Title Investigation (Unregistered Land)

Question 1

When is compulsory registration triggered?

Answer 1

On sale or gift of land

Question 2

What dates were compulsory registration introduced?

Answer 2

For sales - 1990

For gifts - 1998

Question 3

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

Answer 3

By examining bundle of deeds and documents for the property

They identify what deeds are relevant and list them in the epitome of title which goes to the buyer’s solicitor along with copies of the deeds and documents

Question 4

What is the root of title?

Answer 4

Deed that can be relied upon as proving title.

More than one deed may qualify - most recent one should be chosen

Question 5

What requirements are there for a good root of title?

Answer 5

• must be dated more then 15 years ago
• deals with both legal and beneficial title
• adequately describes the extent of the land being conveyed
• does not cast doubt on the seller’s title

Question 6

Why should a sale conveyance or legal mortgage be preferred over gift or assent for root of title?

Answer 6

As there is an assumption that the title for the deed was investigated for 15 years, giving a total of 30 years’ title

Question 7

What is the assumption if the conveyance is silent on whether it deals with both beneficial and legal title?

Answer 7

Then beneficial title is assumed to pass with legal title

Question 8

What will amount to the extent of the land being conveyed being adequately described?

Answer 8

If there is a scale plan

If a residential address is sufficient to describe the property conveyed

Question 9

What would need to happen if conveyance of root title is executed under a power of attorney and it is unclear whether the power of attorney was in force at that time?

Answer 9

The power of attorney will need to be produced

Question 10

What would need to happen if transfer of ownership happened on death?

Answer 10

• death certificate would need to be produced if property passes by survivorship
• grant of representation and assent if property has passed under Will or intestacy

Question 11

Will mortgaged documents need to produced for epitome of title?

Answer 11

Yes all mortgages created after the root of title, even if discharged should be given to the buyer’s solicitor

Question 12

What documents do not need to be given to the buyer’s solicitor?

Answer 12

• documents that only affect beneficial interest
• expired leases
• land charges searches
• planning permission, old local searches, correspondence, architect plans

Question 13

What is the aim of the buyer’s solicitor investigating unregistered title by checking the epitome of title and the copy documents provided?

Answer 13

• check the 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 or the ability to sell in the future
• ensure that epitome of title will be sufficient to register the property with title absolute at the Land Registry

Question 14

What (in overall terms) must the buyer solicitor check when investigating title?

Answer 14

• check root of title
• completeness of chain of ownership (and validity of deeds within it)
• extent of the land conveyed
• any rights benefitting and burdening the land

Question 15

Why should the buyer’s solicitor carry out an index map search of the property?

Answer 15

• any registered titles within the boundaries
• any pending applications for registration
• a caution against first registration, which would need to be investigated further, as a person lodging such a caution is likely claiming some kind of right against the property

Question 16

Why should the buyer’s solicitor check that the date of the root of title does not fall after the relevant date of compulsory registration?

Answer 16

Because if it does, then should make the seller register the property before proceeding with the purchase

Question 17

How will the buyer’s solicitor know a deed in the chain of title is a good one?

Answer 17

If it is valid executed and stamped

Question 18

How will deeds be valid under the Law of Property (MP) Act 1989 (relevant for deeds after 31st July 1990)?

Answer 18

• clear on its face that intended to be a deed
• signed
• delivered as a deed

Question 19

How will deeds be validly executed prior to 31st July 1990 under common law?

Answer 19

• clear on its face that intended to be a deed
• signed
• delivered as a deed
• sealed (wax or paper disk)

Question 20

What is the stamping requirement for deeds?

Answer 20

Each conveyance must be correctly stamped showing the correct amount of stamp duty has been paid.

If conveyance was not subject to stamp duty (eg gifts) then should be a certificate of value confirming this.

Conveyances after 1931 should also have a ‘Particulars Delivered’ stamp meaning that they have been presented to the stamp office

Question 21

What should happen if a stamp duty is missing?

Answer 21

Buyer’s solicitor should insist that seller pays the outstanding stamp duty is paid and provide proof of this

Question 22

When will there be a problem in relation to co-ownership?

Answer 22

When not all the co-owners are available to sign the contract and execute the deed

Question 23

If there is a surviving co-owner what must be ascertained?

Answer 23

Whether the surviving co-owner has obtained full beneficial ownership to the property or not

Question 24

What assumptions can be made in relation to beneficial interest if the surviving co-owner was a joint tenant?

Answer 24

Can assume surviving co-owner was a beneficial joint tenant 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 (ie a note of signed by the joint tenants or one of them) converting their interests into a beneficial tenancy in common written on to, or attached to, the conveyance to the seller and
• there is no bankruptcy order or bankruptcy petition registered against the seller

Question 25

When can it be assumed that beneficial interest by co-owners was held as tenants in common?

Answer 25

When the conditions to hold as joint tenants have not been met

Question 26

If a seller is a surviving joint tenant, what should they be asked to produce?

Answer 26

They should be asked to produce certified copies of the deceased joint tenant’s death certificate

Question 27

If a seller is a surviving tenant in common, what should they be asked to do?

Answer 27

To appoint a second trustee to be appointed in the conveyance to the buyer to overreach the beneficial interest of the deceased tenant in common (or their estate)

Question 28

What rights can only burden a property if they are registered at the Land Charges Department?

Answer 28

• puisne mortgage
• estate contract
• restrictive covenant
• equitable easement
• home right

Question 29

How should a search of the Land Charges register be made?

Answer 29

Search should be by years of ownership and full name of owner.

Care needs to be taken in case the names of owners are spelt differently

Search should be carried out against each owner of the land in the chain of title

Question 30

When should the Land Charges Register search start if the beginning of ownership is unknown or predate 1926?

Answer 30

The period search should begin with 1926

Question 31

How will a buyer know if a mortgage over an unregistered property has been discharged?

Answer 31

As there should be a vacating receipt

Question 32

When will restrictive covenants bind unregistered land?

Answer 32

When they are registered as d(ii) Land Charge

Question 33

When will positive covenants bind unregistered land?

Answer 33

When there is a chain of indemnity covenant

Buyer’s solicitor must check each deed in the chain

They are not registrable as a land charges

Question 34

What should be done with unknown covenants?

Answer 34

Should be raised with the seller and if necessary indemnity insurance should be taken out and reported to both the buyer and lender