#14746 - Unregistered Titles - Property Law and Practice

Unregistered Titles

Investigations

When investigating registered title remember SCRAPPED.

Searches

A number of searches must be carried out.

CLC Searches

CLC searches should be completed against all full names of all estate owners for the period of time they owned the property. If there is no definitive start date the earliest search date will be 1926. Beware of different names (i.e. common mistakes and previous surnames when marrying).

Company Search

Company Searches should be carried out against previous company sellers to make sure they owned the property and that they are solvent.

Index Map Search

An Index Map Search will be carried out over the land being purchased and the surrounding land to establish the boundaries of the land and identify the neighbouring properties.

Co-Ownership

If the property is co-owned and one of the co-owners has died then this can cause issues.

If the property was owned by Joint Tenants then the principle of survivorship applies, this means that the remaining Tenant can sell on their own. The joint tenancy will be severed if there is a bankruptcy order against one of the parties or a memorandum of severance exists.

If the property was owned by Tenants in Common (or if a joint tenancy has been severed), the principle of survivorship does not apply. In this case the remaining Tenant will need to appoint a second trustee to override the deceased Tenant’s rights. It will be the remaining Tenant’s duty to ensure the purchase monies go to the deceased’s estate.

Root of Title

There must be good root of title in order for the property to be sold. There are 4 factors which indicate a good root of title:

The conveyance must be at least 15 years old and signed before 1 December 1990. On this date land became compulsorily registrable. If the conveyance is dated post 1 December 1990 the property should have been registered and the property will need to be registered prior to it being sold to the buyer.

The conveyance must clearly identify the property and can refer to previous conveyances for the description or plan of the property.

The conveyance must deal with legal and equitable interests.

The conveyance must cast no doubt as to the seller’s title.

Ad Valorem Stamp Duty

The conveyance should have an Ad Valorum Stamp to show that stamp duty was paid. If the conveyance does not have this then it must have a certificate of value (i.e. stating that there is no stamp duty to be paid) and a PD stamp.

If the document does not have any of the above then the seller must rectify this so that the document can be relied upon in court as evidence (if required in the future).

Personal Representatives or Other Sellers

If the land is not being sold by the original owners and is being sold by a personal representative, there must be a statement in the transfer or conveyance allowing for this (s.36(6) AEA 1925).

If the property is being sold by a power of attorney then they must have authority to sell the land; checks should be done to ensure the authority has not been revoked and documents need to be checked. The same rules apply to trustees.

Positive & Restrictive Covenants & Easements

The positive covenants, restrictive covenants and easements should be checked in the same way as for registered land.

Positive covenants will only run with the land if there is an indemnity covenant in the conveyance. Checks should be made for past breaches (which should be rectified by the seller or the purchase price reduced for the buyer to do so) or insurance should be organised.

Restrictive covenants must be registered as a Class D(ii) Land Charge and will show up on the CLC searches for them to bind the land. Checks should be done to ensure there are no past or future breaches (in which case the seller should rectify the breach or obtain insurance).

Easements that benefit or burden the land must also be included checked to see if they are registered on the benefiting or burdening land. Searches should be done to investigate the titles of surrounding land and cautions against first registration should be checked. Any easements should be considered in the same way as...