#3399 - Unregistered Title Crib Sheet - Property Law and Practice

Unregistered Title

1. Epitome

   1. All documents & events affecting ownership of land from root to present day must be included in epitome including

      1. Conveyances on sale & by gift

      2. Deaths & death certificates

      3. Grants of representation to deceased owner’s estates

      4. Change of name of estate owners

      5. Leases

      6. Mortgages

      7. Discharge of legal mortgages

      8. Documents prior to root which contain details of restrictive covenants affecting property

      9. Memoranda endorsed on documents of title

      10. Powers of Attorney under which a document within title has been executed

   2. On sale of whole require originals at sellers expense SCPC 6.1.3

   3. On sale of part just receive copies NOT originals

2. Root of Title

   1. 44 LPA 1925 Epitome commence with good root of title at least 15 years old

      1. Buyer bound by matters that would have been revealed by a title that begins with a good root

      2. Contract specify which document is to form the root of title & generally not possible to require evidence of title prior to root 45 LPA 1925

3. Links in the Chain

   1. Need an unbroken chain of ownership from root of title up to present seller

      1. Check dates & names spelt correctly on Land Charges Search

      2. Is there a power of attorney?

         1. 10 PAA 1971 gives a general power of attorney

         2. 5(2) PAA 1971 person who deals directly with an attorney will take good title provided he acquires in good faith without knowledge of revocation of the power

         3. Subsequent buyer will obtain protection under 5(4) PAA 1971 if

            1. Conveyance with attorney & person who dealt with him took place within 12 months of the grant of power OR

            2. Person who dealt directly with attorney made a statutory declaration before or within 3 months of completion of a subsequent purchase to the effect that he had no knowledge of the revocation of the power

               1. Solicitor should advise client immediately to make statutory declaration on day of completion of purchase from attorney

               2. Can obtain title defect insurance for no statutory declaration being in existence

      3. Does a document show property vested in joint tenants or tenants in common?

         1. Law Property (Joint Tenants) Act 1964 allows a buyer to assume no severance of joint tenancy before death provided

            1. No memorandum of severance endorsed on conveyance under which joint tnenats bought property

            2. No bankruptcy proceedings registered against names of either of joint tenants

            3. Statement in proposed conveyance that seller solely & beneficially entitled to land

         2. If cannot sell on own then need to appoint second trustee to overreach & dispose of any equitable interest in property

      4. Assents by PRs must be in writing in order to pass legal estate to beneficiary

         1. A buyer will take from PRs even if there has been a prior disposition by them provided

            1. Conveyance to buyer contains statement from PRs that they have not made any previous assent or conveyance of same land

            2. No memorandum of a previous conveyance or assent endorsed on grant

            3. No earlier conveyance of land

         2. On sale by PRs

            1. Inspect grant of probate to check authority

            2. Ensure all PRs joined in conveyance

            3. Check grant of probate contains no memorandum of a prior disposition

            4. Check conveyance contains a 36 AEA 1925 statement

            5. Check conveyance contains acknowledgment for production of grant

4. Stamp Duties

   1. Documents prior to 1 December 2003, necessary to ensure requirements for payment of stamp duty complied with

      1. Unstamped documents or incorrectly stamped are neither good roots of title nor good links in the chain

      2. 117 Stamp Act 1981 any contractual provision requiring buyer to meet cost of putting defect right will be void

      3. Conveyance on sale which does not have a certificate of value in it and does not bear an ad valorem stamp has not been correctly stamped

      4. Stamp duty does not have to be paid on mortgages executed after 1971

      5. Conveyance or transfer by way of gift executed after 30 April 1987 exempt from stamp duty provided contains certificate that exempt

      6. Power of attorney not liable for stamp duty 85 Finance Act 1985

      7. Documents that required a PD stamp were

         1. Conveyance on sale of freehold

         2. Grant of lease for 7 years or more

         3. Transfer on sale of lease of 7 years or more
            

5. Description of Land

   1. Check description of property corresponds with contract

   2. Consistent throughout epitome
      

6. Incumbrances

   1. Are restrictive covenants registered as D(ii) land charge before subsequent...