FREEHOLD TITLE
Process of Title Investigation
Seller’s Solicitor: Deduction of title - collate title documents to ensure seller owns the property and is entitled
to sell.
Buyer’s Solicitor: Investigation of title (may get a set of official copies and title plan direct from Land Registry
rather than waiting for Seller’s solicitor to send). Ensure no defects in title affecting ability to sell in future.
TITLE DOCUMENTS
Title Plan: Image showing the boundaries of the property
Official Copies of the Register (and any documents referred to in official copies).
- Header includes the search from date (and time). Ensure not more than 1 year old and ideally less than 2
years. Check with Land Registry no changes since this date.
- Property Register: Describes extent of property by reference to title plan and rights benefiting it, either -
Extracted: Set out everything - no need to obtain copies, e.g. nature of easement (right of way),
location (refer to title plan) and restrictions (on foot).
Not extracted: Seller’s solicitor sends copies of annexed documents to the buyer’s solicitor with
the official copies and title plan (or buyer gets directly from Land Registry).
- Proprietorship Register:
Class of Title: Depends on how satisfied registrar is of claim to ownership. 4 classes (S.9 LRA 2002)):
Full Title: True and proper owner, just need to report to owner, lenders insist on this.
- S.9(2): Registered with title absolute if registrar believes a competent professional adviser
would advise the buyer could accept the title.
- Sch 8: If wrong, Land Registry indemnifies.
- S.62: Land Registry will upgrade if to this if find docs.
- S.1 LP(MP)A 1994: Covenants to be implied on disposition of property:
S.2: Seller has implied right to dispose and give title.
S.3(1): Free from charges and incumbrances (except those x reasonably known).
Limited Title: Established for limited period or subject to reservations (missing documents).
- S.1 LP(MP)A 1994: Covenants to be implied on disposition of property:
S.3(3): Implies seller has not charged or incumbered the property during ownership.
S.6(1) and (2): Seller will not be liable under the covenants implied by virtue of S.2 and S.3 or for
anything the buyer knew / necessary consequence of the facts the buyer knew.
Possessory Title: In actual possession or in receipt of rent but no documentary evidence –
squatter.
Good Leasehold: Leaseholder unable to provide evidence of landlord’s title.
Registered Proprietor’s Details
o Individual: Must sign contract and purchase deed.
o Company: Must sign contract and purchase deed. Check authority to sign, A’s / objects give
power to sell, company number at CH (if changed name send change of name certificate to Land
Registry) and solvent.
, o LLP: Must sign contract and purchase deed – 2 members or 1 member and a witness.
o Personal Representative: If sole owner dies then PR appointed in will. Power comes from Grant
of Representation – need to send this to Land Registry (don’t need death certificate). PR
executes contract and purchase deed (exception to rule that need 2 trustees).
o Joint owners: Legal title always held as joint. Beneficial can be joint or T in C.
- Identify T in C: Restriction in Proprietorship Register: “No disposition by a sole
proprietor…unless authorised by an order of the court”.
Joint and 1 Dies: Legal and beneficial pass to survivor. All surviving must execute
contract and deed. Send death certificate to land registry.
2 x T in C and 1 Dies: Legal passes to survivor but beneficial passes via will or
intestacy rules. Need to overreach deceased’s BI by appointing second trustee in
Deed of Appointment (no longer sole proprietor). Both execute contract and deed.
Send death certificate and Deed of Appointment to Land Registry.
3+ T in C and more than 1 survives: All surviving must execute contract and deed.
Send death certificate to land registry.
- Mortgages
Joint and several liability.
Get sale value based on declaration of trust.
Separate and want to remain in property - need a transfer of equity. Bank must be
joined to this to release outgoing owner from covenants. Remaining co-owner
covenants to be fully responsible.
- Forcing a Sale
S.14 TOLATA: Can use to force sale.
S.15 TOLATA: Court will consider:
- Intention of persons who created the trust
- Purpose for which property is held (order sale if purpose ended – marital home).
- Welfare of minors in occupation
- Interests of secured creditors / beneficiary
- Charges Register:
Mortgages
o Must be created by deed.
o Charges Register: Date of mortgage deed & registration and name & address of mortgagee.
o Proprietorship Register: “No disposition without the consent of the proprietor of the charge”.
o Send proof of discharge to Land Registry to removes restriction.
o Only need lender’s consent if selling part (as then mortgage won’t be discharged).
Restrictive Covenants
S.78 and S.79 LPA 1925: Attach to land so PWB can enforce against successors in title.
If not extracted, obtain copy from seller or Land Registry.
If Continuing Past Breach –
1. Ask seller if have obtained PWB consent – if so then no breach
2. Ask seller to obtain RC insurance covering successors (seller pays as title is defective
without), covers loss in value of property and legal costs in perpetuity (passes to future
owners).
, 3. If insurance not economical or available – approach PWB for retrospective consent (likely to
charge). Do after insurance attempt as alerts to existence of RC – will not insure.
4. Apply to Upper Tribunal (Lands Chamber) under S.84 for waiver, discharge or modification–
expensive and impractical if need to exchange in a few weeks. Only allow if:
Change of character / neighbourhood means RC now obsolete, will look at planning
permission for neighbourhood
Impedes reasonable public or private use or does not secure practical benefit for
PWB
Proposed change would not injure PWB
If Future Breach –
1. Advise buyer to obtain quote for RC insurance.
2. If not feasible approach PWB for release of the covenant – likely to charge.
3. Upper Tribunal (Lands Chamber) as last resort.
PWB could apply for -
- Injunction: Prohibitory or mandatory
- Damages in lieu of injunction (small injury, can estimate financial value, adequately
compensated by small financial payment, injunction would be oppressive).
Longer breach goes on, less likely to be granted.
Positive Covenants
Do not run with the land but effectively do through chain of indemnity covenants.
Indemnity Covenants: Buyer agrees to indemnify seller for loss resulting from buyer’s breach.
SCPC 7.6.5 requires buyer to give indemnity covenant.
If Past Breach: Condition in contract requiring remedy pre-completion or reduction purchase
price.
If refuse or Future Breach: Ask seller if PWB consent, require seller obtain PC insurance or
approach PWB (Upper Tribunal NOT an option).
Schedule 3 LRA 2002: Unregistered interests overriding registered dispositions
Para 3: Easements – A legal easement, meaning it must be registered in the Charges Register of the
burdened land (S.27(2)(d)) or openly enjoyed if created before October 2003 (Sch 12, Para 9).
Para 1: Leases - Under 7 years or under 21 years if before October 2003 (Sch 12, Para 12) – no need
to be noted in Charges Register to be binding.
Para 2: Interests of persons in actual occupation - Need to get them to sign a waiver of interest
and agreement to vacate before completion (cross-refer to this in contract).
Issues in Title Investigation
Property Register (Rights)
Right of Way
- If set back from public highway then need right of way – benefit in Property Register. ADVISE ON -
Adequacy: Report existence and check if on foot only / disrepair – need vehicle access?
Maintenance: Obligation to contribute to maintenance of privately-owned road as a matter of
common law. Ask Seller if ever contributed to maintenance (how much and how often) – 3 years
but further back if ad hoc contributions.
Adoption: LA can call for private road (that is subject to the easement) to be brought under LA
control, cost of bringing up to adoptable standard borne by the frontagers. Con 29 reveals plans.
Process of Title Investigation
Seller’s Solicitor: Deduction of title - collate title documents to ensure seller owns the property and is entitled
to sell.
Buyer’s Solicitor: Investigation of title (may get a set of official copies and title plan direct from Land Registry
rather than waiting for Seller’s solicitor to send). Ensure no defects in title affecting ability to sell in future.
TITLE DOCUMENTS
Title Plan: Image showing the boundaries of the property
Official Copies of the Register (and any documents referred to in official copies).
- Header includes the search from date (and time). Ensure not more than 1 year old and ideally less than 2
years. Check with Land Registry no changes since this date.
- Property Register: Describes extent of property by reference to title plan and rights benefiting it, either -
Extracted: Set out everything - no need to obtain copies, e.g. nature of easement (right of way),
location (refer to title plan) and restrictions (on foot).
Not extracted: Seller’s solicitor sends copies of annexed documents to the buyer’s solicitor with
the official copies and title plan (or buyer gets directly from Land Registry).
- Proprietorship Register:
Class of Title: Depends on how satisfied registrar is of claim to ownership. 4 classes (S.9 LRA 2002)):
Full Title: True and proper owner, just need to report to owner, lenders insist on this.
- S.9(2): Registered with title absolute if registrar believes a competent professional adviser
would advise the buyer could accept the title.
- Sch 8: If wrong, Land Registry indemnifies.
- S.62: Land Registry will upgrade if to this if find docs.
- S.1 LP(MP)A 1994: Covenants to be implied on disposition of property:
S.2: Seller has implied right to dispose and give title.
S.3(1): Free from charges and incumbrances (except those x reasonably known).
Limited Title: Established for limited period or subject to reservations (missing documents).
- S.1 LP(MP)A 1994: Covenants to be implied on disposition of property:
S.3(3): Implies seller has not charged or incumbered the property during ownership.
S.6(1) and (2): Seller will not be liable under the covenants implied by virtue of S.2 and S.3 or for
anything the buyer knew / necessary consequence of the facts the buyer knew.
Possessory Title: In actual possession or in receipt of rent but no documentary evidence –
squatter.
Good Leasehold: Leaseholder unable to provide evidence of landlord’s title.
Registered Proprietor’s Details
o Individual: Must sign contract and purchase deed.
o Company: Must sign contract and purchase deed. Check authority to sign, A’s / objects give
power to sell, company number at CH (if changed name send change of name certificate to Land
Registry) and solvent.
, o LLP: Must sign contract and purchase deed – 2 members or 1 member and a witness.
o Personal Representative: If sole owner dies then PR appointed in will. Power comes from Grant
of Representation – need to send this to Land Registry (don’t need death certificate). PR
executes contract and purchase deed (exception to rule that need 2 trustees).
o Joint owners: Legal title always held as joint. Beneficial can be joint or T in C.
- Identify T in C: Restriction in Proprietorship Register: “No disposition by a sole
proprietor…unless authorised by an order of the court”.
Joint and 1 Dies: Legal and beneficial pass to survivor. All surviving must execute
contract and deed. Send death certificate to land registry.
2 x T in C and 1 Dies: Legal passes to survivor but beneficial passes via will or
intestacy rules. Need to overreach deceased’s BI by appointing second trustee in
Deed of Appointment (no longer sole proprietor). Both execute contract and deed.
Send death certificate and Deed of Appointment to Land Registry.
3+ T in C and more than 1 survives: All surviving must execute contract and deed.
Send death certificate to land registry.
- Mortgages
Joint and several liability.
Get sale value based on declaration of trust.
Separate and want to remain in property - need a transfer of equity. Bank must be
joined to this to release outgoing owner from covenants. Remaining co-owner
covenants to be fully responsible.
- Forcing a Sale
S.14 TOLATA: Can use to force sale.
S.15 TOLATA: Court will consider:
- Intention of persons who created the trust
- Purpose for which property is held (order sale if purpose ended – marital home).
- Welfare of minors in occupation
- Interests of secured creditors / beneficiary
- Charges Register:
Mortgages
o Must be created by deed.
o Charges Register: Date of mortgage deed & registration and name & address of mortgagee.
o Proprietorship Register: “No disposition without the consent of the proprietor of the charge”.
o Send proof of discharge to Land Registry to removes restriction.
o Only need lender’s consent if selling part (as then mortgage won’t be discharged).
Restrictive Covenants
S.78 and S.79 LPA 1925: Attach to land so PWB can enforce against successors in title.
If not extracted, obtain copy from seller or Land Registry.
If Continuing Past Breach –
1. Ask seller if have obtained PWB consent – if so then no breach
2. Ask seller to obtain RC insurance covering successors (seller pays as title is defective
without), covers loss in value of property and legal costs in perpetuity (passes to future
owners).
, 3. If insurance not economical or available – approach PWB for retrospective consent (likely to
charge). Do after insurance attempt as alerts to existence of RC – will not insure.
4. Apply to Upper Tribunal (Lands Chamber) under S.84 for waiver, discharge or modification–
expensive and impractical if need to exchange in a few weeks. Only allow if:
Change of character / neighbourhood means RC now obsolete, will look at planning
permission for neighbourhood
Impedes reasonable public or private use or does not secure practical benefit for
PWB
Proposed change would not injure PWB
If Future Breach –
1. Advise buyer to obtain quote for RC insurance.
2. If not feasible approach PWB for release of the covenant – likely to charge.
3. Upper Tribunal (Lands Chamber) as last resort.
PWB could apply for -
- Injunction: Prohibitory or mandatory
- Damages in lieu of injunction (small injury, can estimate financial value, adequately
compensated by small financial payment, injunction would be oppressive).
Longer breach goes on, less likely to be granted.
Positive Covenants
Do not run with the land but effectively do through chain of indemnity covenants.
Indemnity Covenants: Buyer agrees to indemnify seller for loss resulting from buyer’s breach.
SCPC 7.6.5 requires buyer to give indemnity covenant.
If Past Breach: Condition in contract requiring remedy pre-completion or reduction purchase
price.
If refuse or Future Breach: Ask seller if PWB consent, require seller obtain PC insurance or
approach PWB (Upper Tribunal NOT an option).
Schedule 3 LRA 2002: Unregistered interests overriding registered dispositions
Para 3: Easements – A legal easement, meaning it must be registered in the Charges Register of the
burdened land (S.27(2)(d)) or openly enjoyed if created before October 2003 (Sch 12, Para 9).
Para 1: Leases - Under 7 years or under 21 years if before October 2003 (Sch 12, Para 12) – no need
to be noted in Charges Register to be binding.
Para 2: Interests of persons in actual occupation - Need to get them to sign a waiver of interest
and agreement to vacate before completion (cross-refer to this in contract).
Issues in Title Investigation
Property Register (Rights)
Right of Way
- If set back from public highway then need right of way – benefit in Property Register. ADVISE ON -
Adequacy: Report existence and check if on foot only / disrepair – need vehicle access?
Maintenance: Obligation to contribute to maintenance of privately-owned road as a matter of
common law. Ask Seller if ever contributed to maintenance (how much and how often) – 3 years
but further back if ad hoc contributions.
Adoption: LA can call for private road (that is subject to the easement) to be brought under LA
control, cost of bringing up to adoptable standard borne by the frontagers. Con 29 reveals plans.
