Investigation of title - Analyzing an epitome of title and d...

Learning Outcomes

This article explains the investigation of title in unregistered land, including:

• Analysis of an epitome of title
• Identification of a good root of title
• Deduction of ownership
• Legal requirements for establishing an unbroken chain of ownership
• Common defects and practical solutions for SQE1-style scenarios
• Triggers for compulsory first registration in historic transactions
• Correct execution and stamping of deeds across different periods
• Land Charges searches: conduct and interpretation
• Issues arising from co-ownership, powers of attorney, and positive covenants (chains of indemnity)
• Appropriate remedies: statutory declarations, indemnity insurance, and first registration prior to exchange
• Impact of failure to register within statutory deadlines on the legal and equitable status and priority of dispositions

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, with a focus on the following syllabus points:

• 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
• How and when compulsory first registration is triggered (sale for value, assent, gift, grant of a lease for more than seven years) and the consequences of failing to register within two months
• Conducting Land Charges searches (K15) against all estate owners, including name variants and historic counties, and distinguishing Land Charges from local land charges
• Recognising the impact of co-ownership, survivorship, overreaching, and the role of personal representatives
• Managing positive covenants in unregistered land (chains of indemnity), restrictive covenants, and easements referenced in pre-root documents

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.

1. What are the minimum requirements for a document to be a good root of title in unregistered land?
2. Why is it important to check for an unbroken chain of ownership in an epitome of title?
3. What are common defects that may arise when analyzing an epitome of title?
4. 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. Investigation is undertaken before exchange; title to unregistered land then passes on legal completion when the price is paid and the transfer deed is handed over. Following completion of a qualifying transaction, an application for first registration of the buyer’s title must be made within two months.

Compulsory first registration has applied across England and Wales since 1 December 1990 on specified triggering events (including a conveyance on sale of a freehold, an assent, a deed of gift, and from 13 October 2003 the grant/assignment of a lease of more than seven years). Additional triggers were introduced earlier on a piecemeal basis and, since 1 April 1998, gifts and assents also require registration. Where investigation reveals a past trigger that was not followed by registration, the seller should rectify that by applying for first registration before exchange. Failure to register within two months of a triggering event renders the legal transfer void as regards the legal estate, with title reverting to the transferor who holds as bare trustee and with potentially adverse priority consequences until registration is perfected.

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.

Key Term: index map search (SIM)
A search at HM Land Registry to confirm whether land is registered, subject to a pending first registration, or affected by a caution against first registration, carried out using a plan of the property.

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. The seller’s solicitor collates the original deeds (often from a lender if the property is mortgaged, supported by an undertaking to hold to order and not deal pending redemption) and produces the epitome for the buyer’s solicitor to review before exchange. Originals are handed over on completion (or certified copies if selling only part of a title).

The epitome should include:

• The good root of title (usually a conveyance on sale at least 15 years old)
• All subsequent conveyances, mortgages, deeds of release/receipted mortgages, assents, and relevant powers of attorney
• Evidence of any changes of name, deaths, or appointments of personal representatives/trustees (including grant of representation)
• Cross-referred documents mentioned in the root or later deeds (plans, easements, or covenants contained in earlier conveyances)
• Copies of land charges searches and any relevant certificates
• Any memoranda endorsed on deeds (e.g., sale of part, assent, severance of joint tenancy)

On sale of part, the epitome should show how the retained and sold portions are described (commonly by plan and endorsements on the original deed). Include any endorsements evidencing releases of part from mortgages (DS3 on registered titles, or receipted mortgage/release deed in unregistered titles).

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.

Under section 44 of the Law of Property Act 1925, the root should be at least 15 years old at the date of the contract, deal with the whole legal and beneficial interest, contain an adequate property description (often by reference to a plan), and be free from defects or doubt. A conveyance on sale is preferred, as it offers a “double guarantee”: title would have been investigated for a minimum period at the time of that transaction, and your own investigation begins at least 15 years before the present sale. A legal mortgage may suffice but is less satisfactory; a deed of gift or an assent may be used, but they do not carry the same assurance of previous investigation. Where a power of attorney was used to execute a deed, the power must be produced and verified.

Key Term: short root of title
A root that does not satisfy statutory criteria (e.g., less than 15 years old or otherwise deficient). Accepting a short root risks being bound by pre-root matters without knowledge; avoid unless justified and agreed with any lender, often coupled with indemnity insurance.

From the good root, there must be an unbroken chain of ownership to the current seller. The chain is proved by successive deeds and events:

• Sales and purchases evidenced by properly executed conveyances/transfers
• Releases or receipts evidencing discharge of mortgages
• Assents by personal representatives supported by a grant of representation
• Evidence of changes of name (e.g., marriage certificate) and deaths (death certificate)
• Any severance of beneficial joint tenancy or appointment of additional trustees

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.

Where co-ownership features in the chain, identify whether the beneficial interest was held as joint tenants or as tenants in common. For beneficial joint tenants, survivorship applies; take evidence of death and, in unregistered land, the new chain follows the survivor. For tenants in common, ensure overreaching of beneficial interests by paying capital money to at least two trustees or a trust corporation on a subsequent sale.

Key Term: overreaching
The statutory process whereby a buyer paying capital money to two trustees (or a trust corporation) takes free of beneficial interests, which transfer to the sale proceeds.

Key Term: Form A restriction
In registered land, a standard restriction indicating that capital money must be paid to at least two trustees or a trust corporation; in unregistered investigations, analogous overreaching considerations arise where title shows a tenancy in common.

Pre-root documents generally need not be produced, save where a post-root deed refers to a plan, easements, covenants, or a power of attorney contained in a pre-root deed. In those cases, the referenced earlier document or plan must be included in the epitome and reviewed.

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 or unexplained gaps.
• Execution and Stamping: Check each deed is executed as a deed (requirements differ before and after 31 July 1990) and, if dated before December 2003, is properly stamped for stamp duty.
• Property Description: Verify that the description of the property (and any plan references) is clear and consistent throughout all documents.
• Encumbrances: Identify mortgages, easements, restrictive covenants, rentcharges, or other burdens. Check for evidence of discharge of mortgages and whether covenants/easements are properly carried through and enforceable.
• 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.
• Compulsory Registration: Check whether any disposition in the chain should have triggered first registration. If so, require registration before exchange.

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. Use form K15 and search for the full period of ownership (and back to 1926 where dates are uncertain), including relevant name variants and historic county details.

Deed execution varies by period. After 31 July 1990, a deed must be in writing, make clear it is intended to be a deed, be signed in the presence of a witness who attests the signature, and be delivered as a deed (per s 1 of the Law of Property (Miscellaneous Provisions) Act 1989). Before that date, deeds needed to be signed, sealed, and delivered; absence of a seal (or evidence it was present at the time of execution) can be fatal to passing the legal estate.

Stamp duty applied to documents prior to the introduction of Stamp Duty Land Tax in December 2003: ad valorem stamp duty for conveyances on sale (subject to certificates of value where applicable), and the Inland Revenue Particulars Delivered (PD) stamp (required from 1931 for certain documents). Unstamped deeds are inadmissible in evidence; defects should be remedied (late stamping with penalties and interest) at the seller’s cost.

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 of truth explaining the gap, corroborating evidence, and/or indemnity insurance. Where a power of attorney was used, ensure the power is produced.
• Break in Chain: If a transfer or assent is not evidenced, obtain the missing deed or explain the gap by statutory declaration, backed by independent evidence (e.g., copy conveyancing file, contemporaneous correspondence, or endorsed memoranda).
• Improper Execution: A deed not properly executed may not transfer legal title. Consider a confirmatory deed from the relevant party (still alive and able to execute), or indemnity insurance if remedial execution is impossible.
• Unpaid Stamp Duty: An unstamped deed is inadmissible as evidence; arrange late stamping with HMRC and pay any penalties/interest before reliance as a root or link.
• Undischarged Mortgages: Require evidence of discharge (receipted mortgage deed, deed of release, or a lender’s formal release). If the lender no longer exists, consider statutory declarations and insurance, or contact the successor entity.
• Unregistered Land Charges: If a registrable equitable interest (e.g., restrictive covenant Class D(ii) or equitable easement Class D(iii)) is not registered against the correct name, it may not bind a buyer for value. Conversely, adverse entries on a K15 must be addressed or insured against.
• Compulsory Registration Not Complied With: If a past disposition triggered first registration and it was not done, require the seller to register the title before exchange. Failure to register within two months renders the legal transfer void, relegating the buyer’s interest to equitable status, with resultant priority risks.
• Positive Covenants: Positive covenants do not run with the freehold; check whether a chain of indemnity covenants exists, ensuring the seller gave and took indemnities on each transfer. Anticipate the buyer may need to give an indemnity to the seller on completion.
• Deed of Gift and Insolvency Risk: Where title passed by gift, conduct bankruptcy searches against the donor covering the five years following the gift. Insolvency during that period may enable setting aside the gift, so insurance may be needed.

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.

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. If the lender no longer exists, a statutory declaration with corroborative evidence and suitable indemnity insurance may be appropriate. Without discharge evidence, 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, produce the missing deeds, or supply a statutory declaration with supporting evidence (e.g., historic correspondence or endorsements) to account for the missing period. Otherwise, the buyer cannot be sure the seller has good title.

Worked Example 1.3

The seller’s solicitor proposes a 2008 deed of gift as the root. An earlier 1990 conveyance on sale exists but is not proposed as the root. The gift donor later went bankrupt in 2011.

Question: Should the 2008 gift be accepted as the root of title?

Answer:
A gift can be a root, but it is less satisfactory than a conveyance on sale. Here, a 2011 bankruptcy within five years of the 2008 gift creates a material risk of the gift being set aside. Prefer the 1990 conveyance as the root (it meets the 15-year rule and carries the double guarantee). If the 2008 gift must be relied upon as a link, obtain full bankruptcy searches and indemnity insurance.

Worked Example 1.4

An epitome shows owners named “Robert Jones” (1954–1990) and “Bob Jones” (the same period); later title refers to “Alice Browne” who appears to be “Alice Brown” after marriage. The property lies in a county whose name changed in 1974.

Question: How should Land Charges searches be conducted?

Answer:
Conduct K15 searches against all estate owners for their precise periods of ownership, including name variants (Robert/Bob and Brown/Browne) and historic counties as well as current ones. Where acquisition dates are unclear, search back to 1926. You may rely on valid historic search certificates if the subsequent disposition completed within their 15 working day priority periods; otherwise, re-search.

Key Document Checks

When reviewing each document in the epitome:

• Confirm the parties’ names match throughout the chain, including variants and changes (marriage/deed poll)
• Check for evidence of deaths, changes of name, or appointments of trustees and personal representatives, including grants of representation
• Ensure all deeds are executed as deeds (proper requirements by date) and, if pre-2003, are correctly stamped (ad valorem and/or PD stamp as applicable)
• Verify that all mortgages have been discharged (receipts/releases) and that any sale of part is correctly endorsed/released
• Identify and advise on any restrictive covenants or easements, including those cross-referred from pre-root deeds
• Confirm that all land charges searches are up to date and cover the correct periods, names, and counties (and that they distinguish Land Charges from local land charges)
• Check whether any transactions should have triggered first registration; if so, require the seller to register title before exchange

Key Term: caution against first registration
A protection lodged by someone claiming an interest in unregistered land, ensuring they are notified of any application for first registration so their claim can be addressed.

Practical Solutions for Defects

If defects are found, consider:

• Requesting missing documents or statutory declarations, with corroborating evidence
• Obtaining indemnity insurance for risks such as missing deeds, undischarged mortgages, or breaches of covenant (avoid approaching beneficiaries of restrictive covenants before arranging insurance, as notice may prejudice cover)
• Requiring the seller to remedy defects before exchange of contracts (e.g., rectify stamping, secure discharge evidence, or register title if compulsory registration was triggered)
• Using confirmatory deeds where execution is defective and parties are available to rectify
• Applying to the Upper Tribunal (Lands Chamber) under s 84 Law of Property Act 1925 to discharge or modify restrictive covenants where appropriate (often a last resort given time/cost)
• Advising on overreaching and appointment of additional trustees where beneficial tenants in common are involved in a disposition

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. Distinguish Land Charges (K15) from local land charges searches, and be alert to compulsory registration triggers and the consequences of failing to register on time.

Revision Tip

When reviewing an epitome of title, use a checklist: good root, unbroken chain, execution, stamping, property description, encumbrances, land charges searches, and compulsory registration triggers. Conduct a SIM search to confirm registration status and any cautions against first registration.

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; a conveyance on sale is preferred
• There must be an unbroken chain of ownership from the good root to the seller, supported by properly executed and stamped deeds
• Execution requirements differ before/after 31 July 1990; pre-2003 deeds must be stamped correctly or remedied before reliance
• All mortgages must be discharged, and evidence provided (receipts/releases)
• Land charges searches must be carried out against all estate owners for their period of ownership, covering name variants and historic counties
• Distinguish Land Charges searches from local land charges searches; adverse Land Charges entries must be resolved or insured
• Compulsory first registration may be triggered by earlier transactions; failure to register within two months voids the transfer of the legal estate and risks loss of priority
• Co-ownership implications (survivorship, overreaching) must be addressed; appoint additional trustees where needed for dispositions involving tenants in common
• Practical solutions include statutory declarations, confirmatory deeds, indemnity insurance, and requiring the seller to remedy defects (including first registration where due)

Key Terms and Concepts

• epitome of title
• good root of title
• chain of ownership
• land charges search
• restrictive covenant
• easement
• index map search (SIM)
• short root of title
• Form A restriction
• overreaching
• caution against first registration