Title Investigation

Question 1

What does the SELLERs solicitor do in pre-exchange?

Answer 1

Deduces title, answers pre-contract enquiries, and prepares draft contract.

Question 2

What does the buyer’s solicitor do in pre-exchange?

Answer 2

Investigates title, pre-contract searches and enquiries, report on title, buyers mortgage, approve draft contract.

Question 3

Registered land: What are the title documents?

Answer 3

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.

Question 4

What are the official copies?

Answer 4

The property register, the proprietorship register, the charges register.

Question 5

What is the Property Register?

Answer 5

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.

Question 6

What is the Proprietorship register?

Answer 6

Gives the registered proprietor’s name and address, the class of title, and entries affecting ownership.

Question 7

What is the charges register?

Answer 7

Lists rights burdening the property (mortgages, covenants, easements, leases e.g.).

Question 8

What is the right of light?

Answer 8

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.

Question 9

What issues must be considered if the property has the benefit of a right of way?

Answer 9

1. Registration: Has the burden be registered against the servant land? needs to be to be enforceable.
2. Adequacy: Legal/physical.
3. Maintenance: A person using a right of way is obliged in common law to contribute towards its maintenance.
4. 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.

Question 10

What is title absolute (freehold or leasehold)?

Answer 10

Proprietor has satisfied the Land Registry that it is the true and proper owner of the property. Indicates to issues.

Question 11

What is qualified title (freehold or leasehold)?

Answer 11

Specific defect in the tile - e.g. a deed known to contain covenants or easements was missing on first registration.

Question 12

What is possessory title (freehold or leasehold)?

Answer 12

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.

Question 13

What is good leasehold title (leasehold only)?

Answer 13

Granted when the leaseholder cannot provide evidence of the landlord’s title to the land.

Question 14

IF the property has qualified title, possessory title, or title absolute, the buyers’ solicitor should…

Answer 14

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.

Question 15

Who is the registered proprietor?

Answer 15

The person/persons named on the proprietorship register. May be an individual, company, LLP, co-owners.

Question 16

Other than the registered proprietor, what other information is on the proprietorship register?

Answer 16

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.

Question 17

The legal title is always held by co owners as XXXXX

The beneficial title can be held as XXXX or XXXXX

Answer 17

Joint tenants.

Joint tenants or tenants in common.

Question 18

What is a restriction in the proprietorship register?

Answer 18

An entry that prevents the Land Registry from registering certain dealings against the title unless the terms of the restriction are complied with.

Question 19

What should the buyer’s solicitor do to satisfy the Land Registry that both legal title and beneficial title has passed to the buyer?

Answer 19

• 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.

Question 20

What is important about mortgages registration?

Answer 20

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.

Question 21

How are mortgages entered on the charges register?

Answer 21

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.

Question 22

Are positive/restrictive covenants appearing on the charges register binding?

Answer 22

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.

Question 23

What are the buyer’s options for dealing with covenants?

Answer 23

1. Ask for consent from the person with benefit.
2. Apply to the Upper Tribunal (Lands Chamber) to discharge the covenant. This is expensive and time consuming.
3. 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.

Question 24

When was compulsory first registration nationwide?

Answer 24

1 December 1990 for sales.
1 April 1998 for gifts.

Question 25

What is a root of title?

Answer 25

Deed that is to be relied upon as proving the title.

Question 26

What are the requirements for a good root of title?

Answer 26

Must be dated more than 15 years ago, deals with both 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.

Question 27

How is a chain of title made?

Answer 27

The sellers solicitor identifies the root of title and establishes a chain of title from that deed to the seller.

Question 28

What other documents need to be included when deducing unregistered title.

Answer 28

In addition to root and chain, the power of attorney under which the root of title or any deed in the chain has been executed, for transfers of ownership by death, a death certificate if the property has passed under a will or intestacy, and any mortgages created after the root of title, even if discharged.

Question 29

What documents are not needed to be included when deducing unregistered title?

Answer 29

Documents that only affect the beneficial interest (trusts, deeds); expired leases, land charges searches - but these may be included as they help the buyers solicitor.

Question 30

Check that each deed forming part of the chain of title - including root itself is…

Answer 30

validly executed and stamped.

Validly executed = before 1989 this meant clearly intended to be a deed, signed, sealed, and delivered as a dead.

Post 1989 = clearly intended to be a deed, signed, and delivered as a deed.

Question 31

Each conveyance in unregistered land should be check to ensure that it has …

Answer 31

a certificate of value or be properly stamped with the ad valorem stamp duty, and have a particulars delivered stamp.

If stamp duty is missing, the buyers solicitor should insist that the seller pays the outstanding stamp duty and provides proof that this has been done.

Question 32

Unregistered land - when can you assume that a seller who is a surviving co-owner was a beneficial joint tenant?

Answer 32

If the conveyance from the seller to the buyer states that the seller is beneficially entitled to the whole of the property; there is no memorandum of severance covering interests into a beneficial tenancy in common written on to or attached to the conveyance and there is no bankruptcy order or petition registered against the seller.

Question 33

What types of interest in unregistered land can be protected by land charges?

Answer 33

Pusine mortgages (c(i))

Estate contracts (c(iv))

Restrictive covenants (d(ii))

Equitable easements (d(iii))

Home rights (F)

Question 34

When investigating unregistered title, how do you search the Land Charges Department registers?

Answer 34

Used to be by requesting the search on a K15 form.

Now, can use the Land Registry’s online portal. Search is by years of ownership and full name. Search should be carried out against each owner of the land in the chain of title. If the beginning of ownership predates 1926, period searched begins with 1926.

Question 35

What is a vacating receipt? (unregistered land)

Answer 35

confirms that the mortgage has been repaid and signed on behalf of the lender.

Question 36

Unregistered land - how to review rights benefiting and burdening the land.

Answer 36

Buyers solicitor needs to review deeds provided in epitome and identify covenants, easements, leases. If root refers to covenants and easements in an earlier deed, this deed should be provided in the epitome.

Question 37

Rules on covenants binding unregistered land?

Answer 37

They may appear in any conveyance in the chain of title.

Restrictive will only bind unregistered land if the burden is registered as a d(ii) land charge.

Positive will only bind unregistered land if there is a chain of indemnity covenants. Buyer’s solicitor must check each deed in the chain (instead of proprietorship register). Not registrable as land charges.

unknown covenants should be raised with the seller, and if necessary, indemnity insurance taken out and reported to the buyer and lender.

Question 38

Are legal easements in unregistered land registrable by land charge?

Answer 38

No - they should be apparently by epitome of title, or, if acquired by prescription, by inspection.

Question 39

Are equitable easements in unregistered land registerable by land charge?

Answer 39

Yes, these are registrable as d(iii) land charges as they are not necessarily apparent from epitome of title or inspection.