Investigation of title—remember caveat emptor, CCS 6.4 & 8.6
1. Does the description of the land match the client’s expectations?
2. Is the registered proprietor the same person as the seller? If the seller(s) is/are:
An individual, this person signs the contract & execute the deed.
A company, it signs contract & executes deed. Also, check name, co. number, & solvency at CH.
An LLP, the LLP must sign the contract & execute the deed. This is done by two members or by
one member and one witness must execute the contract & deed.
Joint tenants, & they are all alive, all must execute deed. If one JT’s dead, legal & beneficial title
passes to survivor, so he can execute deed alone but LR requires certified copy of death
certificate.
Tenants in Common (when there’s a restriction on the Proprietorship register prohibiting
‘disposition by sole proprietor’) and all TiCs are alive, all of them must execute the deed. If only
one TiC survives, the purchaser overreaches beneficial interests when the surviving TiC appoints
a 2nd trustee to sign the transfer. They receive the sale proceeds jointly & hold the proceeds on
trust for the dead TiC’s beneficiaries. In this case, LR requires a certified copy of the dead TiC’s
death certificate & the deed of appointment of 2nd trustee (e.g. the purchase deed).
A personal representative, he signs contract & executes deed. BS requests official copy of dead
owner’s Grant of Representation to ensure PR was given power to deal with estate. Payment to
PR overreaches beneficial interests. PRs can give full/limited/no title guarantee, but often give
limited.
3. Does the seller have title absolute? Mortgagees won’t accept anything less.
4. Are there any restrictive covenants?
Will the restrictive covenant be enforceable against the buyer? The buyer will be bound if it
touches & concerns the land (Tulk v Moxhay).
Have there been any past breaches of the covenant?
a. If so, the buyer will inherit liability, so it is important to establish whether:
b. the seller obtained PWB’s consent. If so, provide a copy of consent prior to exchange. If not:
c. ask the SS to obtain restrictive covenant insurance. If impossible (check age) or expensive:
d. SS must ask PWB for retrospective consent (may be logistically difficult & expensive). If not:
e. apply to Upper Tribunal (Lands Chamber) (s.84 LPA 1925) to modify/discharge it (expensive
& time-consuming).
Will there be a future breach of the covenant?
a. Get a quote for restrictive covenant insurance—premium is higher due to risk. If too
expensive:
b. Ask the PWB to release the covenant, who will ask for payment + legal fees. Otherwise:
c. Apply to Upper Tribunal (Lands Chamber) (s.84 LPA 1925) to modify/discharge it.
s.19(1) FSMA prohibits advising on merits of insurance policies as a regulated activity unless
authorised or exempt.
Remedies: injunction so long as PWB hasn’t delayed or damages in lieu of it if the injury to
PWB’s legal rights is: small and estimable in & adequately compensated by money.
5. Are there any positive covenants?
Will the positive covenant be enforceable against the buyer? PCs don’t run with the land, so
check whether an indemnity covenant was given.
Are there any continuing past breaches or a future breach of the covenant?
a. Put a special condition in the contract requiring the seller to remedy breach before completion
or request a price reduction. If the breach is irremediable or there is an intended future
breach:
b. See above i.e. insurance—PWB consent—but not Upper Tribunal (Lands Chamber).
,6. Is the property subject to any mortgages?
The SS must undertake to the BS:
i. to send required sum of money to the bank so the bank can discharge the mortgage; and
ii. to send the DS1 proving discharge to the BS once they have received it from the bank.
7. Are there any easements?
Adequacy: is the easement adequate for the client’s needs? If not, deed of variation required,
which will require payment of consideration & legal costs to owner of burdened land.
Maintenance: at common law, buyer will have an obligation to contribute to the maintenance
costs. Ask whether & how much the seller has been asked to contribute, and check 3 years of
accounts.
Adoption: does the LA have plans to adopt it? Check CON 29. If client = frontager, he may incur
high costs putting the road into an adoptable standard. Even if no LA plans, there’s always a risk.
Registration: are the benefit and burden of the right registered? First, check whether the burdened
land is registered by carrying out a search of the index map (SIM):
1. If registered, retrieve official copies. If the burden is listed in the Charges register, no further
action required. If it isn’t listed, ensure the seller gets the burden registered before
completion.
2. If it isn’t, a caution against first registration must be made against the burdened land.
Remedies: if an easement has been obstructed, a claimant would have to prove: (a) title to the
easement (e.g. by way of express grant); (b) the scope of the easement; and (c) that there has been
a substantial interference with that right.
8. Is there evidence of any overriding interests?
Under sch.3 LRA 2002, is there:
1. an unregistered non-reversionary lease <7 years (sch.3(1))?
2. actual occupation which was disclosed when reasonable or obvious on reasonable inspection?
If so, BS requires occupier to sign a document waiving their interest and agreeing to
vacate on or before completion. The occupier should obtain independent legal advice
prior to signing the waiver, confirming that they understand the nature & effect of doing
so.
3. a prescriptive easement in the knowledge of the disponee or obvious on reasonable
inspection?
9. ***Any planning permission (LLC1) or buildings regulations approval (CON29) issues?
Buyers inherit liability for sellers’ breaches. LLC1 shows local land charges (e.g. smoke control
orders), CON29 shows failed & granted PPs, public roads, footpaths etc. (together = ‘local
search’). Buyer will require retrospective consent for PP breaches & BRA certification before
exchange.
10. ***Is the property connected to mains water & a public sewer? If it’s a commercial property,
ask utility supplier. If it’s a residential property, commission a CON29DW. Responsibility for
drains within a property’s boundaries which serve only that property lies with the owner.
11. ***Does the property abut a public highway? Commission a Highways Search. If not, ensure
that appropriate rights of access are in place i.e. go back to easements.
12. ***Has the buyer commissioned a structural survey & physical inspection? The BS does not
himself commission the surveyor. There are three levels of survey:
i. valuation report—merely ensures value of the property is accurate;
ii. homebuyer’s survey—for residential transactions, assesses property condition;
iii. full structural survey—thorough & expensive; essential for old buildings.
13. ***Commission a Search of the Index Map (SIM) to check whether any 3rd party titles (e.g.
registered leasehold titles) are registered against the property. It may also reveal if the
neighbouring property is registered or not.
, 14. ***Undertake Chancel Repair Search.
Chancel repair liability can pass with title. There are two possible searches to conduct. The first
(cheap and invariably done) reveals the likelihood of CRL. The second search gives more
information about the risk of liability. If there is a risk, chancel repair insurance should be
secured.
If the property been transferred for valuable consideration since 13 th October 2013, CRL will be
expressly detailed on the charges register. If not, a notice to protect chancel repair liability can be
placed on the title.
15. ***Contamination (only Phase I search is compulsory).
Environmental law (Environmental Protection Act 1990 (EPA) = retrospective & renders
‘appropriate person’ liable for the clean-up of ‘contaminated land’.
‘Contaminated land’ under s.78A(2) EPA = land that appears to the LA to be polluted such that:
a. significant harm is being caused or there is a significant possibility of such harm; or
b. significant pollution of controlled waters is being caused or there is a significant possibility of
such pollution.
‘Appropriate person’ = either:
1. Class A: the original polluter who caused or knowingly permitted the pollution of the land, or
someone who buys the land with knowledge of the contamination; or
2. Class B: the land’s owner/occupier, if no Class A persons can be found after reasonable
enquiry.
If there is evidence of contamination, advise that a Phase I Desktop Environmental Survey be
conducted. If actual or potential contamination is flagged up, a Phase II DES should be
undertaken.
16. Does the property abut common land or a town/village green? Submit (optional) form CON
29O to check whether there are any rights in common over the property e.g. rights of grazing or
public rights of access. Failure to do so when the location of the property indicates it should be
done may render BS negligent (Ladenbau, G&K v Crawley & de Reya).
17. Is the property in an area affected by coal mining/within a brine substance claim area? If so:
establish whether coal & brine search is necessary by entering property postcode into Coal
Authority’s online property search. If the property is located in an area where mining activity
may be relevant or brine extraction has affected properties:
conduct a coal mining and brine search should be submitted to the Coal Authority in Form
CON 29M with a plan of the property and a relevant fee.
18. Does the property adjoin a waterway or have a waterway passing through it? If so, a
Waterways Search should be carried out to establish:
i. who has liability for the maintenance of the river bank or canal;
ii. whether there are any rights or way along the river banks or tow paths;
iii. whether there are any drainage or fishing rights; and
iv. whether there are any water abstraction licences in place.
Note: risk of flooding is covered by the Desktop Environmental Search.
N.B. CPSEs (compulsory) aren’t authoritative if they’re confirmed by another search. Buyer at risk
under caveat emptor (SCPC 4.2.1) but if seller e.g. conceals physical defects or answers enquiries
dishonestly he’s misrepresented (Gordon v Selico). If seller writes ‘Not so far as the seller is aware’
he implies he’s made reasonable investigations into the matter (William Sindall v Cambridgeshire
County).
1. Does the description of the land match the client’s expectations?
2. Is the registered proprietor the same person as the seller? If the seller(s) is/are:
An individual, this person signs the contract & execute the deed.
A company, it signs contract & executes deed. Also, check name, co. number, & solvency at CH.
An LLP, the LLP must sign the contract & execute the deed. This is done by two members or by
one member and one witness must execute the contract & deed.
Joint tenants, & they are all alive, all must execute deed. If one JT’s dead, legal & beneficial title
passes to survivor, so he can execute deed alone but LR requires certified copy of death
certificate.
Tenants in Common (when there’s a restriction on the Proprietorship register prohibiting
‘disposition by sole proprietor’) and all TiCs are alive, all of them must execute the deed. If only
one TiC survives, the purchaser overreaches beneficial interests when the surviving TiC appoints
a 2nd trustee to sign the transfer. They receive the sale proceeds jointly & hold the proceeds on
trust for the dead TiC’s beneficiaries. In this case, LR requires a certified copy of the dead TiC’s
death certificate & the deed of appointment of 2nd trustee (e.g. the purchase deed).
A personal representative, he signs contract & executes deed. BS requests official copy of dead
owner’s Grant of Representation to ensure PR was given power to deal with estate. Payment to
PR overreaches beneficial interests. PRs can give full/limited/no title guarantee, but often give
limited.
3. Does the seller have title absolute? Mortgagees won’t accept anything less.
4. Are there any restrictive covenants?
Will the restrictive covenant be enforceable against the buyer? The buyer will be bound if it
touches & concerns the land (Tulk v Moxhay).
Have there been any past breaches of the covenant?
a. If so, the buyer will inherit liability, so it is important to establish whether:
b. the seller obtained PWB’s consent. If so, provide a copy of consent prior to exchange. If not:
c. ask the SS to obtain restrictive covenant insurance. If impossible (check age) or expensive:
d. SS must ask PWB for retrospective consent (may be logistically difficult & expensive). If not:
e. apply to Upper Tribunal (Lands Chamber) (s.84 LPA 1925) to modify/discharge it (expensive
& time-consuming).
Will there be a future breach of the covenant?
a. Get a quote for restrictive covenant insurance—premium is higher due to risk. If too
expensive:
b. Ask the PWB to release the covenant, who will ask for payment + legal fees. Otherwise:
c. Apply to Upper Tribunal (Lands Chamber) (s.84 LPA 1925) to modify/discharge it.
s.19(1) FSMA prohibits advising on merits of insurance policies as a regulated activity unless
authorised or exempt.
Remedies: injunction so long as PWB hasn’t delayed or damages in lieu of it if the injury to
PWB’s legal rights is: small and estimable in & adequately compensated by money.
5. Are there any positive covenants?
Will the positive covenant be enforceable against the buyer? PCs don’t run with the land, so
check whether an indemnity covenant was given.
Are there any continuing past breaches or a future breach of the covenant?
a. Put a special condition in the contract requiring the seller to remedy breach before completion
or request a price reduction. If the breach is irremediable or there is an intended future
breach:
b. See above i.e. insurance—PWB consent—but not Upper Tribunal (Lands Chamber).
,6. Is the property subject to any mortgages?
The SS must undertake to the BS:
i. to send required sum of money to the bank so the bank can discharge the mortgage; and
ii. to send the DS1 proving discharge to the BS once they have received it from the bank.
7. Are there any easements?
Adequacy: is the easement adequate for the client’s needs? If not, deed of variation required,
which will require payment of consideration & legal costs to owner of burdened land.
Maintenance: at common law, buyer will have an obligation to contribute to the maintenance
costs. Ask whether & how much the seller has been asked to contribute, and check 3 years of
accounts.
Adoption: does the LA have plans to adopt it? Check CON 29. If client = frontager, he may incur
high costs putting the road into an adoptable standard. Even if no LA plans, there’s always a risk.
Registration: are the benefit and burden of the right registered? First, check whether the burdened
land is registered by carrying out a search of the index map (SIM):
1. If registered, retrieve official copies. If the burden is listed in the Charges register, no further
action required. If it isn’t listed, ensure the seller gets the burden registered before
completion.
2. If it isn’t, a caution against first registration must be made against the burdened land.
Remedies: if an easement has been obstructed, a claimant would have to prove: (a) title to the
easement (e.g. by way of express grant); (b) the scope of the easement; and (c) that there has been
a substantial interference with that right.
8. Is there evidence of any overriding interests?
Under sch.3 LRA 2002, is there:
1. an unregistered non-reversionary lease <7 years (sch.3(1))?
2. actual occupation which was disclosed when reasonable or obvious on reasonable inspection?
If so, BS requires occupier to sign a document waiving their interest and agreeing to
vacate on or before completion. The occupier should obtain independent legal advice
prior to signing the waiver, confirming that they understand the nature & effect of doing
so.
3. a prescriptive easement in the knowledge of the disponee or obvious on reasonable
inspection?
9. ***Any planning permission (LLC1) or buildings regulations approval (CON29) issues?
Buyers inherit liability for sellers’ breaches. LLC1 shows local land charges (e.g. smoke control
orders), CON29 shows failed & granted PPs, public roads, footpaths etc. (together = ‘local
search’). Buyer will require retrospective consent for PP breaches & BRA certification before
exchange.
10. ***Is the property connected to mains water & a public sewer? If it’s a commercial property,
ask utility supplier. If it’s a residential property, commission a CON29DW. Responsibility for
drains within a property’s boundaries which serve only that property lies with the owner.
11. ***Does the property abut a public highway? Commission a Highways Search. If not, ensure
that appropriate rights of access are in place i.e. go back to easements.
12. ***Has the buyer commissioned a structural survey & physical inspection? The BS does not
himself commission the surveyor. There are three levels of survey:
i. valuation report—merely ensures value of the property is accurate;
ii. homebuyer’s survey—for residential transactions, assesses property condition;
iii. full structural survey—thorough & expensive; essential for old buildings.
13. ***Commission a Search of the Index Map (SIM) to check whether any 3rd party titles (e.g.
registered leasehold titles) are registered against the property. It may also reveal if the
neighbouring property is registered or not.
, 14. ***Undertake Chancel Repair Search.
Chancel repair liability can pass with title. There are two possible searches to conduct. The first
(cheap and invariably done) reveals the likelihood of CRL. The second search gives more
information about the risk of liability. If there is a risk, chancel repair insurance should be
secured.
If the property been transferred for valuable consideration since 13 th October 2013, CRL will be
expressly detailed on the charges register. If not, a notice to protect chancel repair liability can be
placed on the title.
15. ***Contamination (only Phase I search is compulsory).
Environmental law (Environmental Protection Act 1990 (EPA) = retrospective & renders
‘appropriate person’ liable for the clean-up of ‘contaminated land’.
‘Contaminated land’ under s.78A(2) EPA = land that appears to the LA to be polluted such that:
a. significant harm is being caused or there is a significant possibility of such harm; or
b. significant pollution of controlled waters is being caused or there is a significant possibility of
such pollution.
‘Appropriate person’ = either:
1. Class A: the original polluter who caused or knowingly permitted the pollution of the land, or
someone who buys the land with knowledge of the contamination; or
2. Class B: the land’s owner/occupier, if no Class A persons can be found after reasonable
enquiry.
If there is evidence of contamination, advise that a Phase I Desktop Environmental Survey be
conducted. If actual or potential contamination is flagged up, a Phase II DES should be
undertaken.
16. Does the property abut common land or a town/village green? Submit (optional) form CON
29O to check whether there are any rights in common over the property e.g. rights of grazing or
public rights of access. Failure to do so when the location of the property indicates it should be
done may render BS negligent (Ladenbau, G&K v Crawley & de Reya).
17. Is the property in an area affected by coal mining/within a brine substance claim area? If so:
establish whether coal & brine search is necessary by entering property postcode into Coal
Authority’s online property search. If the property is located in an area where mining activity
may be relevant or brine extraction has affected properties:
conduct a coal mining and brine search should be submitted to the Coal Authority in Form
CON 29M with a plan of the property and a relevant fee.
18. Does the property adjoin a waterway or have a waterway passing through it? If so, a
Waterways Search should be carried out to establish:
i. who has liability for the maintenance of the river bank or canal;
ii. whether there are any rights or way along the river banks or tow paths;
iii. whether there are any drainage or fishing rights; and
iv. whether there are any water abstraction licences in place.
Note: risk of flooding is covered by the Desktop Environmental Search.
N.B. CPSEs (compulsory) aren’t authoritative if they’re confirmed by another search. Buyer at risk
under caveat emptor (SCPC 4.2.1) but if seller e.g. conceals physical defects or answers enquiries
dishonestly he’s misrepresented (Gordon v Selico). If seller writes ‘Not so far as the seller is aware’
he implies he’s made reasonable investigations into the matter (William Sindall v Cambridgeshire
County).
