2. Title Investigation (REGISTERED TITLE)

Question 1

A K15 Central Land Charges (CLC) search in the purchase of unregistered land is carried out on who during title investigation?

Answer 1

Against current and previous owners of the property for their periods of ownership (either companies or individuals).

Question 2

What documents are used by the seller’s sols when deducing title?

Answer 2

1. Title Register
2. Title Plan
3. Any documents referred to in the OCEs that are NOT extracted in the register

Question 3

What information is provided by the Property Register (A)?

Answer 3

-DESCRIPTION of property with reference to a plan.
-Rights BENEFITTING (e.g. right of way, to light, service media)
-EXCLUDED rights (e.g. fishing rights, mineral rights).

Question 4

What might the seller’s sols need to do if wording from a deed referred to on the register has not been extracted e.g. rights benefitting the property?

Answer 4

The seller’s sols should obtain a copy of the document for the buyer’s sols to review when investigating title.

Question 5

What does the Proprietorship Register (B) show?

Answer 5

-Registered owners’ names and address for service (Co. no.)
-Class of title e.g. Absolute
-Any INDEMNITY COVENANT to the transferor (for positive covenants)
-Right of disposal e.g. restriction in favour of lender

Question 6

What does the Charges Register (C) show?

Answer 6

-Burdens (covenants, easements, mortgages, registrable leases)
(If a mortgage, there will be 2 entries in the Charges register and 1 in the Proprietorship register)

Question 7

When investigating title, what will the buyer’s sols need to check for, in addition to the rights listed on the title register?

Answer 7

Overriding interests discoverable upon inspection e.g. non-registrable leases 7rs or less or someone in actual occupation.

Question 8

3 reasons for the buyer’s sols to investigate title?

Answer 8

1. Check Seller has legal right to sell
2. Property adequate for buyer’s needs
3. No title defects affecting value of future sales

Question 9

If there are RIGHTS OF WAY on the Property Register, what 4 aspects must the buyer’s sols consider?

Answer 9

1. Registration of burden
2. Adequacy (legal or physical)
3. Maintenance
4. Adoption

Question 10

If there is a RIGHT OF WAY on the Property Register, why is registration of the burden important?

Answer 10

If the burden is not registered on the servient title, it will not be enforceable.

Question 11

If there is a RIGHT OF WAY on the Property Register, why is ADOPTION important for the buyer’s sols?

Answer 11

There is the risk that the frontager would need to pay for the road etc to be brought up to an adoptable standard.

Question 12

If there is a RIGHT OF WAY on the Property Register, why is COST OF MAINTENANCE important for the buyer’s sols?

Answer 12

DT owner must contribute to the maintenance, as standard. Sols to make enquiries to find out the cost.

Question 13

If there is a RIGHT OF WAY on the Property Register, why is ADEQUACY important for the buyer’s sols?

Answer 13

The right of way must be both legally and physically adequate.

Question 14

What is Qualified Title?

Answer 14

A known title defect e.g. missing document. Risk of another interested party having better title.

Question 15

What is Possessory Title?

Answer 15

Physical possesion but no title deeds or adverse possession.

Question 16

What is Good Leasehold title?

Answer 16

Granted when leaseholder cannot prove LL’s title. Can be upgraded if LL’s title registered since grant of lease.

Question 17

If Title Absolute (either L/H or F/H) is not established, what might the buyer’s sols need to check in relation to a lender?

Answer 17

Check lender’s requirements. They may not accept an inferior title or they may impose conditions.

Question 18

If Title Absolute (either L/H or F/H) is not established, what action might the buyer’s sols consider?

Answer 18

1. Title indemnity insurance
2. Upgrading to title absolute e.g. if docs can be located.

Question 19

A restriction on the Proprietorship Register with wording such as “No disposition by a sole proprietor…” indicates what?

Answer 19

Co-owners are beneficial Ts in C and so this is a TinC restriction.

Question 20

If there are equitable Ts in C and there is a restriction on the title, what might need to happen in the event of one T in C’s death before a sale?

Answer 20

A second trustee will need to be appointed to whom the purchase monies could be paid, so that the deceased TinC’s beneficial interest is OVERREACHED (beneficial interest transferred to the purchase price).

Question 21

If there is a mortgage in the charges register, what will the buyer’s sols need to obtain from the seller’s sols?

Answer 21

An undertaking on completion to redeem the mortgage.

Question 22

2 possible issues re property USE the buyer’s sols may need to consider if there are covenants in the charges register?

Answer 22

1. Is the EXISTING Use of land in breach?
2. Would the PROPOSED Use of land be in breach?

Question 23

When will a positive covenant in the charges register bind a successor and what may the buyer need to do?

Answer 23

If there is a chain of indemnity covenants (from the indemnity given by the original owner), as seen in the Proprietorship Register.

The buyer may need to enter into an indemnity covenant with the seller.

Question 24

Even if a right of way/easement is silent on maintenance, what is the common law position?

Answer 24

The buyer will have the common law obligation to contribute to maintenance.

Question 25

How many entries will be on a title register for a mortgage?

Answer 25

3:
1x Proprietorship Register (restriction)
2x Charges Register (date & name/address mortgagee)

Question 26

If the buyer intends to remedy a breach of covenant by the seller on completion (e.g. by removing a prohibited structure), would the breach still be an issue?

Answer 26

No, as the breach would not be CONTINUING.
UNLESS the PWB claims they suffered loss).

Question 27

What should the seller NOT DO before seeking quotes for breach of covenant indemnity insurance?

Answer 27

Should not contact/alert the PWB (as gives notice of the breach).

Question 28

Whose responsibility is it to purchase breach of covenant indemnity insurance?

Answer 28

The seller’s

Question 29

P_______ covenants are made c___________y b_____g if there is a c____ of i________ c________. If there is an indemnity covenant in the P______________ R_______, then the standard c_________ in the contract will require the b____ to give an i_______ to the s_____.

Answer 29

POSITIVE covenants are made CONTRACTUALLY BINDING if there is a CHAIN of INDEMNITY COVENANTS. If there is an indemnity covenant in the PROPRIETORSHIP REGISTER, then the standard CONDITIONS in the contract will require the BUYER to give an INDEMNITY to the SELLER.

Question 30

What is the order for addressing breaches of covenant?

Answer 30

1. Indemnity insurance
2. Contact PWB for consent
3. Upper Tribunal (Lands Chamber) (last resort)

Question 31

When is the Upper Tribunal (Lands Chamber) not available?

Answer 31

For breaches of POSITIVE COVENANTS.