Investigation of title - Registered and unregistered titles

Learning Outcomes

This article covers the investigation of title for SQE1 FLK2 conveyancing, including:

• Distinguishing between registered and unregistered titles, and explaining why the method of proving title differs and why that matters for buyers, sellers, and lenders.
• Identifying the correct documents for registered land, interpreting each of the three registers and the title plan, and assessing the impact of restrictions, notices, and potential overriding interests on marketability.
• Compiling and analysing an epitome of title for unregistered land, selecting a good root, checking the chain of ownership, and verifying execution, stamping, and Land Charges search results.
• Planning and carrying out practical protective steps, such as priority searches (OS1/OS2 and K15/K16), arranging discharge of existing mortgages, and ensuring effective overreaching of beneficial interests on completion.
• Spotting common title defects and risk areas in exam-style fact patterns, including non-absolute class of title, missing links, unregistered burdens, and registration triggers, and choosing appropriate remedial options such as additional documentation, undertakings, registration applications, or indemnity insurance.
• Applying these principles to multiple-choice and scenario-based questions so you can evaluate title quality swiftly, identify issues before exchange, and advise confidently on how they affect the client’s objectives.

SQE1 Syllabus

For SQE1, you are required to understand the investigation of title in conveyancing for registered and unregistered land, with a focus on the following syllabus points:

• The distinction between registered and unregistered titles and why it matters in conveyancing.
• The process and documentation for investigating registered titles (including official copies and title plans).
• The process and documentation for investigating unregistered titles (including epitome of title and good root of title).
• Key risks, defects, and practical issues in title investigation.
• The implications for buyers, sellers, and lenders in property transactions.

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 documents must a seller provide to deduce title in a registered land transaction?
2. What is a “good root of title” and why is it important in unregistered land?
3. Name two key risks for a buyer when investigating an unregistered title.
4. True or false? A buyer can always raise requisitions on title after exchange of contracts.

Introduction

When acting in a property transaction, you must check that the seller owns what they are selling and that the buyer will receive good title. The method for investigating title depends on whether the land is registered or unregistered. In registered land the title is proved by official copies from HM Land Registry and investigated primarily by reviewing the three registers and the filed title plan. In unregistered land, ownership and burdens are proved by a chain of paper deeds: the epitome of title must start with a good root and continue through an unbroken sequence to the present owner. This difference drives the documents you require, the searches you make, and the legal risks you must anticipate for the buyer and lender.

Compulsory first registration now applies in all parts of England and Wales to most trigger events (e.g., a sale of freehold, an assent, a gift, a grant of a lease over seven years). If unregistered title appears in a transaction, always consider whether an earlier dealing should have triggered registration and insist, where necessary, that the defect is remedied by registering before the sale proceeds.

Key Term: official copies
Official copies are certified extracts from the Land Registry showing the current state of the title, including ownership, class of title, and any burdens or restrictions. They must be recent (commonly less than six months old) and are obtained using Land Registry form OC1; associated documents filed under the title are requested on OC2.

Key Term: title plan
The filed plan accompanies the official copies and shows the general boundaries of the registered title by reference to the Ordnance Survey map. It is used to confirm the physical extent of the land being conveyed and to check colouring/hatching that may denote rights or prior transfers.

Key Term: property register
This register describes the land and estate (freehold or leasehold) and may summarise rights benefiting the land (e.g., rights of way). It can also refer to exclusions (e.g., mines and minerals) and cross-refer to filed documents.

Key Term: proprietorship register
This register identifies the current proprietor(s), their address(es), the class of title, and any restrictions on dealings (e.g., Form A restriction on dispositions by a sole proprietor under which capital money arises).

Key Term: charges register
This register records adverse matters affecting the land (e.g., mortgages, restrictive covenants, easements burdening the land, and notices protecting third-party rights).

Key Term: search from date
The specific date and time the official copies were issued. It must be quoted when making pre-completion priority searches and is necessary to assess whether any later entries might exist.

Key Term: class of title
The quality of the registered title, such as absolute, possessory, qualified (for freehold or leasehold), or good leasehold (leasehold only). Absolute title is the strongest and most common.

Registered Titles

Most land in England and Wales is now registered. The Land Registry maintains a central record of ownership and interests affecting registered land. Investigation of title in these cases is usually more straightforward than in unregistered land, but it still requires careful analysis and timely priority protection.

Deduction and Investigation of Registered Title

The seller’s solicitor deduces title by providing the buyer’s solicitor with:

• Official copies of the register of title (less than six months old).
• The title plan.
• Official copies of any documents referred to in the register (such as deeds containing covenants or easements).

The buyer’s solicitor must check:

• The property description and boundaries in the property register and title plan match the contract and the buyer’s expectations.
• The seller is the registered proprietor in the proprietorship register.
• The class of title is appropriate (preferably absolute); if possessory, qualified, or good leasehold, assess the implications and consider whether an upgrade or further evidence will be needed.
• The charges register for mortgages, covenants, easements, leases, and notices protecting estate contracts or home rights.
• The proprietorship register for restrictions (e.g., a Form A restriction indicating co-ownership or restrictions requiring consent from a third party).

Key Term: restrictions
Restrictions limit or condition how dispositions of the title can be registered. Common forms include Form A (co-ownership) and restrictions protecting a lender’s or trustee’s interests, requiring specified consents or steps before registration of a transfer or charge.

Key Term: overriding interests
Interests that bind a buyer despite not being substantively registered (e.g., certain legal easements, legal leases ≤7 years, local land charges, and interests of persons in actual occupation meeting statutory criteria).

Scrutinise each register closely:

• Property register: confirm the estate (freehold/leasehold), any rights benefiting the land (and any obligations to contribute to maintenance), and exclusions such as mines and minerals.
• Proprietorship register: verify the seller’s identity and address; note the class of title; identify restrictions that must be complied with to register the buyer.
• Charges register: identify mortgages (and if a sale of part is proposed, ensure the lender’s consent to release part will be obtained), restrictive covenants (and whether they are still enforceable), easements burdening the property, leases granted out of the title, and notices protecting third-party interests.

Consider whether any rights or burdens are only summarised: if the register refers to a filed deed, obtain and review it in full to interpret obligations and scope of rights.

Practical Steps

• Check for any restrictions on dealings (e.g., lender’s consent, Form A restriction). Plan how compliance will be demonstrated on completion and registration.
• Identify and specify all burdens and matters to which the property is sold subject in the contract. Avoid vague references—copy relevant covenants/easements and highlight operative clauses.
• Investigate whether potential overriding interests may exist. Use replies to enquiries, local and drainage searches, and the buyer’s physical inspection to uncover occupiers and obvious rights.
• Protect priority and update the title position by a pre-completion OS1 (whole) or OS2 (part) search.

Key Term: pre-completion HM Land Registry search
An OS1/OS2 search updates the title position and gives a 30 working-day priority period for the buyer’s or lender’s application to register. The application must be submitted before noon on the expiry date to retain priority.

• Plan mortgage discharge. Obtain undertakings from the seller’s solicitor to redeem any registered charge(s) on or immediately after completion and to provide evidence of discharge.

Key Term: DS1
In registered land, DS1 is the discharge of a charge over the whole of a title, often submitted electronically. Confirmation of electronic discharge or e-DS1 may be provided.

Key Term: DS3
DS3 is used to release part only of the land from a registered charge and should be accompanied by a plan identifying the released part.

• Report to the buyer and lender on all risks, including any non-standard class of title, onerous covenants, unregistered occupiers, or rights likely to have overriding status.

Worked Example 1.1

Scenario: You act for a buyer of a registered freehold house. The official copies show a restriction requiring the consent of a lender to any disposition. What should you do?

Answer:
You must ensure the seller’s solicitor provides evidence that the lender will consent to the sale and will discharge the mortgage on or before completion. This should be confirmed by an undertaking. The application to register the buyer must show compliance with the restriction (e.g., consent lodged or discharge completed). Obtain a pre-completion OS1 search and submit the buyer’s application within the priority period.

Worked Example 1.2

Scenario: You act for a lender taking a first charge over registered land. Your OS1 priority period expired at noon yesterday. You learn a second lender lodged an OS1 immediately after your priority ended and has now submitted its application. What are the implications?

Answer:
If your application was not lodged before noon on the final day of your OS1 priority, you lose protected priority. The second lender’s application takes precedence and could be registered as the first charge. This is a critical risk and may amount to negligence. Always diarise priority expiry and submit the registration in time to protect the lender’s position.

Unregistered Titles

A minority of land remains unregistered. Here, ownership is proved by a chain of paper documents. Investigation of title is more complex and riskier, with additional focus on deed formalities, stamping, and the Land Charges regime.

Deduction and Investigation of Unregistered Title

The seller’s solicitor deduces title by providing an epitome of title—a chronological list of documents (with copies) showing ownership from a “good root of title” to the present.

Key Term: epitome of title
A schedule of title deeds and documents (with copies) evidencing ownership of unregistered land, starting with a good root of title and including intervening mortgages, assents, and relevant searches.

Key Term: good root of title
A document (usually a conveyance on sale) at least 15 years old at the date of contract, dealing with the whole legal and equitable interest in the property, containing an adequate description of the land, and casting no doubt on title. It is preferred where the transaction was for value (the “double guarantee” effect).

The buyer’s solicitor must:

• Check for an unbroken chain of ownership from the good root to the seller, including all transmissions (conveyances, mortgages, deeds of gift, assents) and any releases/discharges of mortgages.
• Ensure all documents are properly executed as deeds for their date, and properly stamped.

Execution formalities:

• Deeds executed on or after 31 July 1990 by individuals must be signed, witnessed, and delivered as a deed; companies may execute under Companies Act 2006, section 44 (e.g., two authorised signatories, or a director in the presence of a witness).
• Older deeds must comply with pre-1990 sealing requirements; non-compliance can prevent transfer of legal estate.

Stamping formalities:

• Conveyances must show ad valorem stamping or certificate of value and PD stamp as applicable for their era. Absence may require late stamping with penalties; an unstamped conveyance may be inadmissible in evidence and not a good root.

• Check the property description and any plans are consistent across the chain and reflect the land agreed in the contract. Identify rights acquired or reserved by reference to earlier deeds mentioned in the root.

• Identify all burdens (e.g., covenants, easements), confirm enforceability, and ensure they are specified in the contract.

• Conduct Land Charges searches against all estate owners since 1926 for their periods of ownership, including variations of names and historic counties.

Key Term: Land Charges search
A search at the Land Charges Department against the names of previous estate owners to reveal registered burdens (e.g., restrictive covenants: Class D(ii); estate contracts: Class C(iv); puisne legal mortgages: Class C(i); and home rights: Class F). Use K15 for full searches and K16 for bankruptcy-only entries.

If the title should have been registered following an earlier trigger event (e.g., a post-1990 transfer for value or a lease grant >7 years) but was not, require the seller to remedy by first registering before exchange or, at minimum, before completion. Without registration, the buyer and lender take significant risk that Land Registry may refuse the seller’s unregistered title.

Key Term: caution against first registration
A mechanism to protect an interest over unregistered land by ensuring notice is given to the cautioner if an application for first registration is made, allowing an opportunity to object and establish the claimed interest.

Practical Steps (Unregistered Titles)

• Raise requisitions on any missing documents, inconsistencies, defects in execution/stamping, or unclear property descriptions.
• Check for evidence of discharge of old mortgages (e.g., vacating receipt on the face of the mortgage deed or a separate deed of release). If absent, require proof or a lender’s discharge.
• Advise the buyer and lender of risks, including unknown burdens and defects that may prevent first registration.
• Carry out K15 pre-completion search against the seller (and K16 against an individual buyer where borrowing), securing a 15 working-day priority period to complete free of entries registered after the search.
• Consider indemnity insurance where defects cannot feasibly be remedied (e.g., potential breach of a restrictive covenant with unknown beneficiary), but do not approach the beneficiary before insuring as that may invalidate cover.

Worked Example 1.3

Scenario: You act for a buyer of unregistered land. The epitome of title includes a conveyance dated 1990, a mortgage dated 1995, and an assent dated 2010. Which is the best candidate for a good root of title?

Answer:
The 1990 conveyance is the best candidate, as it is over 15 years old and deals with the whole legal and equitable interest for value. A mortgage is not suitable as a root because it does not transfer title to the owner; an assent may work, but it is not for value and often refers back to earlier title.

Worked Example 1.4

Scenario: Your K15 searches reveal a Class D(ii) entry registered against a former owner’s name during their period of ownership. The contract is silent on restrictive covenants. What should you do?

Answer:
Obtain the official copy (K19) of the Land Charge to identify the covenant terms and benefiting land. If enforceable and ongoing, insist the contract expressly states the sale is subject to that covenant and advise the buyer on its impact. If the covenant is obsolete or incorrectly registered (e.g., wrong owner period), consider requiring removal or a seller undertaking/insurance. Proceed to exchange only after the position is satisfactorily addressed.

Key Risks and Defects

Registered Land

• Restrictions or notices that prevent or delay registration of the buyer (e.g., restrictions requiring consents, trustee-related restrictions).
• Non-absolute class of title (possessory, qualified, or good leasehold) raising risk of adverse claims or gaps in landlord’s title; consider whether an upgrade application is viable and whether lender is content.
• Undisclosed burdens and overriding interests:
  • Persons in actual occupation whose interest meets statutory criteria.
  • Legal easements arising by implication or prescription that are obvious on inspection, known to the buyer, or exercised within the preceding year.
  • Local land charges revealed by LLC1.
• Priority loss due to failure to lodge applications within OS1/OS2 priority period—can reorder mortgage priorities.
• Mortgages not discharged on completion—ensure DS1/ED (whole) or DS3 (part) and undertakings are in place.

Unregistered Land

• Missing links in the chain of ownership; inadequate property description; reliance on documents not properly executed or stamped.
• Unregistered burdens that may bind the buyer:
  • Interests registrable as Land Charges but omitted (often void against a buyer for value).
  • Non-registrable equitable interests (e.g., beneficial interests under a trust) binding a buyer unless overreached or unless the buyer qualifies as bona fide purchaser of the legal estate for value without notice.
• Bankruptcy entries affecting owners or buyers.
• Undischarged mortgages or other financial burdens lacking evidence of release.
• Failure to first register following a trigger event—risk that Land Registry refuses or downgrades the title.

Exam Warning

If the buyer’s solicitor fails to investigate title thoroughly and defects are discovered after exchange, the buyer may have no remedy and must complete the purchase. Always raise all requisitions before exchange.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• In registered land, title is deduced by official copies and a filed title plan; review the property, proprietorship, and charges registers in detail, and obtain any filed documents referred to.
• In unregistered land, title is deduced by an epitome of title beginning with a good root, with an unbroken chain of ownership and properly executed and stamped documents.
• A good root must be at least 15 years old, deal with the whole interest, adequately describe the land, and not cast doubt on title; conveyances for value are preferred.
• Protect the transaction by pre-completion OS1/OS2 searches (registered land) and K15 (unregistered land), noting their distinct priority periods and consequences of expiry.
• Restrictions, notices, and overriding interests must be identified and addressed; specify all burdens in the contract and arrange compliance or removal on completion.
• Ensure discharge of existing mortgages (DS1/ED for whole; DS3 for part) and obtain appropriate undertakings.
• Co-ownership indicators (e.g., Form A) require awareness of overreaching and receipt of capital money by two trustees on a sale by a sole proprietor.
• Land Charges searches must be made against all estate owners since 1926 for their periods of ownership, capturing name variants and historic counties; use K19 to obtain official copies of entries.
• If a prior dealing should have triggered first registration, require the seller to register before exchange or completion.
• Defects may be managed by obtaining missing documents, undertakings, upgrading class of title, or indemnity insurance (used carefully, without tipping off a beneficiary).

Key Terms and Concepts

• official copies
• title plan
• property register
• proprietorship register
• charges register
• search from date
• class of title
• restrictions
• overriding interests
• pre-completion HM Land Registry search
• DS1
• DS3
• epitome of title
• good root of title
• Land Charges search
• caution against first registration