Investigation of title - Registered and unregistered titles

Learning Outcomes

After reading this article, you will be able to distinguish between registered and unregistered titles, explain the process for investigating each, identify the key documents and checks required, and advise on the practical implications for buyers, sellers, and lenders. You will also be able to spot common title defects and understand the remedies available in conveyancing transactions.

SQE1 Syllabus

For SQE1, you are required to understand the investigation of title in both registered and unregistered land. Focus your revision on:

• The distinction between registered and unregistered titles and why it matters in conveyancing.
• The process and documentation for investigating registered titles (including official copies and title plans).
• The process and documentation for investigating unregistered titles (including epitome of title and good root of title).
• Key risks, defects, and practical issues in title investigation.
• The implications for buyers, sellers, and lenders in property transactions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What documents must a seller provide to deduce title in a registered land transaction?
2. What is a “good root of title” and why is it important in unregistered land?
3. Name two key risks for a buyer when investigating an unregistered title.
4. True or false? A buyer can always raise requisitions on title after exchange of contracts.

Introduction

When acting in a property transaction, you must check that the seller owns what they are selling and that the buyer will receive good title. The method for investigating title depends on whether the land is registered or unregistered. For SQE1, you must be able to explain the differences, identify the correct documents, and advise on the practical steps and risks involved.

Registered Titles

Most land in England and Wales is now registered. The Land Registry maintains a central record of ownership and interests affecting registered land. Investigation of title in these cases is usually more straightforward.

Deduction and Investigation of Registered Title

The seller’s solicitor deduces title by providing the buyer’s solicitor with:

• Official copies of the register of title (less than six months old).
• The title plan.
• Official copies of any documents referred to in the register (such as deeds containing covenants or easements).

Key Term: official copies
Official copies are certified extracts from the Land Registry showing the current state of the title, including ownership, class of title, and any burdens or restrictions.

The buyer’s solicitor must check:

• The property description and boundaries match the contract and the buyer’s expectations.
• The seller is the registered proprietor.
• The class of title is “absolute” (the best class) or, if not, consider the implications.
• The charges register for mortgages, covenants, easements, leases, and notices.
• The proprietorship register for restrictions (such as a Form A restriction indicating co-ownership).

Key Term: class of title
The quality of the registered title, such as absolute, possessory, or qualified. Absolute title is the strongest and most common.

Practical Steps

• Check for any restrictions on dealings (e.g., lender’s consent, co-ownership).
• Ensure all burdens (e.g., restrictive covenants, easements) are specified in the contract.
• Raise requisitions on any unclear or adverse entries before exchange.
• Advise the buyer and lender of any risks or defects.

Worked Example 1.1

Scenario: You act for a buyer of a registered freehold house. The official copies show a restriction requiring the consent of a lender to any disposition. What should you do?

Answer:
You must ensure the seller’s solicitor provides evidence that the lender will consent to the sale and will discharge the mortgage on or before completion. This should be confirmed by an undertaking.

Unregistered Titles

A minority of land remains unregistered. Here, ownership is proved by a chain of paper documents. Investigation of title is more complex and riskier.

Deduction and Investigation of Unregistered Title

The seller’s solicitor deduces title by providing an epitome of title—a chronological list of documents (with copies) showing ownership from a “good root of title” to the present.

Key Term: epitome of title
A schedule of title deeds and documents (with copies) evidencing ownership of unregistered land, starting with a good root of title.

Key Term: good root of title
A document (usually a conveyance or mortgage) at least 15 years old, dealing with the whole legal and equitable interest in the property, with no defects or doubts as to title.

The buyer’s solicitor must:

• Check for an unbroken chain of ownership from the good root to the seller.
• Ensure all documents are properly stamped and executed as deeds.
• Check the property description is consistent throughout.
• Identify all burdens (e.g., covenants, easements) and ensure they are specified in the contract.
• Conduct Land Charges searches against all estate owners since 1926.

Key Term: Land Charges search
A search at the Land Charges Department against the names of previous owners to reveal registered burdens (such as restrictive covenants or equitable interests) that may bind the land.

Practical Steps (Unregistered Titles)

• Raise requisitions on any missing documents, inconsistencies, or defects.
• Check for evidence of discharge of old mortgages (e.g., a vacating receipt).
• Advise the buyer and lender of any risks, such as missing documents or unregistered burdens.
• Consider indemnity insurance if defects cannot be remedied.

Worked Example 1.2

Scenario: You act for a buyer of unregistered land. The epitome of title includes a conveyance dated 1990, a mortgage dated 1995, and an assent dated 2010. Which is the best candidate for a good root of title?

Answer:
The 1990 conveyance is the best candidate, as it is over 15 years old and likely to deal with the whole legal and equitable interest. The mortgage and assent are not as suitable.

Key Risks and Defects

Registered Land

• Restrictions or notices that prevent or delay registration of the buyer.
• Undisclosed burdens (e.g., overriding interests such as rights of occupiers in actual occupation).
• Mortgages not discharged on completion.

Unregistered Land

• Missing links in the chain of ownership.
• Unregistered burdens that may bind the buyer.
• Defective execution or stamping of documents.
• Undischarged mortgages or other financial burdens.

Exam Warning

If the buyer’s solicitor fails to investigate title thoroughly and defects are discovered after exchange, the buyer may have no remedy and must complete the purchase. Always raise all requisitions before exchange.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The distinction between registered and unregistered titles is fundamental in conveyancing.
• In registered land, title is proved by official copies from the Land Registry; in unregistered land, by an epitome of title starting with a good root.
• A good root of title must be at least 15 years old, deal with the whole interest, and not cast doubt on title.
• The buyer’s solicitor must check for an unbroken chain of ownership, proper execution and stamping, and all burdens affecting the property.
• Land Charges searches are essential in unregistered land to reveal registered burdens.
• All requisitions on title must be raised before exchange; after exchange, the buyer is usually bound to complete.
• Defects in title may be remedied by obtaining missing documents, undertakings, or indemnity insurance.

Key Terms and Concepts

• official copies
• class of title
• epitome of title
• good root of title
• Land Charges search