CHAPTER 1. Title Register ENGLAND & WALES UK LAND REGISTRY SERVICES. Also available for Scotland, N Ireland, Ireland, Isle of Man and Channel Islands

Transcription

1 En g l a n d & Wa l e s TI TLEREGI STER UKLandRegi st r yser vi ces

2 CHAPTER 1 Title Register ENGLAND & WALES UK LAND REGISTRY SERVICES Also available for Scotland, N Ireland, Ireland, Isle of Man and Channel Islands

3 SECTION 1 Title Register Law Section Contents TITLE REGISTER SEARCH Title Register search Statutes and Statutory Instruments Statutory Content of Register Subsisting Entries Prior Copies Day List This search includes the following documents: 1. Title Register 2. Details of Pending Applications for registration (if there are any) 3. Index Map Search Result (if needed) STATUTES AND STATUTORY INSTRUMENTS Buy Searches referred to in this Section Title Register Search The law regulating the content of HM Land Registry Title Registers in England and Wales is governed by the Land Registration Act 2002 and Land Registration Rules Rule 5(a) of the Land Registration Rules states that the property register for the registered land Statute law is made by Parliament as substantive legislation and operates as made or as amended by further statutes. 2

4 Statutory Instruments are Parliament s way of providing a vehicle for delegated legislation. The Instrument provides the framework for provisions to be made by a minister of the Crown or other approved body. must contain a description of the land and refer to a p l a n w h i c h should be based on the Ordnance Survey map and should be known as the Title Plan. These two documents comprise the Title documents, although they are often supplemented with copies of deeds that have been created to formalise, or which include, agreements between the buyer and seller, adjoining land owners or third parties. These Deeds usually relate to covenants, restrictions and easements and can be very detailed. Proprietorship Register Charges Register (if there are any charges). Rule 4 continues by stating that entries in any of these registers may be made by reference to a plan or other documents, in which case the Land Registrar must keep the original or copy of that document SUBSISTING ENTRIES Rule 4 (4) states that the Land Registrar may, and in practice does, make a new edition of the register so that it shows the subsisting entries only, i.e. each time there is a change made to the register it is updated and the outdated information is removed. Thus the Register shows the current property owner and the current mortgages, and no direct details of prior ownerships or prior mortgages. PRIOR COPIES STATUTORY CONTENT OF REGISTER Rule 4 of the Land Registration Rules 2003 sets out the main contents of The Register and states that it should consist of 3 Registers: Prior copies of the Title Register are available back to April 1993 for persons interested in discovering previous ownerships and other prior entries in the register. Such editions of the register are known as Historical Editions. Prior copies are available by ordering the History Search Property Register DAY LIST 3

5 Whenever an application is made to change the register an entry is made by HM Land Registry in the Day List. This is a list of p e n d i n g a p p l i c a t i o n s a n d r e c o r d s applications such as: To order a Day List Search click Pending Applications Search. Registration of a new purchase Registration of a new mortgage An official search with priority Entries in the day list will be removed once the register has been updated. Sample created similar to that in a Day List Whenever a title register search is carried out the Day List should also be searched. When the title register is sent to a customer any entries appearing in the day list will also be sent. This may be of particular relevance where the property has recently been sold but has not yet been updated with the purchaser s details. The Land Registry strive to make changes to the register as quickly as possible. The length of time this may take depends on whether the property was previously registered or whether the current application will be the first registration. First time applications always take longer, particularly as the Land Registry may have to raise questions about the title with the purchaser s solicitors, or require further documents to complete the registration. Customers who know that there has been a recent purchase should wait about 4 weeks from the date of completion of the purchase before applying for an up to date copy of the title register. 4

6 SECTION 2 Contents of Register Section Contents SECTION A Section A Section B Classes of Title Name of Owner Address of Owner Restrictions Notices Positive Covenants Purchase Price Section C Freeholds and Leaseholds References to Deeds Schedules Other Data in the Register Rule 5 of the Land Registration Rules dictates the type of information that should be stored in the property register (Section A), which is the first section of the register. Rule 5 demonstrates the importance of using the title register and title plan together in looking at the description of a property. Where a property has a full property address the exercise is fairly straight forward, but where the property consists of a field or similar the importance of describing the property by reference to a plan is of major significance. Buy Searches referred to in this Section Deeds Search Lease Search Mines and minerals are often excluded from the title as these may either be owned by the Crown or have been sold off with a separate title. Section A is the part of the register that details matters that benefit the land, such as easements which are private rights to use another s property without owning it, and such as a right of way over adjoining land, a right of light, right of access or right of support. A right of way recorded in section A is one in favour of the owner of the title. If it were referred to in section C instead, then it would be a right that 5

7 would encumber the land, i.e. it would be in favour of your neighbour and provide rights over your property. Likewise, the rights, privileges, conditions and covenants recorded in section A are all matters that benefit the land. Where the property is of a leasehold tenure section A will also contain sufficient particulars of the lease to enable it to be identified (Rule 6). Copies of the lease can be obtained by the leaseholder or freeholder of the property using the Lease search. SECTION B Summary of Contents of A Section of the Register description of the land with reference to the title plan details of any exclusions from the title, such as mines and minerals particulars of Lease (if leasehold) agreements and declarations statement that the landlord s title is registered (if leasehold) matters that benefit the land such as easements rights privileges conditions covenants party wall declarations Rule 8 of the Land Registration Rules defines the contents of the B section of the register, known as the proprietorship register. Classes of Title There are 4 classes of title: 1.! absolute freehold or absolute leasehold 2.! good leasehold 3.! possessory freehold or possessory leasehold 4.! qualified freehold or qualified leasehold Absolute is the best class of title available and is equivalent to outright ownership. Most classes of title will fall under this category. A property with an absolute title is one that can be described as safe to purchase for purchaser should obtain an unfettered title. Sample created similar to that in a Title Register 6

8 Summary of Contents of B Section of the Register class of title name of the owner address for service of the owner restrictions notices positive covenants purchase price (or value declared) registration the purchaser may not have been able to show a good root of title. Name of owner Registration of the owner s name under Rule 8 applies whether the owner is an individual or company. In the case of a company the company s registered number would also be recorded. Good leasehold title is given where the title from which it derives (the freehold title or superior leasehold title) has not itself been examined by the Land Registry (as where the freehold title is itself unregistered); thus the Land Registry are unable to guarantee that the lease creating the good leasehold title was validly granted. Possessory title is given where the owner of a property with unregistered title has lost the deeds, or where they have been destroyed, e.g. by fire. This class of title is also given following a successful claim for adverse possession, i.e. where someone has used the property as their own for a continuous period of at least 10 years and where their use thereof has not been interrupted. Address of Owner The address of the owner is the address where that owner can be served with documents. Not all property owners reside in their property; many are landlords and reside elsewhere. In an attempt to combat property fraud HM Land Registry now allow up to 3 different addresses for service for each owner of the property. This can include an address and an address Abroad. Upon an application to change the register the Land Qualified title is the least desirable title to have and is given where the title to the property is defective, e.g. on first Sample created similar to that in a Title Register 7

9 Registry will contact the owner at all addresses for service registered with them. They produce an information guide that is available free from their website and provides more detail on how to protect your property from fraud. Restrictions Restrictions on an owner s power to sell will also appear in this part of the register. An example of such a restriction would be where there are joint owners who hold the property as tenants in common. A restriction would be recorded to show that a disposition of the property cannot be registered without the consent of each owner, unless authorised by the court. The wording would appear as follows: The purpose of registration of Restrictions and Notices is to put third parties on notice that the right of an owner to make a disposition may be fettered. Positive Covenants Positive Covenants do not run with the land but affect only the current owner. It is for this reason that they are distinguished in their placement within the register from restrictive covenants that appear in the C section. A vendor s conveyancer would normally require a new purchaser to enter into a similar positive covenant to ensure that the covenant continues, and to indemnify the vendor against any future breach or nonobservance thereof. RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the Registrar or the court. Notices An example of a Notice is where a creditor has obtained a judgment against an owner of the property and then obtained a charging order to secure a debt. This would be registered as a Unilateral Notice in accordance with section 32 Land Registration Act Another example is a Bankruptcy Notice, which would be applied for by the trustee in bankruptcy. Purchase Price From April 2003 the purchase price of the property is also recorded. If the consideration for the purchase was something other than money, e.g. the natural love and affection of the vendor for the purchaser, instead of the purchase price the purchaser would instead estimate its value and that would be recorded. Prior to 1993 the purchase price was not recorded. Sometimes the purchase price is omitted, e.g. where many properties were purchased and have been recorded on the same title, and where it would be difficult to determine the purchase price or value of each separately. 8

10 SECTION C FREEHOLDS AND LEASEHOLDS Section C deals with matters that incumber the property. Rule 9 of the Land Registration Rules determine the content of the C section of the Register, also known as the Charges Register. The following appear under this section, where they exist: leases charges other interests adversely affecting the property restrictions relating to charges notices relating to charges Where a lease has been granted in respect of the property details of that lease will appear in this section. Where a property has both a freehold title and a leasehold title, people looking for certain information may be undecided as to whether to obtain a copy of the leasehold title or whether to obtain a copy of the freehold title. This is of particular relevance where a person wishes to know who to contact for details of a ground or chief rent, or for details of a lease. As will be seen from the above, freehold titles will include details of any registered leasehold titles in the C section of the register. The freehold title, of course, will show the name and address of the owner of the freehold title, and it will be that owner to whom payment of the ground rent should be paid. The individual leasehold title registers will contain details of that title s lease only. This will appear in the A section and will contain the date of the lease, its length (term), the amount of ground rent payable, and the parties to the lease. If the landlord s title is also registered there will usually be a statement to this effect. Sample created similar to that in a Title Register 9

11 REFERENCES TO DEEDS The Land Registry do not always iterate on the Register all of the detail contained in deeds that affect the property. Sometimes only brief details of the salient points will be provided, and beneath the paragraph containing those details will appear wording similar to copy filed or copied into the certificate. Where this is the case the Land Registry are obliged to keep copies of the deeds and these are usually held on their computers. These deeds are available for purchase where one wishes to view their entire content. Using the Deeds search you can obtain copies of all the deeds referred to in this manner. The property, proprietorship and charges registers may contain one or more schedules before the commencement of the next section, e.g. the proprietorship register may contain a schedule of personal covenants. It is often more convenient to list matters such as these in a schedule at the end of the section. The charges register may contain a schedule of restrictive covenants, a schedule of leases and/or a schedule of exceptions and reservations. OTHER DATA IN THE REGISTER Prior to the 3 main sections of the title register a note is made by the Land Registry of some important information. This includes the registered title number, and the name of the Land SCHEDULES Highlighted text shows Title No and LR Office Sample created similar to that in a Title Register Sample created similar to that in a Title Register 10

12 Registry office dealing with that property (which in this sample we have highlighted in green). 11

13 SECTION 3 Caution Titles Section Contents TITLE REGISTER SEARCH Title Register Search What is a Caution Title? Obtaining a copy of the Caution Title Our Title Register search should be used to obtain a copy of the Caution Title Register and/or Caution Title Plan. The comment box on the application form should be used to say that you require a copy of the Caution Title if the property is unregistered and our Index Map search indicates that there is a Caution Title. It includes the following documents: 1. Caution Title Register 2. Details of Pending Applications for registration (if there are any) 3. Caution Title Plan 4. Index Map Search Result (if needed). WHAT IS A CAUTION TITLE? Buy Searches referred to in this Section Title Register Search (use for a Caution Title) Cautions against first registration are registered as a Caution Title where a property is unregistered and where a person other than the owner claims an interest in the property. This may happen, for example, where a creditor has obtained a charging order from the court and wishes to secure it by registration of a Notice against the property. The registration will proceed once the property becomes registered, and until then notice to a potential purchaser, mortgagee or any other person having an interest in the property is provided by including a note of the caution in the Index Map (SIMR). 12

14 One can therefore see the importance of carrying out this conveyancing search whenever one is dealing with unregistered property. Caution Titles are similar to Title Registers in their layout and are likewise accompanied by a Title Plan. The A section still relates to the Property. The B section relates to the cautioner, rather than the owner. This does not replace the owner s interest, as the owner s interest has not yet been registered. When first registration of the owner s interest is imminent, e.g. when the property is being sold or mortgaged, the solicitors for the owner will usually first deal with the cautioner s interest so that a title clear of this interest will be created for the new purchaser. OBTAINING A COPY OF THE CAUTION TITLE A copy of a Caution Title can be made using the Title Register search, if you know the Caution Title Number (use the Caution Title number on the application form rather than the property title or address, and state in the comment box that your application is for a Caution Title). 13

15 SECTION 4 Using the Title Register Section Contents Title Number Land Registry Offices Date the Property was Built Date of Purchase Property Address Exclusions from the Title Leasehold Titles and the Leaase Rent Charges, Chief Rents and Grount Rents Ownership Purchase Price Referenced Deeds Restrictions Tenants in Common and Joint Tenants Mortgages and Charges Easements Restrictive and Personal Covenants Schedules Lost Deeds TITLE NUMBER Sample created similar to that in a Title Register Buy Searches referred to in this Section Title Register Search Deeds Search Title Register Search (No Address) A unique Title Number is allocated by the Land Registry to each and every property that is registered. This identifies the property and distinguishes it from other properties having similar addresses. If you have a property s Title Number this is all that is required to identify it and to obtain copies of the Title Register or any other registered document. 14

16 Communications to the Land Registry should always contain the Title Number in the reference for ease of identification. HM Land Registry Office Addresses The Title Number is particularly useful in identifying properties that do not have full postal addresses, e.g. a field or woodland. For this reason it is always prudent to keep a note of the Title Number in the event that you mislay any of your registered documents. Title Numbers begin with 2 or 3 letters following by a number. The letters identify the county in which the property is situate, e.g. MS denotes a property in Merseyside; YEA denotes a property in the East Riding of Yorkshire. The Title Register, Title Plan and registered Deeds all contain the Title Number at the top of the document, in large bold type. LAND REGISTRY OFFICES HM Land Registry has many office buildings covering the whole of England and Wales. Each area is allocated a specific Land Registry office, and the name of that office is shown at the top of each Title Register, e.g properties in Merseyside are dealt with by the Birkenhead Land Registry. If you are dealing direct with HM Land Registry all communications with them pertinent to a particular property should be sent to that Land Registry office. Birkenhead (Old Market) Old Market House Hamilton Street Birkenhead Merseyside CH41 5FL Birkenhead (Rosebrae) Rosebrae Court Woodside Ferry Approach Birkenhead Merseyside CH41 6DU Coventry Leigh Court Torrington Avenue Tile Hill Coventry CV4 9XZ Gloucester Twyver House Bruton Way Gloucester GL1 1DQ Kingston upon Hull Earle House Colonial Street Hull HU2 8JN 15

17 DATE THE PROPERTY WAS BUILT At the beginning of the A section there is a date in brackets. This is the date the property first became registered. This date is often shortly after the date the property was built, so persons looking to find the age of the property can often use this date as a guide. This date is often required Date of First Registration highlighted in green At the beginning of the B section there is another date in brackets, alongside the name of the owner. This is the date that the present owner was registered as such, and follows closely after the date of purchase. This date is of particular relevance when applying for Prior Copies of the Register (History Search) as the date for a Prior Copy Search must be earlier than this date. PROPERTY ADDRESS Different ways of showing the Property Address Sample created similar to that in a Title Register for insurance purposes. DATE OF PURCHASE BY CURRENT OWNER Part of A section of Register showing Property Address Date of Current Registration highlighted in green The A section of the Register describes the property. Paragraph 1 will state the postal address, if it has one, and describe it as consisting of the property edged in red on the Title Plan. Sample created similar to that in a Title Register 16

18 Any land removed from the Title will also be mentioned here, and will be referred to as land edged in green on the Title Plan. Any such land will be allocated a separate Title Number which will also be shown on the Title Plan. Land may be removed from a Title where part of it is sold to someone else, e.g. following a boundary dispute or where a builder divides his land into smaller parcels. A separate search can be made for the land removed, if required, using the Title Number provided. Where the property does not have a full postal address it will often be described as, e.g. land edged with red on the plan of the above Title and being land on the east side of Grosvenor Street, Tanner, Worcestershire. Searching for land without a full postal address has to be made by plan, and is the subject of a separate Guide Book in this series (see Chapter 6). EXCLUSIONS FROM THE TITLE The rights to mines and minerals to the land, if there are any, are likely to be excluded from ownership in favour of the Crown. The provision for exception is found in the A section of the Register. LEASEHOLD TITLES AND THE LEASE The Leasehold Title Register is set out similarly to the Freehold Title Register. In the A section of the register the property The property is further described by reference to its tenure, i.e. it will be described as freehold, leasehold or commonhold land. Sample created similar to that in a Leasehold Title Register description refers to the property as leasehold land. One significant difference between freehold and leasehold titles, however, is that the leasehold title, in the A section, provides short particulars of the lease from which the title is derived. Sample created similar to that in a Title Register This will include the date of registration of the original lease, the date of registration of the purchased leasehold title to the 17

19 present owner, the length of the lease, any rent applicable and the names of the original parties to the lease, i.e. the original freeholder, the original tenant and any management company. Statutory Instrument creating them. The Rules came into effect on 18 June The Prescribed Clauses LR1! LR2! LR3! LR4! Date of Lease Title Numbers - the leasor s title number and any others. The Parties to the Lease The Property Prescribed Clauses Lease Sample created similar to that in a Title Register The short particulars of the lease will be followed by a statement that the landlord s title (freehold or superior leasehold title) is also registered, where it is registered. Leases will usually contain numerous restrictive covenants, and these are generally detailed in a schedule at the end of the C section of the register. The format of the Lease will differ according to the date upon which it was created. Leases created since the coming into effect of the Land Registration (Amendment) (No 2) Rules 2005 must contain Prescribed Clauses, which are set out in the Sample created similar to that in a Prescribed Clauses Lease 18

20 Lease created prior to 2006 There are 14 Prescribed Clauses, which are listed in Schedule 1A of the Rules. The effect of the Prescribed Clauses is to simplify the reading of the lease and navigation of the clauses and data it contains. Leases prior to this date are more difficult to read and understand. RENT CHARGES, CHIEF RENTS AND GROUND RENTS Rent Charges are also known as ground rents. In some parts of the country, e.g. Manchester, ground rents are called chief rents. The idea behind all rent charges is that once a property is sold an annual charge is made to the owner of the rent charge, albeit a small one. Rent charges are presently being phased out and will be extinguished altogether in To discover the identity of the rent charge holder one merely needs to look at the freehold title register, or any superior leasehold title (from which the current lease (underlease) is derived). PROPERTY OWNERSHIP Extract from old style Lease illustrating the difficulty in navigating the clauses thereof 19

21 One of the most useful reasons for a person to obtain a copy of the Title Register is to check the property description and the Checking Property Ownership The Land Registry allow up to 3 different contact addresses to be shown in the Register for each owner, so if there are 2 owners it is possible to have 6 different contact addresses recorded. Such addresses can include an address and an address Abroad. The idea of this is to reduce the incidence of fraud, as the Land Registry will contact the owner at each of the addresses whenever an application is made to change the register, as would happen in the event of a new purchase or mortgage. For this reason it is important for an owner to keep his/her address details up to date. Sample created similar to that in a Title Register It is not necessary to obtain the owner s consent to obtain a copy of their Title documents, and neither are they informed of the purchase at any time. ownership details, either to confirm that they themselves own the property, or else to confirm the identity and current address of the owner, if someone else. The B section of the Title Register deals with ownership. It states the name and address of the current owner. The names of previous owners are not shown, although one can obtain an historical copy of the Register, back to 1993 which will show the owner at that particular date. Where a person desires to obtain the owner s address, e.g. a tenant wishing to contact his landlord, but the owner has not kept his address details up to date, the Title Register will only display his last notified address, which is often the address of the property. Where this occurs it may be possible to send a stamped addressed envelope to the mortgagee (listed in the C section of the Register) and ask the mortgagee to forward a letter to the owner. The mortgagee will usually know the owner s current address. 20

22 Ownership details are often required in connection with court proceedings, to trace debtors, carry out status reports on debtors, to provide evidence of ownership to civil authorities (passport office, inland revenue, etc), for insurance purposes and so on. Many infrastructure, development and building companies need to know the ownership details of properties prior to activities such as laying cables, pipelines, purchasing land for development and so on. Where property does not have a full postal address it is more difficult to obtain a copy of the Title documents. However, we do offer a specialised search for this, namely our Title Register search for properties with no postal address. Sample created similar to that in a Title Register the price appears in the B section of the Register, together with the date of registration of the purchase. The actual price may not be shown. If the price is uncertain then the value stated by the purchaser will be shown instead. The purchase price would normally be shown where the purchaser paid stamp duty, where it is stated on the Transfer Deed or other document (e.g. the contract for sale) or where there is a probate valuation. If the price was paid in a foreign currency and that is shown on the Transfer deed then that is the price that will be shown in the Title Register. Where no payment was made, e.g. the property was transferred to the current owner as a gift, then the value will be shown instead. The value may be shown to be an amount between two price ranges, or shown as over a certain amount. If the value cannot be accurately gauged then it may be omitted altogether as it may otherwise be misleading. REFERENCED DEEDS PURCHASE PRICE As a general rule the purchase price is shown in the Title Register for properties purchased after 1 April A note of Notwithstanding that all properties sold or mortgaged are now subject to compulsory land registration (and therefore Land Registry approved documents must be used for the purchase deed (Form TR1 for example)), the old deeds and documents left over from the pre-registration system of conveyancing 21

23 remain with us and still have a vital role to play in many aspects of property ownership. Post-registration conveyancing is governed by the Land document proving ownership under Land Registration) that contains all this detail. Where it is too much, however, a reference will be made to the deed containing it and the deed will be retained by the Land Registry so that it can be provided to people requiring further detail, e.g. on the sale of a property where there is a dispute about the boundaries of the property or where there are issues relating to rights of way, rights of access, rights of light, etc. Sample created similar to that in a Title Register Registration Act 2002 and requires most deeds to be in a form approved by the Land Registration Rules The purchase deed is now called a Transfer. A simple transfer of the whole of a title is in Form TR1; a transfer of part only of the title, in form TP1. Deeds may be retained by the Land Registry either as digital (scanned) copies or as paper copies. Where a scanned copy of the Deed is retained the Land Register will make a note at the end of the paragraph referring to the Deed that a copy has been filed. You can order a Deed by using the Deed Search. Some parcels of land are subject to many covenants, easements, restrictions, agreements, etc and the modern Transfer Deed or old Conveyance Deed may contain many pages containing voluminous details of such. There may also be other deeds recording agreements entered into between the parties, again containing much detail. As a general rule the Land Registry will try to produce a Title Register (the main 22

24 RESTRICTIONS A Restriction is an entry made in the register that denotes a fettering of the owner s title, as for example, where the property is owned as a tenancy in common, rather than a joint tenancy. This would mean that a sole owner could not sell the property. The Restriction prevents or regulates the owner from making a disposition such as a sale or mortgage. Another example is where the owner cannot sell or mortgage the land without the consent of his mortgagee. Restrictions are found in the B section of the register. TENANCIES IN COMMON AND JOINT TENANCIES the need for it to be transferred or conveyed to him. Thus there is no disposition and therefore no taxable transaction. The terms Joint Tenancy and Tenancy in Common do not refer to a lease or tenancy of a property, but are merely the legal definition of how a property is owned by two or more people. Joint Tenancies and Tenancies in Common apply whether the property is leasehold or freehold. In most instances two or more owners of property hold it as joint tenants. However, a huge disadvantage of owning it in this way is that the respective owners cannot leave their share of the property in a Will, as they do not own a share. Upon the death of a joint owner their ownership of the property automatically devolves on the surviving owners (right of survivorship) and any Example of typical Restrictions Joint Tenancy A Joint Tenancy, properly known as a Beneficial Joint Tenancy, is one of the two main ways that a property can be owned by two or more people. When a property is owned in this way each joint owner holds 100% of the property, i.e. there are no divided shares as each person owns the whole. This means that if one or more of the joint tenants die the survivor already owns the property, without Sample created similar to that in a Title Register provision in the deceased s Will is of no effect. 23

25 Right of Survivorship is a powerful legal right in so far as it takes priority over all other claims when distributing the deceased s estate (assets). There will be no need to obtain Probate and the deceased s unsecured creditors, beneficiaries and family will have no prior claim on it. Husbands and wives often own the property as Joint Tenants so that inheritance tax will not fall due upon the death of the first one of them, the effect of which might otherwise necessitate the sale of the property to pay the tax and thereby dispossess the survivor. and civil partnerships more common, more and more joint owners are evolving to ownership as a Tenancy in Common The owners of the property decide what share of the property they own, whether it is 50% each for two owners, 40% and 60% and so on. Often it depends on the size of the respective contributions towards the purchase price. Unlike Joint Tenants, Tenants in Common can leave their share in a Will, although this may give rise to inheritance tax. Following the death of one of the Tenants in Common his share will devolve according to the terms of his Will, or if there is no Will, then the rules of intestacy. Production of an official copy of the Title Register showing the owners as joint tenants will dispel any attempt in court to defeat the right of survivorship. Tenancy in Common Sample created similar to that in a Title Register A Tenancy in Common is the other way that two or more people can own property. Each owner has a specified share in the property, or if no share is specified, they each have an equal share. This type of ownership is more prevalent in Ireland than in England and Wales but as marriages become less common The Title Register does not state whether the property is owned as a joint tenancy or a tenancy in common. However, a tenancy in common is usually recorded on the register as a Restriction using the following wording: RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the Registrar or the court. A joint tenancy can be converted to a tenancy in common by service of a notice of severance and the registration of the above Restriction at the Land Registry. More information can be obtained about Joint Tenancies and Tenancies in Common 24

26 by downloading our Joint Tenancy/Tenancy in Common Guide Book (see chapter 6). Mortgages and Charges are noted to in the C section of the register. The date of registration is provided in brackets, followed by a description of the mortgage or charge. The line following provides the name of the proprietor of the mortgage (the mortgagee) and their address for service. If there is more than one mortgage they are entered in order of priority. Where the mortgagee is under an obligation to make further advances this is also recorded, together with a statement that any such further advances will take priority over any further mortgages or charges registered after that mortgagee s earlier advance, so far as is allowed by section 49(3) Land Registration Act Sample created similar to that in a Title Register The conversion to Tenancy in Common service is available by using the Tenancy in Common Search. MORTGAGES AND CHARGES Although there is a technical difference between a mortgage and a charge for all intents and purposes, and for the purpose of this book, they are the same thing. EASEMENTS Easements are private rights, such as a right of way, that permit you to use another person s property without owning it. There are four main categories of easements (or rights), over an adjoining parcel of land. These are rights of way, rights of light and air, rights of support and rights relating to artificial waterways. All easements have similar properties in that: 25

27 there must be two adjoining properties; one of which has the benefit of the right, known as the dominant tenement (this is a positive easement), and one which has the burden of the right, known as the servient tenement (this Express Easement the right must be recorded by deed and in the case of registered land, should be recorded in the Title Register for each property affected. Easements may arise in 6 different ways: 1 Express Easements Easement of Necessity Sample created similar to that in a Title Register is a negative easement). the owners of the two properties must be different from each other An express easement is expressed to be so by deed and in the case of registered land is referred to in the A Section of the Title Register for the dominant tenement and in the C Section of the Title Register for the servient tenement. 26

28 An example of an express easement is where, on the sale of part of a parcel of land the vendor agrees that the purchaser may have a right of way along his drive. This will be recorded in the transfer deed and an entry will by made by the Land Registry in the A section of the purchaser s new Title Register and in the C section of the vendor s Title Register. 2 Implied Easements Implied easements are not created by deed but are implied by the law, the courts looking at what the original parties intended and how the property is being used. Once the need for an easement of necessity ceases to exist, e.g. because an access path is made or because a legal easement is created by deed, then the easement of necessity automatically ceases to exist. 4 Easements by Prior Use It is possible to create an easement simply by having used the property in a similar way before. The court will assume that the parties intended to create it but forgot to declare the easement in the deeds. 3 Easements of Necessity An easement of necessity only comes into existence once the court makes an order for the same. Usually the easement is required because a property owner cannot obtain entrance to his land without crossing an adjacent parcel of land, i.e. his property is landlocked. In such circumstances application must be made to the court for the easement on the grounds that it is necessary for the enjoyment of the property. A similar right might exist where a gable wall requires repair but cannot be reached save by accessing an adjoining property. The court will decide whether to grant the easement by deducing the intention of the original parties and whether the damage or inconvenience would be greater for the dominant or the servient tenement and make an order accordingly. In order for such an easement to exist it must be shown that: Both properties were once in the joint ownership of a person or persons The properties were divided That the use for which the easement is required existed before the properties were divided That the easement was patently obvious, i.e. is discernible by inspection The easement is reasonably necessary and will benefit the dominant tenement. 5 Easements by Prescription Easements by prescription are similar to claims for adverse possession (or squatter s claims) in that they follow the use of land, without the owner s consent, openly and over a 27

29 continuous period of at least 20 years. The main difference is that the use of the land is shared by more than one person. If the owner of the property acts to defend his property rights at any time before the above period has expired then the prescriptive right will cease, and any attempt to re-establish it will have to begin again. Easements by prescription may arise under the common law, under the Prescription Act 1832 or by lost modern grant. The right of way claimed must be one that could have been granted in accordance with the law. For example a right of way claimed for the purpose of tipping rubbish unlawfully on land could not have been lawfully granted and cannot be acquired by prescription. On the other hand, a right to drive a vehicle over land that is a restricted byway without lawful authority is an offence, but as lawful authority could have been given then such a right is capable of being acquired by prescription. It should be noted that prescriptive rights cannot be acquired over railway land or land owned by the British Waterways Board, due to the operation of the British Transport Commission Act expressly grant the same. If the purchaser bought the property and relied in good faith on the existence of such an easement as part of his decision to buy then the court will normally make an order for the easement. For example, the purchaser may tell the vendor that he wishes to build a garage on part of the land being sold to him and the vendor may agree that he can access the garage by using a particular drive on his land. If no easement is granted by deed to effect such a right, but the purchaser has relied on the vendor s representation in consideration of purchasing the property then he would be entitled to an easement by estoppel. RESTRICTIVE AND PERSONAL COVENANTS Restrictive Covenants are covenants made between a purchaser and vendor, that "run with the land" and burden a property, for example, a covenant not to develop the land or to use it for commercial purposes. Such covenants, because they Personal Covenant 6 Easements by Estoppel Easements by estoppel are created by the court to prevent an inequitable outcome where the vendor has misrepresented that he would grant an easement to the purchaser but in fact did not Sample created similar to that in a Title Register 28

30 run with the land, burden it even if the property is sold to someone else. Restrictive Covenants are recorded in the C section of the Title Register; if lengthy, they may appear in a Schedule at the end of the C section. Much more detail of the Covenants is usually contained in the Deed creating them. Personal Covenants are covenants which do not run with the land, and usually relate to an action that the Purchaser has agreed to take when buying the property, e.g. erecting a stock proof fence. They do not burden the land and are only enforceable against the person making the covenant, although SCHEDULES Schedules are a convenient way of annexing long detailed lists of covenants, leases, agreements, etc that would otherwise take up a disproportionate amount of space within the body of the Register. Schedules will appear at the end of the Register. If there are many schedules they will be numbered, First Schedule, Second Schedule, etc, or may be identified as Schedule of Restrictive Covenants, Schedule of Leases and so on. LOST DEEDS Where a property is registered the ownership documents are never lost, as copies can be obtained at any time by applying to the Land Registry. The documents of Title are the Title Register and Title Plan and copies can be obtained from us using our Title Register search. Sample created similar to that in a Title Register a new owner may be required to enter into a covenant in similar terms when buying the property. They are recorded in the A section of the Register, and again, are often detailed more thoroughly in the Deed creating it. Losing Deeds is only a problem if the property is unregistered. In such cases the Land Registry do not usually have any records pertaining to the property, save where there is a Caution Against First Registration. In such instances a solicitor should be instructed to re-constitute the Title, which he will do in the following way: 29

31 1 Search of the Index Map. This will confirm whether or not the property is registered and will also state if there is a Caution Against First Registration in respect of the property. If there is there will be a Caution Title in favour of the person in whose interest the Caution is registered. A Caution Title will provide details of such person. There will also be a Caution Title Plan identifying the property. 2 Apply to the Land Registry for First Registration of Title. Rule 27 of the Land Registration Rules 2003 provides that where a person is unable to produce a full documentary title, evidence must be provided with the application that he is entitled to apply under under section 3(2) Land Registration Act 2002 (because the estate is vested in him or he is entitled to have it vested in him), and to account for the absence of documentary evidence. 3 Statements of Truth using Land Registry form ST3. Quite often there will need to be several Statements of Truth, from various witnesses, e.g. the applicant, his solicitor and a mortgagee or bank. This is where the applicant will account for the absence of documentary evidence, and where he will provide such other evidence as he may have, e.g. the Deeds may have been lost in a fire, or where they were lost having been in the custody of another, e.g. a bank or solicitor. Establishing the identify of the person in whose custody there were last in is usually an important factor to include in this Statement. The Statement should also attempt to provide a reconstruction of the Title from the available evidence. The Statement of Truth should include: Confirmation that the applicant is the legal owner of the state A description of the land and enclose a plan outlining the land State whether it is a freehold or leasehold estate (if leasehold, for how many years it was granted for and from when State the period of ownership Who had possession of the Deeds when lost or destroyed State why such person had possession or custody of them State how they were lost or destroyed State what steps have been taken to recover them State whether or not there was a mortgage or charge over them Rights exercised by the applicant over the land, e.g. living there Annexe to the Statement: any copy Deeds drafts of Deeds or other documents relating to the property, such as inheritance tax declarations rates receipts fire insurance policies, etc. Provide evidence of Identity The Land Registry will usually only grant a Possessory Title where there is still some doubt as to ownership. 30

32 CHAPTER 2 Title Register (WHERE THERE IS NO POSTAL ADDRESS) ENGLAND & WALES UK LAND REGISTRY SERVICES Also available for Scotland, N Ireland, Ireland, Isle of Man and Channel Islands

33 SECTION 1 No Postal Address Section Contents TITLE REGISTER SEARCH (NO ADDRESS) LR1b Title Register search (no postal address) Unique Search Roads, Pavements and Verges Unadopted Roads Identifying the Land Common Land Marking the Identification Plan Tint Plan Like This Tint rather than Edge Not to Overlap Boundary Lines Do Not Extend the Plan This search includes the following documents: 1. Title Register 2. Details of Pending Applications for registration (if there are any) 3. Index Map Search Result 4. Identification Plan (if needed) UNIQUE SEARCH Buy Searches referred to in this Section Title Register where there is No Postal Address Disused buildings and ruins can be identified using the No Address Search A search for a copy of the Title Register is normally straight forward, being based on a property s postal address or on the Title Number. However, for properties where t h e r e i s n o p o s t a l address, e.g. a field, infill site or woodland, it is impossible to search in a database for it. Such 32

34 properties are often described as The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being land on the west side of Greater Avenue, Tanner, Worcestershire. Clearly it is not going to be possible to search in a database for an address such as this. UKLRS have adopted various unique techniques for identifying such land, which has proved very helpful for individuals, estate developers, builders, cable and pipe layers, forestry companies and similar organisations. Our Title Register with No Postal Address Search should be used to identify ownership of the following types of property: Examples of land where using our LR1b Search would be appropriate building plots and infill sites fields woodland and moorland lakes, streams & other waterways private roads lanes alleyways walkways waste sites ruins dilapidated or vacant buildings historic buildings, e.g. castles & churches grass verges village greens ROADS, PAVEMENTS AND VERGES As a general rule Land Registry title plans do not show roads, pavements or grass verges outside of a building or parcel of land. However, there is a legal presumption in common law that the property fronting onto the road includes ownership of the paving, grass verge and road to the mid-point thereof. This presumption can be rebutted by evidence to the contrary. Such evidence, where it exists, is usually found within the title register or deeds to the property. It is the case that all non-private roads have been adopted by the local authority, who enter into an agreement & bond with the developer or builder of the property. This means that the local authority maintain the surface of the paving, grass verge and road, but so far as ownership of the sub-surface is concerned the owner of the abutting house or land (called the frontager } is in actuality the owner of it. It is the practice of Land Registry to outline on the title plan in red ink the property owned, but to exclude therefrom the fronting pavement, grass verge and road. The only way to be sure who the owner is (whether the road is adopted or not) is to search by plan; usually the title plan for the property itself will be used to identify it. The resultant title register and title plan will still not show the road, etc as being within the ownership of the abutting building or land, but you will know of the ownership 33