Investigation of title - Identifying and resolving title issues

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Overview

Examining title is a vital part of property transactions, central to the SQE1 FLK2 exam. It involves verifying ownership, identifying possible encumbrances, and ensuring the property's marketability. This guide covers the examination of registered and unregistered land and explores methods for overcoming challenging title issues. Thorough knowledge of these topics is essential for aspiring solicitors, forming the core of conveyancing practice.

Description: A detailed guide on examining title for SQE1 FLK2, covering registered and unregistered land, encumbrances, and strategies for addressing title issues.

Legal Framework and Statutory Context

Title examination is mainly governed by the Land Registration Act 2002 (LRA 2002), a fundamental element of modern land registration in England and Wales. Key sections include:

  1. Section 29: Vesting of legal title upon registration
  2. Section 58: Principle of title guarantee
  3. Schedule 3: Overriding interests affecting a registered estate

Understanding these provisions is a key part of the SQE1 FLK2 curriculum.

Registered and Unregistered Land: A Comparative Analysis

Registered Land

Under LRA 2002, registered land provides a straightforward approach to examining title. The Land Registry holds a central database offering definitive proof of ownership and interests affecting the property.

Key procedures for examining registered land include:

  1. Obtaining official copies of the register and title plan
  2. Checking the proprietorship register for ownership details
  3. Examining the charges register for financial obligations
  4. Reviewing the property register for rights and restrictions

The case of Sainsbury's Supermarkets Ltd v Olympia Homes Ltd [2005] emphasizes the importance of thorough examination of the register.

Unregistered Land

Examining unregistered land is more involved, relying on historical deeds to determine ownership and encumbrances.

Key steps include:

  1. Identifying a good root of title (at least 15 years old)
  2. Reviewing the chain of title deeds
  3. Verifying property descriptions and boundaries
  4. Investigating off-title matters through inquiries and searches

Wigginton & Milner Ltd v Winster Engineering Ltd [1978] highlights the precision needed in unregistered land transactions.

Establishing a Good Root of Title

For unregistered land, establishing a solid root of title is essential. It should:

  1. Cover the entire legal and equitable estate
  2. Provide a clear property description
  3. Offer no doubts about the title
  4. Be at least 15 years old

As Lord Wilberforce remarked in Woolwich Building Society v Marshall [1952]: "Title means the whole set of rights that make up ownership." This comprehensive view is critical when examining historical documents.

Identifying and Analyzing Encumbrances

Encumbrances can affect the property's use or value. Common types include:

  1. Easements and rights of way
  2. Restrictive covenants
  3. Leases
  4. Mortgages and charges

Example: Easements and Their Impact

Consider purchasing a commercial property for development when an easement is discovered. This easement for a neighboring property could affect your plans. The solicitor must:

  1. Confirm the easement's validity
  2. Evaluate its impact on property use
  3. Consider modifying or removing the easement

Coventry v Lawrence [2014] guides the court's approach to easements, weighing property rights against public interest.

Resolving Title Issues: Strategies and Considerations

Solving title issues requires a thoughtful approach, balancing legal, practical, and commercial factors.

Negotiation and Agreement

Many title discrepancies can be settled through negotiation. For example, facing a restrictive covenant that limits commercial use, the buyer's solicitor could negotiate with the covenant holder for a release or adjustment.

Indemnity Insurance

Title indemnity insurance offers protection against some title defects. Instances for its use include:

  1. Missing documents in the title chain
  2. Restrictive covenant breaches
  3. Absence of planning permission

However, it's not a cure-all. Shebelle Enterprises Ltd v Hampstead Garden Suburb Trust Ltd [2014] highlights its limitations, especially with known breaches.

Statutory Solutions

Various statutes can help resolve title problems:

  1. Section 84 of the Law of Property Act 1925 allows changing or nullifying restrictive covenants.
  2. The Limitation Act 1980 enables extinguishing certain rights after set periods.
  3. The Land Registration Act 2002 provides ways to correct registration errors.

Example: Resolving a Boundary Dispute

If a boundary dispute arises, affecting the buyer's plans, the solicitor might:

  1. Arrange a detailed survey
  2. Negotiate an agreement with the neighbor
  3. Use alternative dispute resolution methods
  4. Apply to the Land Registry for a determined boundary under LRA 2002

This process highlights the combination of legal knowledge and practical problem-solving in title examinations.

Conclusion

Title examination is a complex but essential aspect of property transactions, requiring a strong understanding of property law, statutes, and case law. Key points for SQE1 FLK2 candidates include:

  1. Differentiating between registered and unregistered land
  2. Establishing a solid root of title for unregistered land
  3. Understanding encumbrances and their effects
  4. Using negotiation, indemnity insurance, and statutory solutions for resolving issues
  5. Applying legal principles practically, as illustrated in case law

By refining these elements, upcoming solicitors can manage title examinations effectively, both in exams and legal practice.