Ad Valorem Stamps and Particulars Delivered Stamps.

If the Conveyance is a Gift or Inheretance, there will be no Ad Valorem. Instead, look for language stating as much.

if the Conveyance is below the nil rate, there will by no Stamp Duty Land Tax. Instead, look for a Certificate of Value.

Question 17

Which Registry governs the Burdens on Unregistered Land?

Answer 17

The Central Land Charges Register.

This Register opened in 1926. That is the earliest you can search. Searches of the Register should be combined with an Index Map Search to reveal the Land’s boundaries, pending applications, cautions, etc.

Question 18

What are the Five Types of Burden that require Registration in the Central Land Charges Register?

Answer 18

• Puisne Mortgage (C(i)).
• Estate Contract (C(iv)).
• Restrictive Covenant (D(ii)).
• Equitable Easement (D(iii)).
• Home Right (F).

Land Charges Act 1972 — s. 2.

Searches should be carried out against each Owner of the Land in the Chain of Title because charges are linked to the Owners, not the Land.

Question 19

Do Positive Covenants bind Future Owners of Unregistered Land?

Answer 19

Only if there is a corresponding chain of indemnity covenants.