Title Investigation Flashcards
What does the SELLERs solicitor do in pre-exchange?
Deduces title, answers pre-contract enquiries, and prepares draft contract.
What does the buyer’s solicitor do in pre-exchange?
Investigates title, pre-contract searches and enquiries, report on title, buyers mortgage, approve draft contract.
Registered land: What are the title documents?
The Land Registry official copies of the register; the Land Registry title plan; Copies of any documents referred to but not already extracted in the official copies of the register.
What are the official copies?
The property register, the proprietorship register, the charges register.
What is the Property Register?
Described the property and any rights benefitting it. (like right of way, right of light, run services). The rights may be extracted (all relevant text is shown), or a document with a bundle of rights might be referred to.
What is the Proprietorship register?
Gives the registered proprietor’s name and address, the class of title, and entries affecting ownership.
What is the charges register?
Lists rights burdening the property (mortgages, covenants, easements, leases e.g.).
What is the right of light?
Right to enjoy natural light which passes over someones land and into e.g. a window. Can be granted expressly by deed or acquired by prescription.
What issues must be considered if the property has the benefit of a right of way?
- Registration: Has the burden be registered against the servant land? needs to be to be enforceable.
- Adequacy: Legal/physical.
- Maintenance: A person using a right of way is obliged in common law to contribute towards its maintenance.
- Adoption: If a private road is adopted, the owners of the house that face onto the private road (frontages) are required to pay the costs of bringing the road to an adoptable standard.
What is title absolute (freehold or leasehold)?
Proprietor has satisfied the Land Registry that it is the true and proper owner of the property. Indicates to issues.
What is qualified title (freehold or leasehold)?
Specific defect in the tile - e.g. a deed known to contain covenants or easements was missing on first registration.
What is possessory title (freehold or leasehold)?
Granted when registered proprietor has shown they have physical possession of the property, but has no title deeds/is claiming through adverse possession - squatters rights.
What is good leasehold title (leasehold only)?
Granted when the leaseholder cannot provide evidence of the landlord’s title to the land.
IF the property has qualified title, possessory title, or title absolute, the buyers’ solicitor should…
Report it to their client and explain;
Check mortgage lender’s requirements - they might not accept inferior title classes/have certain conditions;
Consider and advise on obtaining title indemnity insurance to cover risks;
Consider possibility of upgrading to title absolute if missing docs can be located.
Who is the registered proprietor?
The person/persons named on the proprietorship register. May be an individual, company, LLP, co-owners.
Other than the registered proprietor, what other information is on the proprietorship register?
Price paid or stated value of the land if seller acquired on or after 1 April 2000.
If registered proprietor gave an indemnity covenant to the transferor on acquiring the property, it will appear as a numbered entry.
Any restrictions on proprietor’s right to sell property.
The legal title is always held by co owners as XXXXX
The beneficial title can be held as XXXX or XXXXX
Joint tenants.
Joint tenants or tenants in common.
What is a restriction in the proprietorship register?
An entry that prevents the Land Registry from registering certain dealings against the title unless the terms of the restriction are complied with.
What should the buyer’s solicitor do to satisfy the Land Registry that both legal title and beneficial title has passed to the buyer?
- If all co owners are living, they should be asked to sign the contract and execute the transfer deed.
- If a surviving beneficial joint tenant is selling the property, they should be asked to sign the contract and execute the transfer deed, and also provide a certified copy of the deceased’s death certificate.
- If a surviving beneficial tenant in common is selling the property, they will need to appoint a second trustee to sign the contract and execute the transfer deed with them. This will affect overreaching - so that the land is free from beneficial interests and the buyer needn’t worry. They should also provide a certified copy of the death certificate.
What is important about mortgages registration?
Legal mortgage must be created by deed and entered in the charges register. The lender will also require a restriction in the proprietorship register to prevent the owner from selling the property without the lender’s consent.
How are mortgages entered on the charges register?
There are usually two entries for each mortgage on the charges register. The first is the date of the mortgage, and the second is the name and address of the mortgagee.
Are positive/restrictive covenants appearing on the charges register binding?
You can assume that restrictive covenants are binding.
With positive, need to check if there is a chain of indemnity. In the proprietorship register, it might say something like ‘ 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 are the buyer’s options for dealing with covenants?
- Ask for consent from the person with benefit.
- Apply to the Upper Tribunal (Lands Chamber) to discharge the covenant. This is expensive and time consuming.
- Indemnity insurance - if land’s current use is in breach of the covenant, but no objection has been received, it is simplest to obtain an indemnity insurance policy usually at seller’s expense. Try this first.
When was compulsory first registration nationwide?
1 December 1990 for sales.
1 April 1998 for gifts.
