Learning Outcomes
After reading this article, you will be able to identify and apply the correct procedures for investigating title to freehold property, including analysing title deeds, establishing a good root of title, and determining whether third-party rights or interests (legal and equitable) will bind a purchaser. You will gain clarity on protecting and enforcing interests, the use of land charges, and the continued role of the doctrine of notice, essential for SQE2 exam success.
SQE2 Syllabus
For SQE2, you are required to understand freehold real estate law and practice with a focus on practical investigation of title. You must be able to determine whether the seller has a good title to sell, which rights are binding, and how to advise clients on these issues. In your revision, focus on:
- Conducting effective investigation of title for freehold property
- Assessing sufficiency of documentary title and identifying a good root
- Recognising and protecting legal and equitable third-party rights
- Applying the Land Charges system to unregistered land
- Enforcing and binding third-party interests, including the doctrine of notice and overreaching
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.
- What minimum chain of documents must a seller provide to prove a good root of title to unregistered freehold land?
- What is the effect of failing to register a C(iv) Land Charge in respect of an estate contract?
- Name two types of third-party rights commonly encountered in title investigation and state whether they are legal or equitable.
- In what circumstances does overreaching protect a purchaser of a freehold property from a beneficiary’s equitable interest?
Introduction
The investigation of title is a core step in freehold property transactions. For SQE2, you must advise on whether a seller has a “good title” to convey, spot potential issues, and confirm which third-party rights will bind the buyer. This involves carefully analysing the chain of title, examining both legal and equitable rights, and ensuring binding interests are properly protected or overreached.
Title Deeds and the Good Root of Title
A fundamental element in title investigation for freehold property—especially for unregistered land—is production of the “root of title.”
Key Term: title deeds
The bundle of documents evidencing successive transfers and interests showing ownership of an unregistered property.Key Term: good root of title
A conveyance or transfer deed at least 15 years old that clearly describes the property, deals with the whole legal and beneficial estate, and does not cast any doubt on title.
A seller must be able to demonstrate uninterrupted ownership by providing an unbroken chain of title deeds dating back at least 15 years. The root of title is usually a conveyance for valuable consideration; gifts or assents are generally weaker, as they lack prior investigation.
Worked Example 1.1
The owner produces only an assent dated six years ago, transferring the estate to her from a parent who had no earlier deeds. Is this sufficient as a root of title?
Answer:
No; an assent is not a strong root of title, and there is no documentary chain showing good title for at least 15 years. Further deeds will be required.
Document Examination and Pre-Contract Checks
When investigating title, review whether the root document deals with the entire property, is properly executed, contains a clear property description, and is free from restrictive wording or doubt. Investigate any references to pre-root documents if they create ongoing rights (e.g., covenants, easements) and request copies where necessary.
Verify the existence of undisclosed third-party rights (such as easements or covenants) and whether any interests revealed post-date the root.
Key Term: legal estate
An interest in land recognized by statute as capable of binding the world (including freehold, leasehold, certain easements, and mortgages).Key Term: equitable interest
An interest in land enforceable in equity, such as a restrictive covenant or a beneficial interest under a trust.
Protection of Third-Party Rights
During title investigation, you must determine whether third-party rights—both legal and equitable—will bind the buyer after completion.
- Legal rights generally “bind the world,” so a properly created legal easement or mortgage discovered in the title binds the purchaser, whether or not they have actual notice.
- Equitable rights need protection, typically by registration as a land charge. If an equitable right (e.g., an estate contract, restrictive covenant, equitable easement) falls within the Land Charges Act 1972, it must be registered against the estate owner’s name.
Key Term: land charge
A registered equitable right affecting unregistered land; unless registered as required, it may not bind a purchaser.
Where a right is not registrable as a land charge (e.g., beneficial interests under a trust), investigate whether the buyer is protected by overreaching or “Equity’s Darling.”
Key Term: doctrine of notice
A principle under which an equitable right binds a purchaser if the purchaser has actual, constructive, or imputed notice of the interest and is not a bona fide purchaser for value without notice.Key Term: overreaching
The mechanism by which a purchaser paying the purchase price to two (or more) trustees can take land free of beneficial interests under a trust; those interests attach to the proceeds instead.Key Term: bona fide purchaser for value without notice
Also known as "Equity’s Darling," a purchaser in good faith who pays value for a legal estate and is not aware (actually, constructively, or by imputation) of an earlier unregistered equitable interest.
Worked Example 1.2
A restrictive covenant (created in 1982) was not registered as a class D(ii) land charge. The buyer knew about it. Is the purchaser bound?
Answer:
No; failure to register the land charge means it is void against a purchaser for value, even if the purchaser had actual notice. Registration is decisive here.
Worked Example 1.3
Jack pays the purchase price for unregistered land held by two trustees, but the property is subject to an equitable interest under a trust benefitting a third party. Will Jack take free of the interest?
Answer:
Yes; payment to at least two trustees overreaches the equitable interest. The beneficiary’s interest attaches to the sale proceeds, so Jack takes free.
Land Charges, Registration, and Binding Interests
For unregistered land, the effect of registration is critical.
Land Charges System
Check the Land Charges Register for relevant entries against every estate owner's name (as shown in the deeds). A registered charge (e.g., a class C(iv) for an estate contract, D(ii) for a restrictive covenant, D(iii) for an equitable easement, F for home rights, C(i) for a puisne mortgage) constitutes actual notice to all and binds even if the buyer never searched the register.
Unregistered interests not protected by registration may not bind a purchaser for value; the buyer may still be bound if they are a volunteer, or where the interest predates 1926 and the doctrine of notice still applies.
Doctrine of Notice and Constructive Inspection
If a right is not registrable, binding depends on the doctrine of notice. Advise clients to inspect the property, the deeds, and inquire of occupiers to avoid constructive notice.
Exam Warning
If a buyer fails to pay the price to two trustees where there is a trust, beneficial interests may still bind unless overreached. Always advise appointment of a second trustee.
Key Point Checklist
This article has covered the following key knowledge points:
- The investigation of title for freehold property involves producing an unbroken chain of title deeds with a good root at least 15 years old.
- Legal rights normally bind the world, but rare exceptions (e.g., puisne mortgages) require registration.
- Equitable rights must be properly protected, often through land charges registration, to bind purchasers for value.
- Failure to register a registrable charge generally renders the interest void against a buyer for value, even with actual notice.
- The doctrine of notice protects beneficiaries under trusts and some older interests; actual, constructive, or imputed notice can be relevant.
- Overreaching can protect buyers from certain equitable interests if the price is paid to at least two trustees, with the beneficial interest attaching to sale proceeds.
Key Terms and Concepts
- title deeds
- good root of title
- legal estate
- equitable interest
- land charge
- doctrine of notice
- overreaching
- bona fide purchaser for value without notice