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Property Law and Practice > Title Investigations (Registered Land) > Flashcards

Title Investigations (Registered Land) Flashcards

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1
Q

What is meant that the seller’s solicitor must deduce title?

A

They must get together the title documents, check them to ensure that the seller is entitled to sell the property and send them to the buyer’s solicitor

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2
Q

What are the relevant title documents for deducing title for registered land?

A
  • Land Registry Official Copies of the Register
  • Land Registry Title plan
  • copies of any documents referred to but not already extracted in the official copies of the register
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3
Q

What are the three separate parts of the register which make up the official copies?

A
  • property register
  • proprietorship register
  • charges register
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4
Q

What is the buyer’s solicitor’s aim when investigating register title?

A
  • check that 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 defect that could affect the value of the property to sell in future
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5
Q

What does the property register detail?

A
  • the property description
  • rights benefitting the property
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6
Q

What does the proprietorship section detail?

A

The registered proprietor’s name and address, class of title and any entries affecting ownership

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7
Q

What does the Charges register detail?

A

Lists rights burdening the property (eg mortgage, covenants, easements and leases)

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8
Q

What does the property description on the property register detail?

A

Sets out what the property comprises of including whether the property is freehold or leasehold and a description of the property by its address and reference to the title plan

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9
Q

What does the property register detail in relation to rights benefitting the property?

A

Will include any easements or covenants the property has the benefit of.

These will either be extracted meaning the relevant text is shown and no further investigation is needed or they will be referred to as a right contained in a filed document which then needs to be investigated

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10
Q

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

A
  • registration of the burden
  • adequacy
  • maintenance
  • adoption
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11
Q

What needs to be considered in relation to the registration of the burden and rights of way?

A

In order for the benefit of a right of way to be enforceable the burden must be registered against the land over which the right passes (the burdened/servient land)

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12
Q

What needs to be considered in relation to adequacy and rights of way?

A

Legal adequacy - is the right drafted broad enough for desired access eg access by foot v motor vehicles

Physical adequacy - is the right of way itself physically appropriate for required access ie the road is not too narrow

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13
Q

What needs to be considered in relation to maintenance and rights of way?

A

Common law to requires person using right of way to contribute towards its maintenance

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14
Q

What needs to be considered in relation to adoption and rights of way?

A

If a private road is to be adopted then the frontages are required to pay the costs of bringing the road up to adoptable standard

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15
Q

What does the class of title in the proprietorship register detail? Why does it matter?

A

Indicates how satisfied the Land Registry is with the registered proprietor’s proof of ownership to the property.

The land registry guarantees its titles with compensation so the class of title is important

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16
Q

What are the four different classes of title?

A
  • title absolute (freehold or leasehold)
  • qualified title (freehold or leasehold)
  • possessory title (freehold or leasehold)
  • good leasehold title (leasehold only)
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17
Q

What is title absolute?

A

It is the best and most common class of title.

It indicates no issues with the title - the proprietor has satisfied the Land Registry that it is the true and proper owner of the property

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18
Q

What is qualified title?

A

Where there is a specific defect to the title.

Eg where a deed known to contain a covenant or easement is missing on first registration

19
Q

What is possessory title?

A

Granted when the registered proprietor has shown that they have physical possession of the property but has no title deeds or is claiming through adverse possession (‘squatters rights’)

20
Q

What is good leasehold title?

A

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

Can easily be upgraded if the landlord’s title is registered following grant of lease

21
Q

What should the buyer’s solicitor do if the property has qualified title, possessory title or good leasehold title?

A
  • should report it to their client and explain what it means
  • check the mortgage lender’s requirements - they may not accept inferior title classes or may require conditions
  • consider and advise on obtaining title indemnity insurance to cover risks
  • consider the possibility of upgrading to title absolute if for example missing documents can be located
22
Q

What is the exception to the rule that the seller’s name will appear as the registered proprietor?

A

Where the seller is the executor of a deceased person’s estate

(Person acting under power of attorney also)

23
Q

What will the registered proprietor section detail if the owner is an individual?

A

The individual’s full name and address for service

24
Q

What will the registered proprietor section detail if the owner is a company?

A

Will set out company name, number and registered address

Should be checked against Companies House

25
Q

What will the registered proprietor section detail if the owner is an LLP?

A

Will set out the LLP name, number and registered office address.

These should be verified with details with a Companies House Search

26
Q

What will the registered proprietor section detail if the owner is a co-owner?

A

Will detail all co-owners (up to maximum of four)

Each should then sign the contract and execute the purchase deed

27
Q

What other matters aside from the owner will the proprietorship register detail?

A
  • the price paid or stated value if the seller acquired the land on or after 1 April 2000
  • if registered proprietor gave an indemnity covenant to the transferor on acquiring the property
  • any restrictions on the registered proprietor’s right to sell the property
28
Q

If co-owners have notified the Land Registry that they hold as beneficial tenants in common, then what will the Land Registry do?

A

They will add a restriction to the proprietorship register detailing that no disposition by a sole proprietor is to be registered

29
Q

If there is no restriction on the proprietorship register, what assumption can you make in relation to beneficial interest?

A

Can assume that the co-owners hold jointly

30
Q

If there is a tenancy in common restriction on the proprietorship register, what assumption can you make in relation to beneficial interest?

A

Can assume that the co-owners hold as tenants in common but check that:

  • it is a tenancy in common restriction, and not another type (eg mortgage restriction)
  • you are aware the co-owners may change the way that they hold the property and convert from beneficial tenants in common (and vice versa) at any time during their ownership
31
Q

What is the impact does co-ownership have on the buyer’s solicitor title investigation?

A

They need to be able to satisfy the Land Registry that both legal and beneficial title has passed to they buyer

32
Q

What should happen if all co-owners are living/in existence at the time of transfer?

A

They should all be asked to sign the contract and execute the transfer deed

33
Q

What should happen if a co-owner who is a joint tenant has died at the time of transfer?

A

The surviving co-owners should be asked to sign the contract and execute the transfer deed.

They should also provide a certified copy of the deceased joint tenant’s death certificate

34
Q

What should happen if a co-owner who is a tenant in common has died at the time of transfer?

A

They will need to appoint a second trustee if there isn’t one already to sign the contract and execute the deed with them.

They should provide a certified copy of the deceased tenant in common’s death certificate

The provided they pay purchase price in good faith, they will overreach the beneficial interests.

35
Q

What should be done in relation to easements and leases burdening the land?

A

They should be reported to buyer along with their terms

36
Q

If there is a mortgage registered, what else will the lender require?

A

A restriction on the proprietorship register that prevents the owner from selling the property without the lender’s consent

37
Q

How many entries will a mortgage have on the charges register and what will they detail?

A

Will normally be two entries on the charges register

First entry will detail date of the mortgage

Second will detail name and address of the mortgagee

38
Q

How will the buyer ensure that they take the property free of any mortgage?

A
  • checking early on in enquiries that the seller will have sufficient funds to clear the mortgage
  • ensuring that it is a term of the contract (before exchange) that the mortgage will be redeemed on completion and
  • obtaining an appropriate undertaking from the seller’s solicitor to redeem the mortgage from the proceeds of sale on completion
39
Q

What problems may be caused for a buyer by covenants?

A
  • the existing use of land is in breach of a covenant
  • the buyer’s proposed use of land would be in breach covenant
40
Q

When will covenants that appear in the charges register be binding on the buyer?

A

If restrictive, can assume that they are binding.

If they are positive, need to check to see if there is a chain of indemnity, otherwise not binding.

41
Q

In relation to positive covenants, how do you check to see if there is a break in the chain of indemnity?

A

If indemnity covenant then it will appear on the proprietorship register.

If not there, then can assume chain of indemnity has been broken and buyer should not provide an indemnity covenant.

42
Q

What should the buyer’s solicitor do if there are unknown covenants?

A

They should assume that some of the unknown covenants are restrictive and proceed as if they would if they were restrictive covenants

43
Q

What options to buyers have if they wish to act in breach of covenants?

A
  • can seek consent from person with benefit
  • apply to Upper Tribunal (Lands Chamber) to have covenant discharge (expensive and time consuming and rarely practical)
  • get indemnity insurance
44
Q

What is the best option for buyer who wants to act in breach of covenant?

A

They should try to get indemnity insurance first and insurers normally require no contact has been made with person with benefit

Property Law and Practice (12 decks)

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