Unregistered Land Title Investigation

• Deducing title in unregistered land involves scrutinizing past parchment or paper deeds, including conveyances, mortgages, assents, deeds of gift, and land charges searches.
• The seller's solicitor obtains title deeds from the client (if mortgage-free) or the mortgage lender (if mortgaged).
• The solicitor checks if any past transaction should have triggered first registration; if so, registration is required before further transactions.
• The buyer's lender will likely require this defect to be fixed before purchase completion.
• The solicitor identifies the 'root of title' document, the starting point for title investigation, typically the most recent document meeting good root of title requirements.
• Documents older than the root of title can generally be ignored, with exceptions for third-party rights created in earlier conveyances.
• The buyer can request earlier conveyances if the root document references third party rights, as they may be bound by them.

Epitome of Title

• The seller's solicitor prepares an 'epitome of title,' a numbered, chronological schedule of documents from the root of title to the present day, with copies attached.
• Before epitomes, an 'abstract of title,' a summary of all title documents, was common; both may be encountered, especially with older properties.

Requirements for a Good Root of Title

• According to Section 44 of the Law of Property Act (LPA) 1925, a root of title must:
  • Deal with or show ownership of the entire interest (legal and equitable) being sold.
  • Contain a recognizable description of the land.
  • Not cast doubt on the seller's title.
  • Be at least 15 years old.
• A conveyance on sale or legal mortgage is considered the most acceptable root of title, offering a double guarantee due to previous title investigation.
• The current buyer investigates the seller's title for a minimum of 15 years.
• The buyer under the root conveyance should have investigated title for at least 15 years prior to their purchase.
• A conveyance is generally preferred over a mortgage due to a plan and details of incumbrances.

Deeds of Gift or Assent

• If neither a conveyance nor mortgage is available, a deed of gift or an assent can be used.
• Title investigation is unlikely to have taken place for these kinds of documents.
• Deeds of gift or assent do not provide the double guarantee.
• Deeds of gift or assent are less satisfactory to a buyer when offered as roots of title.

Establishing Legal and Equitable Interests

• To establish whether a conveyance deals with both legal and equitable interests, look for a 'WHEREAS' paragraph stating the Vendor is 'seised of the property … for an estate in fee simple and is selling the same to the Purchaser'.
• The conveyance should also state that the Vendor conveys the land as 'beneficial owner … unto the Purchaser', indicating the entire legal estate and equitable interest is conveyed.

Checking Title Deeds in the Epitome

• Once the root of title is identified, the root and all subsequent title deeds must be checked in a systematic and thorough manner.
• Solicitors often read all title deeds multiple times, focusing on:
  • The chain of ownership.
  • Description of the land.
  • Stamp duties.
  • Incumbrances.
  • Execution.
  • Land charges searches.

Chain of Ownership

• An unbroken chain of ownership should exist from the root of title owner to the current seller.
• Legal estates are transferred by deed, requiring documentary evidence of each ownership change.
• The person acquiring the property in the root of title should be the same person transferring title in the next document.
• If the owner died, the property vests in their Personal Representatives (PRs), requiring the grant of probate to verify their authority to transfer title.

Description of the Land

• Title deeds must be checked to ensure the property description is consistent throughout.
• Plans in different title deeds do not always match, especially with conveyances of part.

Stamp Duty

• Stamp duty was payable on many conveyancing documents prior to December 2003, evidenced by embossed stamps.
• Conveyances on sale were liable to 'ad valorem duty', varying with the purchase price.
• Low-value transactions may have been exempt or liable to a reduced rate with a 'certificate of value'.
• Ad valorem stamp duty was not payable on mortgages after 1971, or on deeds of gift and assents after April 30, 1987 with a certificate.
• From 1931, Inland Revenue required some documents to have a 'particulars delivered' or 'PD' stamp, essential for proper execution.
• Stamp duty on property transactions was largely replaced by SDLT on December 3, 2003.

Incumbrances

• Each title deed should be checked for incumbrances like easements and covenants.
• Easements often appear in a conveyance beginning with the words ‘EXCEPTING AND RESERVING’.
• The words ‘SUBJECT TO’ also introduce an incumbrance, such as an obligation to pay towards the maintenance of a road.
• There might also be restrictive and positive covenants the buyers entered into on previous sales.

Execution

• Each document should be properly executed, typically as a deed per s 52 Law of Property Act 1925.
• A deed, as defined in s 1(2) Law of Property (Miscellaneous Provisions) Act 1989, must:
  • Be in writing.
  • Clearly state it is a deed.
  • Be signed by the grantor in the presence of a witness who attests the signature.
  • Be delivered as a deed.
• Before July 31, 1990, a deed required a seal and delivery.
• The seller always executes a conveyance to pass the legal estate.
• A buyer executes a conveyance if giving a new covenant or holding the land on trust, requiring a declaration about the trust.

Land Charges Searches

• Certain incumbrances, like restrictive covenants, bind unregistered land only if registered as a land charge at the Land Charges Department in Plymouth.
• The solicitor for the person benefiting from the incumbrance should register the land charge against the estate owner.
• Common land charges include:
  • C(iv): estate contract.
  • D(ii): restrictive covenant.
  • D(iii): equitable easement.
  • F: Home Right.
• Solicitors must make valid land charges searches against all estate owners in the epitome of title, pre-dating the root of title.
• The search uses form K15 for the period each estate owner owned the land, searching back to 1926 if uncertain.
• It is possible to rely on valid searches done by others in the past, on previous sales.