Chapter Two: Investigation of Title

Question 1

What is meant by Investigation of Title?

Answer 1

The process of establishing who owns the property and whether there are any rights or rules which could affect the owner’s use and enjoyment of it.

Question 2

Regarding investigation of title, what will a solicitor acting for a buyer need to check?

Answer 2

1) check that the seller owns the property so is in a position to sell it
2) check if there is anything that burdens the seller’s title which would deter a buyer.

Question 3

Regarding investigation of title what does the seller’s solicitor need to do?

Answer 3

They will need to investigate their client’s title. They will be keen to anticipate any problems, with the title and deal with them in advance.
They will need to produce the first draft of the contract of sale

Question 4

When do encumbrances need to be identified and specified in the contract?

Answer 4

At the earliest possible stage.

Question 5

When did it become compulsory to register unregistered land?

Answer 5

1 December 1990

Question 6

How do you investigate title to freehold registered land?

Answer 6

The seller’s solicitor need to obtain copies of the register of title for the property which are called ‘OFFICIAL COPIES’.
They will need to get a copy of the Land Registry plan for the property, known as the ‘title plan’.

Question 7

What is deduction of title?

Answer 7

The seller’s obligation to prove to the buyer their ownership of the property.

Question 8

When should the title be deduced?

Answer 8

Before the exchange of contracts.
With registered land, the seller should supply to the buyer, at their own expense, official copies that are less than six months old.

Question 9

How are official copies set out in registered land?

Answer 9

The official copies show the title number to the property and an ‘edition date’.
They also show the ‘search from date’.

Question 10

What is an ‘edition date’ on an official copy?

Answer 10

The date on which the Land Registry last updated the title

Question 11

What is the ‘search from date’ on an official copy?

Answer 11

The specific date of the official copies showing the entries subsisting on the register at a certain time.

Question 12

How many registered are there in the official copies?

Answer 12

Three.
Property
Proprietorship
Charges

Question 13

What is the Property Register?

Answer 13

Will always contain a description of the land by reference to the postal address and the title plan.
Indicates whether freehold or leasehold.
MAY indicate whether there are any easements or rights and that certain things one might expect to come with the land, eg right of light.

Question 14

What is the Proprietorship Register?

Answer 14

Will always identify the current owners and their address.
Will always identify the class of title.

Question 15

How is the class of title determined?

Answer 15

Determined by the Land Registry. when the property is first registered.

Question 16

What are the three classes of title for freehold land?

Answer 16

Absolute
Possessory
Qualified

Question 17

What is absolute title?

Answer 17

The most common and best class.
The registered proprietor has vested in them the legal estate subject only to the entries on the register, overriding interests etc.

Question 18

What is possessory title?

Answer 18

Granted where the proprietor is in possession of the property but has lost the title deeds or is claiming through adverse possession, meaning that the proprietor is also subject to all adverse interests existing at the date of the first registration

Question 19

What is qualified title?

Answer 19

Granted where there is a specific identified defect which the registrar feels cannot be overlooked or ‘cured’ by the grant of absolute title.

Question 20

What is the Charges Register?

Answer 20

Will identify the encumbrances.
The solicitor will be looking out for: covenants, easements, charges, leases, notices.

Question 21

How do you investigate title to freehold unregistered land?

Answer 21

The first step is to check whether the land is already registered or is subject of a pending application for first registration.
Title is proved by title deeds.
The seller provides the buyer with copies of the title deeds. If a sale of the whole property, the seller will hand over the original copies to the buyer on completion. If a sale of part, the seller will keep the original title deeds and hand over certified copies. The buyers solicitor will analyse the copies against the original.

Question 22

What is an application for first registration?

Answer 22

Warning any person attempting to deal with the land that the person has an interest in the land, such as an easement.
When the application is lodged, the Land Registry will ‘warn off’ the cautioner, (give them time to establish their rights).

Question 23

What is the process known as ‘verification of title’?

Answer 23

The buyer’s solicitor examining the original title deeds against the copies that they received prior to exchange of contracts to check that they are the same.

Question 24

What is deducing title in unregistered land?

Answer 24

Involves examining the parchment or paper deeds which have been used to transfer ownership of the property in the past.

Question 25

In unregistered land, what should the seller’s solicitor do once they have obtained the title deeds?

Answer 25

They must consider whether any past transaction would have triggered the first registration.
Then must look through the title deeds and find the document that will be the ‘root of title’.

Question 26

What is the root of title?

Answer 26

The document from which to begin the title investigation.
Must be a single document.
Once the root of title is investigated, subject to exceptions, any older documents that pre-date the root can be ignored.
One exception is documents that refer to third party rights created in an earlier conveyance.

Question 27

What will the seller’s solicitor do once it has sourced the root of title?

Answer 27

Prepare the epitome of title.

Question 28

What is the epitome of title?

Answer 28

A schedule of all the documents from and including the root until the present day.
The documents should be numbered and listed in chronological order. Attached to the epitome of title is copies of these documents.

Question 29

What are the requirements for a good root of title?

Answer 29

Deal with or who who owns the entire interest (legal and equitable) that is being sold by the current owner
Contain a recognisable description of the relevant land.
Do nothing to cast doubt on the seller’s title.
Be at least 15 years old.

Question 30

What is the preferred document for the root of title?

Answer 30

A conveyance that meets the conditions, it orders a double guarantee. The current buyer will be investigating the seller’s title back for a period of 15 years, and the buyer under the the root conveyance should similarly have investigated title of at least 15 years before they purchased.

Question 31

Order of root of title preference

Answer 31

Conveyance
Mortgage
Deed of gift
Assent

Question 32

How do you establish whether a conveyance deals with both the legal and equitable interests in the land.

Answer 32

The solicitor should look for a paragraph beginning with the word ‘WHEREAS’
Also ‘BENEFICIAL OWNER… UNTO THE PURCHASER’

Question 33

What should solicitors do after root of title is identified?

Answer 33

All subsequent title deeds must be checked in a systematic and thorough manner. Many solicitors start be reading through all the title deeds a number of times, focusing on the following:
the chain of ownership
description of the land
stamp duties
encumbrances
execution
land charges searches

Question 34

What should be looked out for regarding the chain of ownership?

Answer 34

There should be an unbroken chain of ownership from the owner indicated in the root of title up to the present seller.
Since legal estate can only be transferred by a deed, there should be documentary evidence of every change of ownership. I.e, the person who acquired the property in the root of title should be the same person who is transferring title in the next document.

Question 35

How are covenants and easements referred to in title deeds?

Answer 35

’ EXCEPTING AND RESERVING’

Question 36

Execution of documents in title deeds

Answer 36

Each document should be checked to ensure that it was properly executed.
Most documents will need to be executed as a deed.

Question 37

How can some incumbrances bind unregistered land?

Answer 37

If they are correctly registered as a land charge at the Central Land Charges Department in Plymouth.

Question 38

What should the solicitor do with all the names mentioned in the epitome of title?

Answer 38

Make valid searches of all the names of all the estate owners revealed in the epitome of title, even if their period of ownership pre-dates the epitome of title. (Form K15).

Question 39

What are some issues that might be revealed in an investigation of title? What further action will be required?

Answer 39

Sometimes a property will come with certain rights attached to it. Such rights benefit the property and the buyer’s solicitor need only check that the rights are sufficient for the intended use of the property.

Question 40

Where will easements be found?

Answer 40

Primarily in the Charges Register
May sometimes be found in the Property Register.

Question 41

What is the rule in Halsall v Brizell?

Answer 41

The buyer of the property with the benefit of this right of way should be advised that if they want to use the right of way, they will need to contribute to the costs of maintenance.

Question 42

What interest do joint tenants have?

Answer 42

An equal interest.
Joint tenants can only have a legal interest.

Question 43

What interest do tenants in common have?

Answer 43

Interests equal to their shares.

Question 44

What happens when the conveyance shows that there are joint owners but only one owner is selling?

Answer 44

The missing owner must be found.
if alive, they must be a party to the contract.
If dead, the seller’s solicitor will need to provide certified copy of the death certificate.

Question 45

In the absence of a restriction in the Proprietorship Register, what can be assumed regarding registered land?

Answer 45

The buyer can assume that the equitable joint tenancy was not ‘severed’ prior to the death of the deceased co owner.

Question 46

What conditions must be met for the buyer to assume that the joint tenancy was not severed?

Answer 46

1. There is no memorandum of severance endorsed on the conveyance of the property to the joint tenants
2. There are no bankruptcy proceedings registered against either of the joint tenants at the Land Charges Registry
3. The transfer by the surviving joint owner to the buyer contains a statement that the survivor is solely and beneficially entitled to the land.

Question 47

What happens when there is only one surviving legal owner and the equitable interest was held by co-owners as tenants in common?

Answer 47

Another owner, (a second trustee) needs to be appointed to overreach the equitable interest of the deceased co-owner.
The appointment of the second trustee can be madden the transfer of the property or by separate deed of appointment.

Question 48

How can the interest of a deceased co-owner be overreached?

Answer 48

When the buyer pay the purchase price to at least two trustees on completion and the buyer will take the property free of other people’s interest.

Question 49

What are restrictive covenants?

Answer 49

Prevent land being used in particular ways and are usually biding on successors in title to the original parties.
In registered land they are found in the Charges Register.
In unregistered land they are found in the conveyance.

Question 50

When will a post 1925 restrictive covenant be binding?

Answer 50

A post 1925 restrictive covenant will only be binding against the buyer if it was validly registered as a D(ii) Land Charge against the name of the original covenantor.

Question 51

What should the buyer’s solicitor do regarding restrictive covenants in unregistered land?

Answer 51

They should:
Ask the seller if they know who currently owns the property with the benefit of the covenant. If known ask that owner if the buyer can come to an agreement
Obtain a restrictive covenant insurance policy for the proposed breach of covenant.
Apply to the the Upper Tribunal (Lands Chamber) for modification or discharge of covenant on the grounds the covenant is obsolete or confers no practical benefit of substantial value or advantage.

Question 52

What is a positive covenant?

Answer 52

It obliges the covenantor to carry out works or incur expenditure.
Registered land- Charges register
Unregistered land- Conveyance.

Question 53

Who is bound by a positive covenant?

Answer 53

It always binds the original covenantor, but the burden does not run to a successor in title to the original covenantor.
At first sight, a positive covenant is not binding on a new buyer. BUT, when the original covenantor sold their land they probably required an INDEMNITY COVENANT.

Question 54

What is an indemnity covenant?

Answer 54

If the original covenantor is sued they can recover from the later buyer who gave them the indemnity covenant.

Question 55

When does a lease require registration in its own right?

Answer 55

When the term of the lease is for 7 years or more.
For unregistered land, when there is 7 or more years left.

Question 56

How may leases not exceeding seven years be enforced?

Answer 56

As overriding interests.

Question 57

What is a parol lease?

Answer 57

3 years or less.

Question 58

What is a notice?

Answer 58

An entry on the Charges Register in respect of the burden of an interest affecting a registered estate or charge.

Question 59

What is an agreed notice?

Answer 59

Put on the register with the agreement of the registered proprietor.

Question 60

What is a unilateral notice?

Answer 60

Used where the registered proprietor has refused to consent to the entry or has not been asked about it.

Question 61

What does a notice do?

Answer 61

It does not give the person who registered it any rights over the property. it merely serves to ensure that the priority of the interest referred to in the notice is protected against any subsequent interests.

Question 62

What is a home right?

Answer 62

A statutory right to allow a non-owning spouse to occupy the. matrimonial home.
It does not create an interest in the land.
In registered land it binds the buyer if it is protected by a notice in the Charges Register by the date when the transfer of the property to the buyer is registered.
If unregistered land, a home right must be protected as a Class F land charge to be binding on the buyer.
If the title investigation reveals a home right, the seller should be required to obtain from the non-wonerning occupier a release of all rights in the property and agreement to vacate on or prior to completion.