Title Investigation Flashcards
What does the process of ‘deducing title’ entail?
Seller’s solicitor gets title documents and double checks them to ensure that the seller is entitled to sell the property, and then sells them to the buyer’s solicitor
What would constitute a title document for the purposes of registered land?
Land Registry official copies / Title Plan
Once the seller’s solicitor has deduced title, what should the buyer’s solicitor loosely check about it?
That seller has the legal right to sell the property
Ensure the property is adequate for the buyer’s intended use
Ensure that there are no title defects that could affect the value of the property / ability to sell
As the buyer’s solicitor, what would you need to consider about a right of way?
Registration of the burden
Adequacy - e.g. does it work for the buyer’s purposes?
Maintenance - a person using a right of way has a common law burden to contribute towards its maintenance
Adoption - is there any risk of a property being made to adopt a right of way by a local authority?
What are the four classes of title which could be on the proprietorship register?
Absolute
Qualified - specific defect in title
Possessory - physical, but no deeds (e.g. squatters)
Good leasehold - no evidence of landlord’s title to land
What should a solicitor do if the class of title is not absolute?
Report it to client + explain what it means
Check mortgage lenders’ requirements – they may not accept inferior title classes / only with conditions
Consider and advise on indemnity insurance
Consider how to upgrade to title absolute if missing documents can be located
How many names can be on the legal title of a property?
Up to four people
If a company, solicitor would need to verify with a CH search
Where would you find a tenancy in common restriction?
Proprietorship register
What are some of the implications of co-ownership?
Must check that both legal and beneficial title has passed to the buyer
If a surviving beneficial joint tenant is selling, what formalities must be arranged?
Sign contract
Execute transfer deed
Provide a certified copy of deceased JTs death certificate
If all co-owners are selling a property, what formalities must happen?
Each one should sign the contract and execute the transfer deed
If a surviving beneficial tenant in common is selling, what formalities must they fulfil?
Must appoint a second trustee to sign the contract and execute the transfer deed, and provide a death certificate.
Second trustee is appointed in order to overreach - transferring beneficial interest in land to money the buyer has paid, making sure buyer acquires the land free from any lingering beneficial interests.
How should a mortgage be protected?
- Legal mortgage must be created by deed
- Legal mortgages must be entered in the charges register otherwise lender will not have a legal interest and buyer will take the property free of the mortgage
- Lender usually requires a restriction in the proprietorship register to prevent mortgagor from selling property without the lender’s consent
What is the general rule on covenants? What should you think if you see a positive or negative covenant on a register?
Positive covenants do not run with the land, but restrictive ones do
If there is a restrictive covenant on the charges register, you should assume this is binding.
If there is a positive covenant on the charges register, you should consider if there is a chain of indemnity
Where would an indemnity covenant regarding positive covenants be found?
Proprietorship register - but not conclusive - this would just be a trigger to investigate this further.
What should a solicitor do in the face of an unknown covenant?
Assume covenant is restrictive and binds the land
How can a buyer’s solicitor deal with binding covenants?
Obtain indemnity insurance at the seller’s expense
Approach person with the benefit of the covenant for consent to breach the covenant
Apply to the Upper Tribunal (Lands Chamber) to discharge the covenant - restrictive only
What issues would you face if you approached the person with the benefit of the covenant for consent to breach the covenant
Once you have approached the individual, the option to insure is no longer available
How do you discover the title of unregistered land?
Epitome of title
When was the compulsory first registration of land enacted?
Eastbourne, 1926
1 December 1990 sales
1 April 1998 gifts
What is the root of title
When looking at unregistered land, this is the deed that can be relied on as proving the title
What are the requirements of a good root of title?
Must be dated more than 15 years ago - before 1 December 1990
Must deal with both legal and beneficial title to the property
Must adequately describe the extent of the land being conveyed
Must not cast doubt on the seller’s title
Aside from the root of title, what other documents should be included in a bundle of documents given to buyer’s solicitor with unregistered land?
Power of attorney if relevant
Death certificate if property has passed by survivorship
Grant of representation / assent if property has passed under will or intestacy
Mortgages created after the root of title, even if they have been discharged
For unregistered land, how should you check that the epitome of title is sufficient to register the property with title absolute?
Root of title - if the date of latest deed is after the date of compulsory first registration, the seller should be asked to register the property before proceeding with the purchase.
Check each deed is validly executed and stamped.
Each conveyance correctly stamped to show correct about of SDLT paid - if after 1931, with a ‘particulars delivered’ stamp
If a gift (so no SDLT), need a certificate of value to show they were not subject to stamp duty
Index map search
What should buyer’s solicitor check re stamp duty?
Conveyance needs a certificate of value (if a gift) or be properly stamped
Particulars Delivered Stamp
What should buyer’s solicitor do if no stamp duty appears to have been paid
Insist that seller pays outstanding stamp duty and proves this
They will have to pay interest and penalties for late payment of stamp duty
How should you check for Land Charges burdening unregistered land?
Search Land Charge registers, search against each owner of the land in the chain of title
What serves as evidence that a mortgage has been discharged for unregistered land?
Vacating receipt on the mortgage deed
When should you include earlier deeds in the epitome of title?
If there are any easements, covenants or leases in an earlier deed that is not in the root of title, those deeds should themselves be included.
When will a restrictive covenant bind unregistered land?
Only when it is registered as a D(ii) Land Charge
When will a positive covenant bind unregistered land?
Only binding if there is a chain of indemnity covenants
Which types of interest can be protected by a Land Charge with unregistered land?
puisne mortgage
estate contract
restrictive covenant
equitable easement
home right
When was the Central Land Charges Register started? Why does this matter?
1926 - you always have to search from this point when looking what charges bind unregistered land.
