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Real Estate > Unregistered Title - title investigation > Flashcards

Unregistered Title - title investigation Flashcards

1
Q

Compulsory First Registration: what are the relevant dates and how must it be done if the land being purchased now is unregistered?

A
  • triggered on a dealing with the property (sale/ gift / mortgage / easement / covenant) = you must register unregistered land at the Land Registry
  • started in 1926
  • final date: 1 December 1990 (sales) and 1 April 1998 (gifts)

For this transaction - unregistered land must be registered:

  • by buyer solicitor = if root of title dated before 1 December 1990 (b/c this means the land was not sold or mortgaged after then so nothing triggered CFR)
  • by seller solicitor (on request of buyer) = if root of title dated after 1 December 1990 (this indicates a transaction happened after the required date of first registration so seller should have registered themselves)
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2
Q

how does the seller’s solicitor deduce unregistered title? (4 steps)

A

1) EXAMINE BUNDLE OF DEEDS AND DOCUMENTS

2) IDENTIFY ROOT OF TITLE

3) IDENTIFY CHAIN OF OWNERSHIP

4) PREPARE EPITOME OF TITLE

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3
Q

What is a root of title? what is a good root of title? (4)

A

a deed that can be relied on as providing title - the most recent deed that meets the following requirements:

  1. dated more than 15 years ago
  • CFR date is more than this so this is likely = buyer has to register under first registration
  • if dated after 1 December 1990 = ask seller to register at their expense
  1. deals with both legal and beneficial title (not ‘bare legal title’)
  2. adequately describes extent of land being conveyed = e.g., postal address, or referring to document of scale plan
  3. does not cast doubt on seller’s title =
  • if doc executed under POA, provide the POA document to ensure it is valid
  • if owner’s name changed due to marriage, provide marriage certificate

Good roots of title are:

  • sale or legal mortgage (not gift/trust/will)
  • dated before 1 December 1990
  • silent on legal/beneficial title because presumption is that it deals with both
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4
Q

what is the chain of ownership and what does the seller’s solicitor do?

A
  • seller solicitor must provide a chain of documents from root of title to the seller’s title
  • docs dated before root of title may be needed if they are referred to in root of title or contain relevant covenants/easements
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5
Q

Epitome of title: what is it? what is included? what is excluded?

A

list of documents and copies of documents provided by seller solicitor

documents to include:
- root of title and chain of title documents
- power of attorney which any deed in the chain of title has been executed under (incl. root of title)
- if property passed by survivorship = death certificate
- if property passed under will/intestacy = grant of representation and assent
- leases which are still running
- any mortgages created after root of title (even if discharged)

documents to exclude:
- expired leases
- land charges searches
- deeds containing planning permission, searches, correspondence, architect plans
- docs that only affect beneficial ownership e.g., trust deeds

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6
Q

what documents does the seller’s solicitor send to the buyer’s solicitor pre-exchange vs on completion?

A
  • to deduce title, seller’s solicitor sends buyer’s solicitor COPIES of documents listed on the epitome of title (as some original docs may be held by lender)
  • seller solicitor undertakes to send buyer solicitor the ORIGINAL. copies on completion and does so
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7
Q

how does the buyer solicitor investigate unregistered land? (6)

A
  • epitome of title is sufficient to register with title absolute
  • land is actually unregistered via index map search
  • the chain of ownership is complete and each deed in the chain of title is validly executed and stamped
  • check that root of title is valid and satisfies 4 requirements –> if dated after 1 December 1990 ask seller solicitor to register before proceeding
  • there are no title defects which affect the value of the land or its marketability
  • conduct Land Charges search for any benefits / burdens
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8
Q

what does an index map (SIM) search reveal? why is this important to the buyer?

A
  • if land in a boundary is registered (buyer must check the land is actually unregistered)
  • pending applications for first registration
  • cautions against first registration (could be by someone with a right agains the property like a covenant or easement)
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9
Q

validity requirements of deeds pre 31 July 1990 (common law) (4)

A
  1. clear on its face that it is intended to be a deed
  2. signed by grantor (individual + witness / company 2 directors or 1 director+secretary)
  3. delivered (dated)
  4. SEALED = RED WAX/PAPER DISC + company stamps its seal

–> buyer solicitor must check all deeds in chain of title comply

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10
Q

what are the stamping requirements of pre-1990 deeds? (2 stamps needed)

A

2 requirements:

  1. conveyance has a Certificate of Value (if gifted) OR is properly stamped with the ad valorem stamp duty (showing stamp duty tax was paid - pre-SDLT)

AND

  1. conveyance has a Particulars Delivered stamp

if any are missing = buyer solicitor insists that seller pay outstanding stamp duty and provides proof

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11
Q

checking how beneficial ownership is held in unregistered land - what should buyer solicitor do?

A
  1. assume seller is surviving joint tenant if =
  • the conveyance states that the seller is beneficially entitled to the whole of the property
  • there is no memorandum of severance
  • there is no bankruptcy order/petition registered against the seller

–> buyer solicitor should ask for certified copies of deceased JT death certificate

  1. seller is surviving tenant in common if = above requirements are not met

–> buyer solicitor must ask for second trustee to overreach the beneficial interest of the deceased tenant in common + death certificate certified copy

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12
Q

what does the buyer’s solicitor search at the land charges register when investigating title to unregistered land?

A
  • carry out the searches against each owner of the charge in the chain of title dating back to 1926 (including owners in the chain of ownership given by seller’s solicitor)
  • search is against names of owners for the period of ownership they had
  • take care that names are spelt differently
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13
Q

charges in the Land Charges Register (5 types)

A

1) puisne mortgage = C(i)

2) estate contract = C (iv)

3) restrictive covenant = D(ii)

4) Equitable easement = D(iii)

5) home right = F

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14
Q

how does the buyer’s solicitor find out what rights and burdens the unregistered land is subject to? (4)

A
  • mortgages = provided in the epitome of title even if discharged; puisne mortgages are registrable in Land Charges Register
  • easements = provided in the epitome of title + equitable easements are are registrable in Land Charges Register
  • covenants = provided in the epitome of title + restrictive covenants are are registrable in Land Charges Register
  • leases = currently running leases are provided in the epitome of title (not registrable or protected in Land Charges Register)
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15
Q

mortgages in unregistered land

A
  • mortgage deed should be listed on the epitome of title with a vacating receipt if it was discharged
  • first legal mortgage is not registrable as lender has deeds until mortgage is paid - BUT mortgage deed must have been in the epitome of title
  • puisne mortgages are subsequent and can be protected by a C(i) land charge in the land charges register
  • ensure seller solicitor undertakes to redeem the mortgage on completion
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16
Q

if buyer solicitor finds that the land is subject to covenants, what are consequences and what should he do?

A
  • positive covenants = not registrable land charges - will only bind unregistered land if there is a chain of indemnity covenants –> buyer solicitor must check each deed in the chain of title for indemnity covenants
  • restrictive covenants = will only bind unregistered land if the burden is registered as a d(ii) land charge
  • unknown covenants = may arise from missing deed - raise this issue with seller + take indemnity insurance if necessary + report this to buyer and lender
17
Q

legal easements and unregistered land

A

are not registrable land charges

should be apparent from the epitome of title or by inspection if acquired by prescription

18
Q

if buyer solicitor finds that the land has the benefit of easements, what should they do?

A

conduct an index/SIM search to check if the other land which has the burden is registered :

1) if registered = easement must be registered on the charges register of the other land in order for it to bind its current owners

2) if unregistered = easement will continue to bind the burdened land while it remains unregistered + lodge caution on first registration so that the burden will be registered when the servient land is registered

Real Estate (18 decks)

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