Learning Outcomes
After reading this article, you will be able to explain the process of investigating title in unregistered land, including how to analyze an epitome of title, identify a good root of title, and deduce ownership. You will be able to apply the legal requirements for establishing an unbroken chain of ownership, recognize common defects, and advise on practical solutions for SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the process of investigating title in unregistered land, especially how to analyze an epitome of title and deduce ownership. In your revision, focus on:
- The function and structure of an epitome of title in unregistered land transactions
- The requirements for a good root of title and an unbroken chain of ownership
- How to check for defects in title, missing documents, or encumbrances
- The legal formalities for deeds, execution, and stamping
- Practical steps for advising clients on resolving defects or gaps in title
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 are the minimum requirements for a document to be a good root of title in unregistered land?
- Why is it important to check for an unbroken chain of ownership in an epitome of title?
- What are common defects that may arise when analyzing an epitome of title?
- What is the legal effect if a deed in the chain of title is not properly executed or stamped?
Introduction
When acting in a transaction involving unregistered land, you must investigate the seller’s title to ensure they can transfer what they claim to own. This is achieved by analyzing an epitome of title—a chronological bundle of documents evidencing ownership and any interests affecting the land. For SQE1, you must be able to identify a good root of title, check the chain of ownership, and spot any defects or encumbrances that could affect the buyer.
Epitome of Title: Structure and Purpose
An epitome of title is a schedule of documents, with copies attached, that traces the ownership of unregistered land from a good root of title to the present owner. It provides the evidence needed to deduce ownership and reveal any burdens affecting the land.
Key Term: epitome of title
A chronological list of documents (with copies) evidencing ownership and interests affecting unregistered land, starting with a good root of title.
The epitome should include:
- The good root of title (usually a conveyance on sale at least 15 years old)
- All subsequent conveyances, mortgages, assents, or other relevant documents
- Evidence of any changes of name, deaths, or appointments of trustees
- Copies of land charges searches and any relevant certificates
Good Root of Title and Chain of Ownership
A good root of title is the basis of the epitome. It must meet strict legal requirements.
Key Term: good root of title
A document at least 15 years old that deals with the whole legal and equitable interest in the property, gives a clear description, and does not cast doubt on the title.
From the good root, there must be an unbroken chain of ownership to the current seller. Each transfer must be evidenced by a properly executed deed, and any changes (such as deaths or changes of name) must be supported by appropriate documents (e.g., death certificates, marriage certificates).
Key Term: chain of ownership
The sequence of documents showing the transfer of title from the good root to the present owner, with no unexplained gaps.
Checking the Epitome: Key Steps
When analyzing an epitome of title, apply the following checks:
- Good Root: Confirm the root document is at least 15 years old, deals with the whole property, and is properly executed and stamped.
- Unbroken Chain: Ensure every transfer from the root to the present is accounted for, with no missing links.
- Execution and Stamping: Check each deed is executed as a deed (signed, witnessed, and delivered) and, if dated before December 2003, is properly stamped for stamp duty.
- Property Description: The description of the property must be consistent throughout all documents.
- Encumbrances: Identify any mortgages, easements, restrictive covenants, or other burdens. Check for evidence of discharge of mortgages and compliance with covenants.
- Land Charges Searches: Confirm that land charges searches have been carried out against all estate owners for their period of ownership, and that no adverse entries affect the title.
Key Term: land charges search
A search of the Land Charges Register against the names of estate owners in unregistered land to reveal registered interests that may bind a buyer.
Common Defects and Practical Solutions
Typical problems encountered include:
- Missing Documents: If a deed is missing, the seller may need to provide a statutory declaration or indemnity insurance.
- Break in Chain: If a transfer is not evidenced, further investigation or additional documentation is required.
- Improper Execution: A deed not properly executed may not transfer legal title; the defect must be remedied or explained.
- Unpaid Stamp Duty: An unstamped deed is inadmissible as evidence and cannot be relied on as a good root.
- Undischarged Mortgages: The seller must provide evidence of discharge (e.g., a receipted mortgage deed or deed of release).
- Unregistered Land Charges: If a registrable interest is not registered, it may not bind a buyer for value.
Worked Example 1.1
A solicitor is acting for a buyer of unregistered land. The epitome of title starts with a conveyance dated 1980, followed by an assent in 1995, and a mortgage in 2000. The mortgage deed is not receipted, and there is no deed of release.
Question: What should the solicitor do about the undischarged mortgage?
Answer: The solicitor should require the seller to provide evidence that the mortgage has been discharged, such as a receipted mortgage deed or a deed of release from the lender. Without this, the buyer risks taking subject to the mortgage.
Worked Example 1.2
The epitome of title includes a conveyance dated 1975 as the root, but the next document is a conveyance in 1995. There is no evidence of who owned the property between 1975 and 1995.
Question: Is this a problem, and how should it be resolved?
Answer: Yes, this is a break in the chain of ownership. The seller must explain the gap, provide missing documents, or supply a statutory declaration to account for the missing period. Otherwise, the buyer cannot be sure the seller has good title.
Key Document Checks
When reviewing each document in the epitome:
- Confirm the parties’ names match throughout the chain.
- Check for evidence of deaths, changes of name, or appointments of trustees.
- Ensure all deeds are executed as deeds and, if pre-2003, are properly stamped.
- Verify that all mortgages have been discharged.
- Identify and advise on any restrictive covenants or easements.
- Confirm that all land charges searches are up to date and cover the correct periods.
Key Term: restrictive covenant
A promise restricting the use of land, which may bind successors in title if properly registered or noted.Key Term: easement
A right enjoyed by one landowner over another’s land, such as a right of way, which may affect the property if created by deed or long use.
Practical Solutions for Defects
If defects are found, consider:
- Requesting missing documents or statutory declarations
- Obtaining indemnity insurance for risks such as missing deeds or breaches of covenant
- Requiring the seller to remedy defects before exchange of contracts
Exam Warning
In SQE1, you may be asked to identify whether a document is a good root of title or to spot a defect in the chain. Always check the date, parties, execution, and whether the document deals with the whole property.
Revision Tip
When reviewing an epitome of title, use a checklist: good root, unbroken chain, execution, stamping, property description, encumbrances, and land charges searches.
Key Point Checklist
This article has covered the following key knowledge points:
- The epitome of title is the main evidence of ownership in unregistered land.
- A good root of title must be at least 15 years old, deal with the whole property, and be free from doubt.
- There must be an unbroken chain of ownership from the good root to the seller.
- Each deed must be properly executed and, if pre-2003, properly stamped.
- All mortgages must be discharged, and evidence provided.
- Land charges searches must be carried out against all estate owners for their period of ownership.
- Common defects include missing documents, breaks in the chain, improper execution, and undischarged mortgages.
- Practical solutions include statutory declarations, indemnity insurance, or requiring the seller to remedy defects before exchange.
Key Terms and Concepts
- epitome of title
- good root of title
- chain of ownership
- land charges search
- restrictive covenant
- easement
