Before your client buys a property, you must investigate the seller's title. This means proving that the seller actually owns what they are selling, and checking that there are no problems that could affect your client's use or enjoyment of the property. A failure to investigate title properly is professional negligence. Pure and simple.
Everything else in the transaction depends on good title. If the title is defective, the contract may be frustrated, the mortgage lender may withdraw, or your client could end up owning something they didn't bargain for. Always investigate title thoroughly before exchange.
Title means the legal right to ownership of property. When we talk about "investigating title", we mean examining the evidence that proves who owns the property and what rights and burdens affect it. In England and Wales, most land is now registered at HM Land Registry, but some remains unregistered.
| Feature | Registered Land | Unregistered Land |
|---|---|---|
| Evidence of title | Land Registry documents | Deeds and documents |
| Where held | HM Land Registry | Seller's possession |
| State guarantee | Yes - state-backed title | No - depends on deed quality |
| Prevalence | ~87% of land in England/Wales | ~13% of land |
| Sale triggers compulsory registration | Yes | Yes - first registration |
The Land Registration Act 2002 (LRA 2002) is the governing legislation for registered land. It introduced significant reforms to make registration more transparent and reliable. The Act is based on three key principles: the mirror principle (the register reflects everything that affects the title), the curtain principle (complex trusts are kept off the register), and the insurance principle (the state guarantees the accuracy of the register).
{"title":"Land Registration Act 2002","sections":[{"section":"Section 27","content":"The register is a public document, open to inspection by any person on payment of the prescribed fee."},{"section":"Section 28","content":"The register shall be conclusive evidence of the matters shown (subject to certain minor exceptions)."},{"section":"Schedule 1","content":"Mentioned matters that must be entered on the register, including estates, charges, and other interests affecting the land."}]}
When you download an Official Copy of the Register from HM Land Registry, you will receive three separate registers: the Property Register, the Proprietorship Register, and the Charges Register. Each serves a distinct purpose. Together, they tell the complete story of the property ownership and the burdens that affect it.
| Register | Purpose | Key Information |
|---|---|---|
| Property Register | Describes the property | Address, extent, easements benefiting the property |
| Proprietorship Register | Identifies the owner | Current proprietor, class of title, price paid |
| Charges Register | Lists burdens | Mortgages, restrictions, covenants, notices |
The Property Register describes the property itself. It identifies the land or lease that is registered, and it also contains details of any rights that benefit the property (such as rights of way over neighbouring land). Think of it as the "what" of the registration - what is being registered.
A typical Property Register entry might look like: "(1) 1 High Street, London. (2) The title plan shows the extent of the land. (3) The land has the benefit of a right of way on foot only along the coloured track marked A on the title plan." Each numbered paragraph gives you specific information about the property.
The Proprietorship Register tells you who owns the property. It identifies the current proprietor (owner), the class of title they hold, and sometimes includes other information such as the price paid when the property was last registered. This is the "who" of the registration.
Possessory title means the Land Registry cannot guarantee that the person registered is the true owner. It may be vulnerable to challenge. If your client is buying property with possessory title, consider indemnity insurance. Possessory title can be upgraded to absolute title after a period of ownership.
The Charges Register contains all the burdens that affect the property - things that limit what the owner can do, or obligations they must comply with. This includes mortgages, restrictive covenants, and other notices. This is the "what affects it" of the registration. Always read this carefully - it can reveal deal-breaking issues.
Many of the most problematic title issues are found in the Charges Register. An unnoticed restrictive covenant could prevent your client from extending the property. An un-discharged mortgage means the seller hasn't actually paid off their loan. Always read every entry and raise enquiries about anything unclear.
The title plan is a map showing the boundaries of the registered property. It is based on the Ordnance Survey map and shows the property's outline in red. The title plan is an essential part of investigating title because it shows exactly what land is included in the registration.
The red edging on the title plan shows the general boundary of the property, not the exact line. The "general boundaries rule" means that the boundary is for identification purposes only - the exact line may be determined by physical features on the ground. Blue, yellow, or brown coloured lines show rights benefiting the property (easements).
When reviewing the title plan, check that the red edging matches what you expect from the property address and description. Look for coloured lines that indicate easements. Compare the plan with any planning drawings or aerial photos to identify discrepancies. Boundary disputes are common and can be costly.
Unregistered title means ownership is proved by physical deeds and documents rather than a Land Registry entry. Since compulsory registration began in 1925 and expanded over time, most land is now registered. Unregistered land is typically rural, owned by the same family for generations, or has not changed hands since registration became compulsory in that area.
Dealing with unregistered title is increasingly uncommon. If you encounter it, be extra careful. There is no state guarantee of title. You must verify ownership through a chain of deeds, and missing or defective documents can be catastrophic. Most solicitors are more comfortable with registered title.
The seller's solicitor will prepare an "epitome of title" - a bundle of documents proving ownership. This includes the current deed (usually a conveyance or transfer) and a chain of previous documents going back at least 15 years. You must review each document to verify that ownership has been properly transferred.
The "root of title" is the starting point for proving ownership. It must be a document that contains a full description of the property and shows a good root of ownership. For unregistered land, this is usually a conveyance that is at least 15 years old. From this root, you trace ownership forward to the current seller.
{"title":"Law of Property Act 1925","sections":[{"section":"Section 27","content":"A purchaser is entitled to assume that the document at least 15 years old containing a description of the property and showing ownership is a good root of title, unless there is actual notice of any defect."},{"section":"Section 28","content":"A purchaser need not investigate any earlier documents or matters, subject to certain exceptions including actual notice and fraud."},{"section":"Section 29","content":"Describes the effect of the root of title as conclusive evidence of ownership, subject to the statutory exceptions."}]}
For unregistered land, the seller must prove title by showing documents going back at least 15 years. This is the "deeds back period". The 15-year rule gives buyers confidence without requiring them to investigate the entire history of the property. If the chain is broken or documents are missing, this is a serious issue.
If the chain of title is broken or key documents are missing, you may not be able to prove good title. This could make the property unsaleable or unmortgageable. Solutions include statutory declarations, indemnity insurance, or applying to the Land Registry for possessory registration - but all have limitations.
Adverse possession is when someone gains ownership of land by possessing it openly and without permission for a sufficient period. It used to be governed by common law, but the Land Registration Act 2002 introduced new rules for registered land. Adverse possession claims can destroy existing title, so they are a serious concern.
{"title":"Land Registration Act 2002, Schedule 6","sections":[{"section":"Paragraph 1","content":"A person may apply to the registrar to be registered as proprietor if they have been in adverse possession of the land for 10 years."},{"section":"Paragraph 2","content":"The registrar must notify the registered proprietor, who has 65 business days to object."},{"section":"Paragraph 5","content":"If the registered proprietor objects, the squatter may only succeed in limited circumstances (e.g., estoppel, reasonable belief in ownership)."}]}
When inspecting a property, look for signs that neighbours may be using part of the land (e.g., gardens extending beyond boundaries, paths across land). Long-standing unauthorised use could lead to an adverse possession claim. Boundary issues should be resolved before completion.
An easement is a right that benefits one piece of land (the dominant tenement) over another piece of land (the servient tenement). Common examples include rights of way, rights to light, and drainage rights. Wayleaves are similar but typically relate to utilities (electricity, gas, water) crossing the land.
Easements benefiting the property are usually listed in the Property Register. Easements burdening the property may appear in the Charges Register or be shown on the title plan as coloured lines. Always check the title plan carefully for blue, yellow, or brown lines indicating rights benefiting or burdening the property.
A restrictive covenant is a promise not to do something with your land that would affect someone else's land. For example, "not to build any extension without the consent of the vendor" or "not to use the property for any trade or business". Unlike positive covenants (which require you to do something), restrictive covenants "run with the land" and bind future owners.
{"title":"Law of Property Act 1925","sections":[{"section":"Section 79","content":"Covenants relating to land are expressed to be binding on successors in title unless a contrary intention appears."},{"section":"Section 84","content":"Applications can be made to the Upper Tribunal to modify or discharge restrictive covenants that are obsolete or impede reasonable use of the land."}]}
A restrictive covenant could prevent your client from extending the property, running a business from home, or parking a commercial vehicle on the driveway. Always read restrictive covenants carefully and explain their implications to your client. Breach of covenant can lead to injunctions and damages.
Chancel repair liability is an ancient obligation to pay for repairs to the chancel of a parish church. It affects certain properties in specific areas of England and can result in significant unexpected costs. The liability binds successors in title and can be enforceable even if the property owner is unaware of it.
Some properties may be affected by common land or town or village greens registered under the Commons Registration Act 1965. Rights of common (such as grazing rights) may affect the property. If the property is adjacent to common land, there may be restrictions on development and use.
Overriding interests are rights that affect registered land even though they are not mentioned on the register. They "override" the register. Examples include certain leases, rights of people in actual occupation, and easements that are obvious on inspection. LRA 2002 reduced the number of overriding interests, but they still exist and must be considered.
When you identify a title issue, you have several options depending on the nature and severity of the problem. Some issues can be resolved before completion, others require ongoing management, and some may be so serious that your client should reconsider the purchase.
| Issue | Potential Solutions | Notes |
|---|---|---|
| Missing deed | Statutory declaration, indemnity insurance | Risk remains if declaration is challenged |
| Restrictive covenant | Indemnity insurance, s.84 application | Tribunal applications are expensive and uncertain |
| Boundary discrepancy | Boundary agreement, Land Registry determination | Both neighbours must agree to boundary agreement |
| Possessory title | Upgrade application after ownership period | Indemnity insurance often required meanwhile |
| Chancel liability | Chancel check search, indemnity insurance | Insurance is straightforward if no claim is pending |
| Adverse possession risk | Regularising occupation, boundary agreement | Act quickly - 10-year rule for registered land |
Title indemnity insurance is a one-off payment that insures against the risk of a defect in title being enforced. It is often the most practical solution to title problems because it is relatively inexpensive and provides certainty. The policy lasts forever and covers the current owner and future owners.
For many title issues (especially old restrictive covenants, chancel repair liability, or missing documents), indemnity insurance is the most practical solution. It is quick, relatively cheap, and allows the transaction to proceed. Lenders usually accept this approach. Always check if a policy is already in place.
Indemnity insurance is not always available or appropriate. Insurers will not cover known claims or disputes. Some lenders may not accept insurance for certain issues. And insurance does not remove the burden - it just provides compensation if something goes wrong. Explain this to your client.
A statutory declaration is a formal statement signed in the presence of a solicitor or commissioner for oaths. In property transactions, statutory declarations are often used to explain gaps in the title, confirm use of land, or regularise positions that have developed over time. However, they are only as good as the declarant's honesty.
Under Section 84 of the Law of Property Act 1925, the Upper Tribunal (Lands Chamber) can discharge or modify restrictive covenants. Grounds include: the covenant is obsolete; it impedes reasonable use of the land; it was agreed by the parties; or the person who benefits releases it. Applications are expensive and uncertain, so insurance is usually preferred.
After investigating title, you must report to your client in a clear, accessible way. The Report on Title (also called a Report on Title for the Purchaser) is your opportunity to explain what you have found, highlight any issues, and obtain your client's instructions on how to proceed. This is a crucial document - it must be thorough but understandable.
Your Report on Title should be written in clear, straightforward language. Avoid legal jargon where possible, or explain it if you must use it. Your client needs to understand what they are buying and what restrictions or obligations come with the property. A confused client cannot give proper instructions.
After explaining any title issues, you must obtain your client's clear instructions on how to proceed. Do they want to accept the property as-is? Do they want the seller to obtain indemnity insurance? Do they want to renegotiate the price? Or do they want to walk away? Document their decision carefully.
If your client decides to proceed despite title defects, make sure this is clearly documented. If problems arise later, you may need to show that you properly advised them of the risks and that they chose to proceed. A simple email confirmation or signed acknowledgment can protect you from future claims.