Core principles of land law - Title to Land (registered and ...

Learning Outcomes

This article covers title to land (registered and unregistered) in England and Wales, including:

• Distinguishing between legal and equitable ownership, the core statutory formalities, and their practical consequences
• Proving title in both systems, the evidence required, and the impact of defects or missing documentation
• Recognising estates and interests (freehold, leasehold, and third-party rights), their creation, validity, and enforceability
• Creating, protecting, and prioritising rights through registration, land charges, notices, restrictions, and the doctrine of notice
• Advising on third-party rights, with emphasis on overriding interests in registered land, protection of equitable rights in unregistered land, and when overreaching applies
• Applying these principles to conveyancing scenarios involving transfer, investigation, and validation of title, addressing defects, competing interests, and securing marketable title

SQE2 Syllabus

For SQE2, you are required to understand title to land (registered and unregistered), including proof of title in both systems, the registration and protection of third-party rights, and the operation of overreaching, with a focus on the following syllabus points:

• the distinction between estates and interests in land, with emphasis on freehold and leasehold estates, and how these are created and transferred
• the differences between legal and equitable rights, including the statutory lists of legal interests and the requirements for valid legal or equitable creation
• the structure, content, and practical operation of the registered land system under the Land Registration Act 2002, including the role of property, proprietorship, and charges registers
• the process of proof of title in unregistered land: deducing title by deeds, the chain of ownership requirement, and problems with defects or lost deeds
• how third-party rights are created, protected, and enforced under both systems, including key methods such as notices, restrictions, land charges, and the doctrine of notice
• the mechanisms and effect of overreaching, including when it is available and what rights it extinguishes from the land
• the procedural aspects and legal significance of investigating title, conducting searches, and raising requisitions in conveyancing transactions
• the implications of common title problems: missing deeds, adverse entries, discrepancies on registers, co-ownership complications, and situations triggering compulsory first registration

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. Briefly define the main difference between legal title and equitable title to land.
2. Outline the main difference in how proof of ownership is demonstrated in unregistered and registered land.
3. Which types of third-party rights must be registered as land charges to bind a purchaser in unregistered land?
4. What is 'overreaching,' and how does it protect a purchaser of land from certain third-party interests?

Introduction

Title to land is an essential framework for all property transactions, supporting the work of practitioners and conveyancers throughout England and Wales. The legal framework features two parallel but distinct systems: the older unregistered model, grounded in deducing ownership via paper deeds; and the modern registered title system, a product of ongoing legislative reform and compulsory registration introduced by the Land Registration Act 2002. Whether dealing with registered or unregistered land, property professionals must distinguish between legal and equitable estates and interests and manage the varied mechanisms for creating, protecting, and contesting property rights, especially when third-party interests arise. A firm understanding of these principles is a basis for handling scenario-based transactional and advisory questions in SQE2, supporting effective client advice and risk management during conveyancing.

Key Term: legal estate
An estate in land—typically freehold (fee simple absolute in possession) or leasehold (term of years absolute)—which confers legal ownership when created with required formalities under statute.

Key Term: equitable interest
A right in or over land recognised by equity which is not capable of being, or has not been, created as a legal interest; includes interests arising under trusts, restrictive covenants, and certain contracts or defective legal interests.

Legal and Equitable Title to Land

All property rights in land are classified as either legal or equitable. This distinction derives from both statutory provisions (notably the Law of Property Act 1925) and the historical development of equity complementing the rigidity of the common law. Legal estates and interests are exhaustively listed in statute and must comply strictly with prescribed formalities—generally requiring creation by deed, with registration where necessary. Legal rights are enforceable against the whole world, offering security and marketability of title.

Key Term: legal ownership
The formal title to land or an interest in land recorded on the title deeds (unregistered land) or on the official register (registered land), entitling the holder to deal with and transfer the land.

Key Term: equitable ownership
The beneficial interest in land, often arising from a trust or from contribution to the purchase price, conferring rights to the benefits (such as proceeds of sale) rather than rights to manage or dispose of the legal title.

Equitable interests arise in several principal ways, including:

• where the interest is not recognised as a legal interest under LPA 1925 (e.g. restrictive covenants, beneficial interests under a trust, estate contracts)
• where the procedural or substantive requirements for legal validity are not satisfied (e.g. incorrect execution, absence of deed, failure to register where necessary)
• where equitable doctrines (such as constructive or resulting trusts) arise from the conduct of the parties

Legal title holders can generally transfer or mortgage the property, but they may do so subject to the equitable claims of others—such as co-owners, family members, or parties to a contract for sale. The equitable title offers protection for those with a legitimate expectation of an interest in the property—most obviously where contributions (financial or otherwise) are made.

Key formalities:

• Legal estates and interests must be created by deed (see s. 52 LPA 1925; s. 1 LP(MP)A 1989), except where short leases (three years or less) or certain exceptions apply.
• Equitable interests typically require a written and signed document (s. 53 LPA 1925), unless arising by operation of law (e.g. an implied trust).

Title to Unregistered Land

Unregistered land is the part of England and Wales where title has not yet been brought onto the central register of HM Land Registry. Ownership in this system is proved, as a matter of practice and law, by producing a sequential chain of paper title deeds evidencing the transfer of the legal estate—typically covering at least the last 15 years without a break.

Investigation and Deduction of Title in Unregistered Land

• The seller’s solicitor must investigate the client’s title, assemble all relevant title deeds and documents, and prepare an epitome of title (a schedule of material deeds and documents).
• The epitome must commence with a good root of title—a document satisfying the requirements of s. 44 LPA 1925: it must be at least 15 years old, cover the whole legal and equitable interest, adequately describe the land, and cast no doubt on the owner’s title.

Key Term: root of title
A deed, usually at least 15 years old, which demonstrates full ownership of the land and from which title can be traced to the current owner without break or defect. A conveyance on sale is preferred, as the transaction is likely to have been investigated previously ("double guarantee").

In practice, the buyer’s solicitor will:

• scrutinise the epitome (including all cross-referenced and material documents such as old conveyances, assents, mortgages, and estate documents)
• check the chain of ownership for any break, gap, or inconsistency
• verify the actual description of the property and plan
• identify and analyse any covenants, easements, third-party rights, or potential incumbrances

Key Term: title deeds
The physical documents evidencing the chain of ownership and the legal rights over unregistered land.

Any break in the chain of deeds, insufficient description of the land, or missing documentation can call the validity of title into question, creating marketability problems or delays in registration.

Key Term: epitome of title
A chronological schedule of material title deeds and documents, with attached copies, setting out the evidence supporting the vendor’s title from the good root up to the present.

If the chain is incomplete or the seller cannot produce a good root, the best available class of title upon first registration may be possessory or qualified, which is less secure than absolute.

Searches in Unregistered Land

A key aspect of due diligence involves searches at the Land Charges Department to identify third-party interests registered against the owner’s name:

Key Term: land charge
An interest affecting unregistered land that must be registered (usually against the current estate owner’s full name at the Land Charges Registry) in order to be binding upon purchasers for value.

The main classes include:

• C(i) Charge: puisne mortgages (legal mortgages where lender does not hold original deeds)
• D(ii): restrictive covenants (post-1925)
• D(iii): equitable easements (post-1925)
• C(iv): estate contracts (including options to purchase, rights of pre-emption, and contracts for sale)
• F: home rights under the Family Law Act 1996

A failure to register a registrable land charge renders it void against a subsequent purchaser for value, regardless of knowledge—this harsh regime was confirmed in Midland Bank Trust Co Ltd v Green [1981]. Conversely, registration constitutes actual notice to all, and binds any subsequent purchaser, regardless of actual knowledge.

Effect of Searches and Registration

• The search must be conducted against all names appearing in the title deeds for their years of ownership (allowing for variants and historic county boundaries as relevant).
• The system operates independently of physical inspection, highlighting the strictly personal right of the registered interest.

Key Term: doctrine of notice
In unregistered land, the principle that certain equitable interests (mainly pre-1926 and those not registrable as land charges) will only bind a purchaser if they have actual, constructive, or imputed notice of the right.

Interests under a trust of land (express, implied, constructive, or resulting), and certain pre-1926 equitable interests, are only enforceable if the purchaser is not a bona fide purchaser for value of a legal estate without notice (Equity’s Darling).

Overreaching

Key Term: overreaching
A statutory process enabling a purchaser to take land free of certain equitable interests (especially under trusts of land) by ensuring that capital monies are paid to at least two trustees (or a trust corporation). The beneficial interest then attaches to the proceeds of sale.

• Overreaching cannot be used to displace interests protected by registration as a land charge, but is important for beneficial interests under trusts, which cannot be registered as land charges.
• If the purchase money is paid to a single trustee or legal owner, a beneficiary’s equitable interest may bind the land unless the purchaser is bona fide for value without notice; payment to two trustees removes the risk.

Worked Example 1.1

A buyer purchases an unregistered property from a sole legal owner. After completion, the seller’s spouse claims an interest due to contributions to the purchase price. The buyer had met the spouse during viewing but made no enquiry about her interest. Is the buyer bound by the spouse’s claim?

Answer:
If the buyer failed to make reasonable enquiries despite circumstances putting them on notice, and the spouse’s occupation or contribution was apparent, the buyer may be deemed to have constructive notice. Unless the purchase money was paid to two legal owners (overreaching), the spouse’s interest is likely binding (as in Kingsnorth Finance v Tizard). If overreaching did occur, the spouse’s beneficial interest would attach to the purchase money, not the land.

Title to Registered Land

Registered land is administered by HM Land Registry and governed by the Land Registration Act 2002. Here, the register itself is definitive proof of legal title. The system divides each registered title into three key parts:

• Property Register – describes the extent of the land and details any rights, such as easements, which benefit the land.
• Proprietorship Register – shows the name(s) of the legal owner(s), together with their address and any restrictions (such as those imposed by a trust or a mortgagee).
• Charges Register – records legal mortgages (charges), leases, covenants, and other burdens on the land.

Key Term: registered title
Ownership of land or a right in land entered on the official electronic register maintained by HM Land Registry.

The register is effectively conclusive evidence of title; the purchase of land involves relying on HM Land Registry for assurance, rather than tracing ownership back through documents. Registration is now compulsory following most transfers of freehold or leasehold estates, on the grant of leases over seven years, on first legal mortgages, and on other prescribed events.

Key Term: charges register
The part of the official register which records mortgages, restrictive covenants, burdens, leases, and certain notices affecting the land.

Investigation and Deduction of Title in Registered Land

The seller’s solicitor must provide official copies (no more than six months old) of each part of the register, the filed plan, and copies of any relevant documents referred to in the register. These official copies are definitive, and all prior interests not registered at Land Registry or falling within overriding interests are excluded (subject to exceptions such as overriding interests).

Pre-contract searches and conveyancing protocol require careful examination of these entries for accuracy of ownership, identification of any discrepancies or restrictions, express burdens such as restrictive covenants or easements, and potential overriding interests.

Rights and burdens should be appropriately noted in the register. For example, rights benefiting the property are noted in the property register, whereas adverse burdens and incumbrances are generally entered in the charges register. Restrictions (such as to protect a trust of land) are included on the proprietorship register.

Key Term: restriction
An entry in the proprietorship register limiting the ability to deal with the property unless conditions specified in the restriction are satisfied. Frequently used to ensure compliance with overreaching on sale.

Overriding Interests

Key Term: overriding interest
Certain interests in land which, though not appearing on the register, bind a purchaser automatically—such as legal leases for seven years or less, legal easements in use, or interests of persons in actual occupation (see Sch 3 LRA 2002).

These are important exceptions to the principle that the register is complete: some rights will bind a buyer even if not registered, unless effective enquiry or inspection would have uncovered them.

Protection of Third-Party Rights: Notices and Restrictions

Key Term: notice (registered land)
An entry on the charges register protecting the priority of a right—such as a restrictive covenant, equitable lease, estate contract, or equitable mortgage—against subsequent disposition for value.

Most equitable interests (other than beneficial interests under trusts) must be protected by a notice. If a right capable of protection by notice is not entered on the register, it will generally not bind a purchaser for value.

Key Term: actual occupation
Physical presence on land sufficient to demonstrate occupation, even if temporary absences occur (the threshold is fact-sensitive). Interests of persons in actual occupation may override the register’s entries.

• Equitable interests under trusts are protected by a restriction, ensuring that capital monies are paid to at least two trustees on a sale. If a purchaser ignores a restriction and pays only one trustee, an occupier’s beneficial interest in the land (if accompanied by actual occupation) may override even a registered title.

Key Term: Form A restriction
A common restriction stating that no disposition by a sole proprietor under which capital money arises is to be registered unless authorised by order of the court. This ensures compliance with the overreaching regime for trusts of land.

Worked Example 1.2

Gemma buys a registered house. The register does not mention anyone else’s rights. She discovers after completion that someone living in the house claims a share because they contributed to the mortgage. Will Gemma be bound?

Answer:
If the occupier had a beneficial interest and was in actual occupation at completion, and if the sale proceeds were not paid to two trustees (no overreaching), the interest may be an overriding interest under Schedule 3, LRA 2002, thus binding Gemma unless she made proper enquiries which the occupier failed to disclose, or if the occupation was not reasonably discoverable.

Classes of Title

The class of title awarded upon first registration depends on documentary evidence. The main classes are:

• Absolute title: best and most secure; only subject to entries on the register and overriding interests.
• Possessory title: granted where there is occupation without a completed chain of deeds or because the deeds are lost.
• Qualified title: title granted except in respect of certain defects.
• Good leasehold title: available where the landlord’s right to grant the lease cannot be proved.

Worked Example 1.3

Elliott seeks to register the freehold of ‘Amber House’ but cannot locate deeds for a ten-year period and has instead occupied the property for twelve years. What class of title is likely to be awarded?

Answer:
Without a complete documentary chain, Elliott is likely to receive possessory title only. This can be upgraded to absolute title after twelve years of undisputed possession or upon later production of the requisite deeds.

Protecting Third-Party Rights in Title to Land

The mechanisms of protection vary according to the nature of the land’s registration.

Unregistered Land

• Most legal rights bind everyone automatically. The key exception is a puisne (second or subsequent) mortgage not protected by deposit of deeds, which must be registered as a land charge (C(i)), or it will be void against a purchaser.
• Modern post-1925 equitable rights must be registered as land charges; otherwise, they are unenforceable against a buyer for value (even if the buyer has actual notice). The consequences of non-registration are draconian: purchasers take free of the right; the doctrine of notice does not apply.
• Pre-1926 equitable rights (rarely encountered) and trust interests are subject to the doctrine of notice: a bona fide purchaser for value without actual, constructive, or imputed notice takes free.

Key Term: puisne mortgage
A second or subsequent legal mortgage over unregistered land not protected by possession of deeds; must be registered as a land charge to bind future purchasers.

Key Term: class F land charge
A land charge used to protect home rights under the Family Law Act 1996; must be registered against the legal owner’s name to bind a buyer.

Practical points:

• Always ensure all required interests are fully revealed by searches and are correctly registered or overreached.
• Physical inspection remains important; undisclosed occupations, rights reserved in deeds, or use of land for long periods can give rise to binding rights.

Registered Land

• Legal charges (mortgages) and most legal rights are entered on the charges register. Legal leases for more than seven years must be registered separately.
• Equitable interests (not beneficial under a trust) must be protected by notice or restriction; otherwise, they generally do not bind a purchaser for value.
• Trusts of land should be protected by a restriction (commonly Form A).
• Beneficial interests under a trust may bind a purchaser as overriding interests if the beneficiary is in actual occupation and overreaching does not occur.

Key warning:
If an interest could and should have been protected by notice but was not, it will not bind a purchaser for value, except where saved by the overriding interests regime (e.g. actual occupation) or overreaching.

Key Term: estate contract
A contract to create or transfer a legal estate in land (e.g. an option to purchase). In unregistered land, must be protected as a Class C(iv) land charge; in registered land, by notice on the register.

Priority of Rights and the Impact of Registration

The rules of priority are fundamentally different between the two systems.

• In unregistered land, earlier legal rights bind all, and the timing of land charge registration relative to the completion of purchase determines enforceability for equitable rights.
• In registered land, section 29 of the LRA 2002 establishes that a registered disposition for value gives the purchaser priority over interests not noted as notices or restrictions (and not protected as overriding interests).

Worked Example 1.4

Sasha buys a freehold registered title. There is an unprotected restrictive covenant (not noted as a notice on the register), created post-2003 for the benefit of neighbouring land. After completion, the beneficiary of the covenant tries to enforce it. Is Sasha bound?

Answer:
Without registration of a notice on the charges register, the restrictive covenant (a minor interest) is not binding upon Sasha, unless it qualifies as an overriding interest (which restrictive covenants generally do not). Correct registration is essential for enforceability.

Defective Title, Missing Deeds, and First Registration Issues

In unregistered land, missing deeds, undefined boundaries, or ambiguous descriptions can cause delays, risks of defective title, or refusal of absolute title. Defensive steps include:

• requiring statutory declarations explaining gaps or establishing adverse possession
• arranging defective title indemnity insurance
• carefully disclosing (and contracting to accept) specific title defects

In registered land, issues may arise from errors on the register, or undisclosed overriding interests. The professional must identify and remedy discrepancies before exchange.

Lender requirements:
Lenders require that the borrower’s title is good and marketable—suitable for mortgage security.

• For registered land: official entries must be checked and current.
• For unregistered land: chain of title, absence of adverse entries, and conclusive searches are important.

Leasehold Titles: Assignment and Investigation

The principles above apply equally to leasehold interests. Particular considerations include:

• investigating both the leasehold and reversionary (freehold) title, especially for registered leases with ‘good leasehold’ title only
• ensuring the landlord’s title is deduced for leaseholds sought to be registered with absolute title
• for assignments, providing all documents evidencing title and raising appropriate pre-contract and pre-completion requisitions

Key Term: leasehold title
The holding of an estate in land for a specified term of years, expressly created by lease or by statute, which is capable of registration in its own right if over seven years in duration.

Protecting and Enforcing Third-Party Rights: Practical Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Legal and equitable title are distinct; legal title gives formal control over the land, while equitable title protects the beneficial interests.
• Title to unregistered land is evidenced by a chain of deeds going back at least fifteen years; any break or defect can jeopardise marketable title.
• In unregistered land, most legal rights bind all purchasers automatically, but certain legal interests (notably puisne mortgages) and all modern equitable interests must be registered as land charges; failure to do so renders them generally void against buyers for value.
• In registered land, the register provides conclusive evidence of title. Rights must be protected by registration (notices, restrictions) unless they fall within the defined categories of overriding interests; failure to protect by registration usually means the buyer takes free.
• Overreaching is an important mechanism protecting buyers against beneficial interests under a trust—provided purchase money is paid to at least two trustees, the beneficial (equitable) rights are converted into rights over the sale proceeds rather than binding the land.
• Trust interests and actual occupation are the principal forms of overriding interest in registered land; however, enquiries and searches must always be diligent to avoid being bound by undisclosed or inadequately protected rights.
• Assured and effective investigation and deduction of title (whether by official documents or epitome of deeds) are central to any conveyancing scenario, with requisitions used to resolve doubts ahead of exchange.
• Defects, discrepancies, or unregistered third-party rights can usually be managed or insured against, but must be identified and addressed early in the transaction.

Key Terms and Concepts

• legal estate
• legal ownership
• equitable interest
• equitable ownership
• root of title
• land charge
• doctrine of notice
• overreaching
• notice (registered land)
• restriction
• Form A restriction
• charges register
• registered title
• overriding interest
• actual occupation
• leasehold title
• puisne mortgage
• class F land charge
• estate contract
• epitome of title
• title deeds