Workshop: Investigating title: unregistered land

On the rare occasion that you are dealing with unregistered land, whether it be for a sale or purchase, you will be required to investigate title to the property.

As you will be aware, it can be much more troublesome to establish your client’s ownership which may go back many years and involve various conveyances, transfers and deeds of gift. The general rule of thumb is that you need to establish a “Root of Title” which, as a minimum, must go back 15 years and show ownership of the whole legal and equitable interest in the land. It must adequately describe the property and not contain anything which may cause anyone to doubt ownership of that title.

It is the normal practice for the selling conveyancer to produce an epitome of title, which is a document that lists the documents comprising the title being sold. Copies of the relevant documents should also be produced. In some cases an abstract of title may be used which is a summary of all the documents comprised in the title. In some cases, if a conveyance cannot be located, a legal mortgage can provide a suitable alternative since the lender will not proceed with a loan without first investigating title themselves.

It is important to not just submit the ?root of title document when other documents which contain covenants or rights may be referred to and therefore ?form part of the title.

By far the easiest root of title is a conveyance to the selling party (even if earlier documents need to be disclosed also). In this case and from the outset, it is possible to establish that the seller has an interest in the land. The conveyance will also, either expressly or by reference to other documents, set out the rights granted or reserved, restrictive covenants and, have an adequate description of the property with a plan (hopefully).

The seller may have a mortgage, so apart from initially asking your selling client if there is a mortgage in existence, an investigation of the title deeds may reveal a mortgage document which may also show whether or not it has been redeemed. It is a good practice point to also include any mortgages and discharges in the epitome of title.

On some occasions, the seller may have obtained ownership following the death of previous owners. In these cases, it is important to produce evidence of devolution which would include death certificates, grants of representation and assents. The important overlying factor is to be able to show an unbroken chain of ownership from the root of title to the present day.

So, faced with an unregistered title, how can you be sure that what has been produced to you comprises the whole title? A land charges department search will reveal any encumbrances over the land such as estate contracts and home rights. If acting for the seller, it is prudent to carry out this search against your client to ensure that there are no bankruptcy or other proceedings pending.

You need to be careful about when this search is carried out as the protection offered by it is relatively short. If acting for the buyer you should make a search, at least, against the seller shortly prior to exchange in order to be sure that there are no bankruptcy or homes rights notices, for example. A further search will be carried out prior to completion.

It is also important to know when compulsory registration came into effect in the area you are dealing with. If you are presented with an unregistered title which shows a registerable disposition after compulsory registration came into effect then a first registration application must be made immediately by the seller’s solicitor.

Gradually, properties in England and Wales are becoming registered and, in my experience, transactions of unregistered land tend to be of larger and more complicated estates.