INVESTIGATING TITLE Optional searches
• 1. Companies search
8) COVENANTS
• 1) Covenant enforceable against buyer?
o Checks Seller company = solvent + authorised to sell ∴ no later issues when registering transfer of • 2) Continuing/past/future breaches? CPSE 4.2(f)
OFFICIAL COPIES *Check correct year throughout
ownership o Apply to facts: E.g. Covenant preventing using land for heavy industry ≠ issue if wants to open a shop
• “Search from date” = < 1 year old from completion date, otherwise misses recent entries
• 2. K16 bankruptcy search • 3) PWB? SIM search
• Title number matches contract + TR1?
• 3. CON29O Q22 Common land or village greens, e.g. parks • 4) PWB consent obtained? If yes = no breach
PROPERTY REGISTER o Public land in the area = may affect Buyer’s plans, e.g. public footpaths, rights of access/grazing • 5) If no, remedies? Depends on when breached + how old covenant is
• 1) Description of land matches contract + TR1? • 4. CON29M Coal Mining and Brine Search o Past old breach (> 50 years) = insurance
• 2) Freehold/leasehold o Subsistence risks § CPSE 5 If RC insurance obtained
• 2) Easements benefiting property = adequate for client’s needs? o Past/future uses of mining site § If not, Special Condition in contract to obtain insurance
• 3) Exclusions, e.g. mines, minerals = affects client? • 5. Phase I / Phase II Environmental Survey § Don’t inform PWB of breach
o If so, another owns the land below o If issue, apportion liability for clean-up / drop deal § S19(1) FSMA Requires authorization to advise insurance policies
o Warn client + confirm w/ surveyors if exclusions impact property’s valuation • 6. [Desktop Environmental Search on risk of flooding] Waterways search § Who pays?
o Liability for maintenance + flooding, ROW along riverbank, drainage/fishing rights, otherwise Buyer § Past breach: Seller pays
PROPRIETORSHIP REGISTER
buys subject to rights § Future breach: Buyer pays, b/c Seller unlikely to agree price reduction/pay premium
• Quality of title § If past + future breach =
• Identifies owner of property w/ name + address 1) DESCRIPTION OF LAND § 1. Single policy covering both + split premium /
• Restrictions on power to sell property / deal w/ the land § 2. Risk breaching covenant w/o insurance + hope PWB doesn’t enforce /
2) RIGHTS/EASEMENTS (right of way) *Most properties abut the public highway ≠ need ROW
• 1) Class of title = absolute? • CPSE 1.6 ROW? § 3. Don’t proceed w/ deal
o S9(2) LRA 2002 Registered w/ absolute title IF registrar thinks their title = such that a competent • 1. Adequate for client’s needs, otherwise landlocked o Past recent / future breach = seek PWB’s consent
professional adviser would advise a willing Buyer to accept o Foot/vehicles? o S84(1) LPA 1925 Apply to Lands Tribunal = power to discharge/modify RC *Only restrictive covenants
• 2) Seller in contract = registered proprietor? If not, who? o Certain times of day? § Obsolete / continuing RC impedes user of land / PWB’s act/omissions agree to discharge /
o Physically adequate: Size, location, construction, e.g. wide/strong enough for vehicles? doesn’t injure PWB
• 3) Seller = company? Check name + number on CH = matches contract *If Seller = individual, NO company search
• 4) Indemnity covenant? § Ask surveyor on its suitability Positive covenants
• 5) Restrictions? o If inadequate, Deed of Variation w/ servient owner for ££, otherwise drop deal • ≠ Run w/ the land, but indemnity covenant = personally bound
o Mortgage: (7 December 2016) RESTRICTION: Except under an order of the Registrar no disposition by the • 2. Maintenance: By who, how much, Seller’s previous cost? o If yes, chain of personal indemnity covenants which Seller will wish to continue
proprietors of the land is to be registered without the consent of the proprietors of the charge dated 6 November o If in disrepair, ask Seller to repair o If no, unenforceable ∴ no further action
2016 in favour of X Bank plc referred to in the Charges Register. o Charges Register: “Fair proportion”
• To ensure Buyer gives indemnity covenant on completion:
§ If buying part of land, requires lenders’ consent to sale, not sale of whole b/c mortgage discharged o Always ask: CPSE 3.2(f) If Seller paid maintenance costs *Last 3 years
o Incorporate into contract: SCS 4.6.4 / SCPC 6.6.4 Buyer enters indemnity = bound by covenants in
o TIC: “(Date) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) o Ask Seller to ask lane owner: How to calculate ‘fair proportion’ + if maintenance works are planned
Charges Register
under which capital ££ arises is to be registered unless authorised by an order of the court” o Ask surveyor to check if maintenance is currently required. If so, advise Buyer on likely costs
o TR1 incl. indemnity covenant
CHARGES REGISTER • 3. Adopted/future adoption? • Check:
o Private roads can be adopted by local authority o Likely costs, e.g. maintenance
• 1) Easements burdening property = affects client?
o CON29 o Ask Seller if breached before + whether enforcement action taken. Find out current state of repair
• 2) Restrictive covenants = breached? affects client?
§ 2.1(a) Adopted public highways
• 3) Positive covenants = breached? Indemnity covenant?
§ If road ≠ mentioned, must be a private ROW
• 4) Mortgages = discharged?
§ 2.1(b)-(d) If council plans to adopt. If so, right becomes defunct
• 5) Leases? Buys subject to lease ∴ leaseholders retain rights under lease after sale
o Despite ≠ adopt, warn client of future adoption costs (to bring up to adoptable standard) = paid by
TITLE PLAN ‘frontagers’
• 1) Title plan matches contract? • 4. Registered right on servient land?
• 2) Check correct boundary marked (e.g. eastern), easements o SIM search:
§ If registered, gives title number of the ROW lane /
OTHER § Check charges register of burdened land *“The land in this title is subject to… ROW X”
• Inspect copies of conveyances referred to in Official Copies, where adverse rights ≠ extracted § If unregistered, ask Seller’s solicitor to put a caution against first registration on the burdened
land, otherwise sold + new owner isn’t bound by burden of easement Restrictive covenants
STRUCTURE TO ANALYSE OFFICIAL COPIES
• Tell Buyer. No further action, unless interferes w/ intended use
• 1) Identify issue: Which register? Entry no.? 3) TITLE ABSOLUTE
o “Proprietorship Register, entry 3 = TIC restriction” • Ask seller who PWB is; whether breached before; if applied for consent + was it refused? *Don’t alert
• Mortgagee requires client to show “title absolute” (true + proper owner) to get loan PWB, otherwise prevents buyer getting insurance
• 2) Relevance, e.g. type of business, future plans
o “Single owner can’t sell property on their own b/c property owned beneficially as TIC 4) REGISTERED PROPRIETOR = SELLER?
§ Issue = if 1 dies/1 owner ≠ want to sell property” • Individuals
• 3) Solutions • Companies: Check name, number, solvency at Companies House
o Enquire w/ seller/Land Registry + inform client • Joint tenants:
o Further action? Surveys, experts o 1 surviving JT = survivor executes b/c has both legal + beneficial interest vested in him
o Possible solutions: § Requires death certificate
§ Special Condition in contract • Restriction on Proprietorship Register (“no disposition by a sole proprietor”) = severed joint tenancy ∴
§ Appoint 2nd trustee ∴ purchase price paid to both trustees to overreach any beneficial interest beneficial estate is now held as TIC
o 1 surviving TIC = appoint 2 nd trustee ∴ overreaches any beneficial interests in property *’Vendor’s written consent’ = PWB *In exam, write PWB, not vendor
SEARCHES + ENQUIRIES *Identify issues, relevance, searches, solutions/potential issues to client § Requires death certificate + deed of appointment § PWB named in entry 1 of Charges Register. If died / sold land w/ benefit of RC = his successors in title
Compulsory searches
• Personal representative: § CPSE 4.2(c) Asks Seller who PWB is
• 1. LLC1: PP granted, conservation areas, listed buildings, change of use, smoke control order, if parts of GPDO o Requires copy of Grant of Probate § If heir, verify by further enquiries
disapplied *Diff to CLCS for unregistered land o Paying PR = overreaches any beneficial interest
• 2. CON29: PP pending/granted/refused, building regulations, roads, contamination • Attorney: Requires certified copy of power of attorney 9) OVERRIDING INTERESTS
o Local authority answers Qs on planning history + info on surrounding area • Unregistered charges may override purchase ∴ Buyer may be bound
• Mortgagee: Check power of sale exists (mortgage by deed) + has arisen
• 3. CPSEs: Extra info known to Seller = may affect Buyer’s plans • Searches: CPSE, LLC1, physical inspection
o Owner breached covenants 5) LEASES? If so, purchaser becomes landlord
Legal easements
o Non-owner occupiers
6) EASEMENTS BURDENING LAND? E.g. ROW enjoyed by neighbour • Sched 3 Para 3 LRA 2002 Legal easements created under Wheeldon v Burrows
o Unregistered 3rd parties rights
o Barriers to access 7) MORTGAGES? Leases: Sched 3 Para 1 LRA 2002 If ≤ 7 years
o Physical condition, e.g. damp • Ensure Seller’s solicitor undertakes to send ££ to redeem mortgage, otherwise Buyer bound by mortgage
• 4. Drainage and Water Search • Charge removed by: Persons in actual occupation
o If land is connected to mains water + drainage. If not, find out who does o Immediately after completion, Seller discharges via DS1 + submits application to Land Registry to • Sched 1 Para 2 LRA 2002 Interests of persons in actual occupation = overriding
• 5. Desktop Environmental Search: Contamination, flooding risk register Buyer as new owner / • CPSE 16 + ask Seller
• 6. Highways Search: Reveals boundary between public highway + private land o Once receiving sufficient ££ from Seller on completion, Bank sends e-DS1 to LR • Check: Deeds before property was registered to check no interests
o If gap, requires ROW o ∴ Automatically removes mortgagee restriction in Proprietorship Register • Special Condition: Occupier signs ∴ waives interest ≠ bind seller
• 7. Chancel Repair Search: Reveals liability to contribute to maintenance of church • Seller’s solicitor also undertakes to: o Occupier should obtain independent legal advice before signing = confirms he understood nature +
o Forward to Bank the completion monies to discharge the mortgage effect of signing waiver
• 8. Physical Inspection/Survey: Reveals physical defects, occupiers, boundary disputes o Once received from the Bank, forward to Buyer’s solicitor the DS1 / evidence of e-DS1 being filed at LR 1) CPSE.1
Unregistered: Also – • Questionnaire where seller answers Buyer’s Qs
*Buying whole property ≠ require mortgagee’s consent
• 9. Index Map Search (SIM) • If lies, seller liable for misrepresentation
§ VS. Buying part / / other disposition (e.g. granting lease) = requires mortgagee’s consent, b/c
o Registered properties w/ title numbers + unregistered land • If asked, must provide Energy Performance Certificate
mortgage ≠ fully discharged
o Check who owns neighbouring land + boundaries
• 10. CLCS via K15
