Freehold real estate law and practice - Investigation of tit...

Learning Outcomes

This article outlines the investigation of title to freehold property in registered and unregistered land, including:

• Identifying and applying the correct procedures to confirm the seller’s ability to convey the whole legal estate
• Establishing a good root of title under s 44 Law of Property Act 1925 and proving an unbroken chain of title deeds
• Reviewing official copies (property, proprietorship, and charges registers) and filed plans for registered titles to test marketability
• Detecting and curing defects in historic deeds (execution formalities, sealing/witnessing, and historic stamping) and reconciling inconsistencies
• Distinguishing legal and equitable rights; determining which bind a purchaser; and recognising overriding interests and the scope of overreaching
• Protecting equitable interests by registration: Land Charges Act 1972 entries for unregistered land and notices/restrictions under the Land Registration Act 2002 for registered land
• Applying the doctrine of notice where appropriate and understanding when non‑registration renders interests void against a purchaser for value
• Advising on searches and priority: K15 name‑based Land Charges searches, OS1/OS2 priority searches, and management of the 30 working‑day window
• Planning pre‑contract checks, raising targeted enquiries, and drafting to specify incumbrances and pre‑empt requisitions on title

SQE2 Syllabus

For SQE2, you are required to understand freehold real estate law and practice with a focus on practical investigation of title. This article covers the following aspects of the syllabus:

• Conducting effective investigation of title for freehold property
• Assessing sufficiency of documentary title and identifying a good root
• Recognising and protecting legal and equitable third-party rights
• Applying the Land Charges system to unregistered land
• Enforcing and binding third-party interests, including the doctrine of notice and overreaching
• Deducing and investigating registered titles (official copies, title plan, and documents filed at HM Land Registry)
• Using pre-completion searches (OS1/OS2) and managing priority periods

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 minimum chain of documents must a seller provide to prove a good root of title to unregistered freehold land?
2. What is the effect of failing to register a C(iv) Land Charge in respect of an estate contract?
3. Name two types of third-party rights commonly encountered in title investigation and state whether they are legal or equitable.
4. In what circumstances does overreaching protect a purchaser of a freehold property from a beneficiary’s equitable interest?

Introduction

The investigation of title is a core step in freehold property transactions. It aims to confirm that the seller can convey the whole legal estate and that any adverse matters are revealed, properly managed, or eliminated before exchange. In practice, investigation spans two systems: the registered title system (Land Registration Act 2002) and the residual unregistered system (using paper title deeds and Land Charges registration). Knowing which system applies determines how ownership is proved, what searches are appropriate, and how third‑party rights are protected or defeated.

The seller’s solicitor should investigate and deduce title early, anticipating issues and specifying incumbrances in the draft contract to pre‑empt requisitions. The buyer’s solicitor then applies caveat emptor, inspecting documents and the property, raising searches and enquiries, and deciding whether the title is good and marketable so the buyer (and lender) will be adequately protected.

Title Deeds and the Good Root of Title

A fundamental element in title investigation for freehold property—especially for unregistered land—is production of the “root of title.”

Key Term: title deeds
The bundle of documents evidencing successive transfers and interests showing ownership of an unregistered property.

Key Term: good root of title
A conveyance or transfer deed at least 15 years old that clearly describes the property, deals with the whole legal and beneficial estate, and does not cast any doubt on title.

A seller must be able to demonstrate uninterrupted ownership by providing an unbroken chain of title deeds dating back at least 15 years. The root of title is usually a conveyance for valuable consideration; gifts or assents are generally weaker, as they lack prior investigation. The chain must show devolution from the root owner to the current seller, explaining any changes of name or status (e.g., deaths, grants of representation, marriage certificates).

Where the title should have been registered due to a trigger (e.g., transfer for value after 1 December 1990, grant of a lease over seven years, first legal mortgage on certain events), you should require the seller to procure first registration before proceeding, as failure to register can affect legal validity of the disposition and priority.

Worked Example 1.1

The owner produces only an assent dated six years ago, transferring the estate to her from a parent who had no earlier deeds. Is this sufficient as a root of title?

Answer:
No; an assent is not a strong root of title, and there is no documentary chain showing good title for at least 15 years. Further deeds will be required.

Document Examination and Pre-Contract Checks

When investigating title, review whether the root document deals with the entire property, is properly executed, contains a clear property description, and is free from restrictive wording or doubt. Confirm that later deeds maintain a clear chain to the current seller. Investigate any references to pre-root documents if they create ongoing rights (e.g., covenants, easements) and request copies where necessary.

Execution and stamping of older deeds can affect admissibility. Deeds executed before 31 July 1990 were generally required to be signed, sealed, and delivered; after that date, they must meet s 1 Law of Property (Miscellaneous Provisions) Act 1989 (signed, witnessed, and clear on its face that it is a deed). Historic “Stamp Duty” (on documents, not the current SDLT) must have been paid or the deed properly exempted at the time; otherwise, late stamping may be needed to avoid evidential issues.

Check for:

• Unbroken devolution of title from the root (with evidence of deaths, changes of name, grants of representation, or powers of attorney as needed)
• A consistent property description that tallies with plans
• Proper execution and (where relevant) appropriate stamping of pre‑2003 documents
• References to earlier covenants/easements requiring production
• Any incumbrances disclosed in deeds (e.g., restrictive covenants, rights of way, mortgages)
• Whether the title should have been registered and if a prior registrable disposition was missed, requiring remedial first registration

For registered titles, ownership is proved by official copies rather than paper deeds. The buyer’s solicitor should obtain and review them as part of investigation.

Key Term: official copies
Certified copies of the registers of title and filed plan issued by HM Land Registry, evidencing the current registered state of title.

Key Term: search from date
The date and time of issue of the official copies; used to set the baseline for pre‑completion priority searches (OS1/OS2).

Key Term: property register
Describes the estate and the land, by address and plan, and notes rights benefiting (and sometimes burdening) the land.

Key Term: proprietorship register
Shows the registered proprietor(s), class of title, price paid (for post‑2000 registrations), and any restrictions on dealings.

Key Term: class of title
Indicates the quality of title: absolute (best), possessory, qualified (defect specified), or good leasehold (leasehold only where landlord’s title not proved).

Key Term: restrictions
Entries preventing or regulating registration of dispositions (e.g., Form A restriction requires capital monies to be paid to two trustees).

Key Term: overriding interests
Certain unregistered interests that bind on registration or subsequent disposition (e.g., legal easements by prescription, persons in actual occupation, short legal leases).

Key Term: charges register
Records adverse matters affecting the land, such as mortgages, easements over the land, restrictive covenants, and agreed notices.

In registered land, always verify that the property description on the official copies matches the draft contract and title plan, and identify rights benefiting/burdening the land. Cross‑check any notices and restrictions, and assess the class of title (e.g., whether a possessory or qualified title warrants additional due diligence or indemnity insurance).

Worked Example 1.2

You inspect official copies for a freehold registered title. The proprietorship register shows “Title absolute” with a Form A restriction. The charges register contains a mortgage and a restrictive covenant to use the property as a single dwelling house. What actions should you take?

Answer:
Confirm the mortgage will be redeemed on completion and seek an undertaking for discharge. Treat the restrictive covenant as an incumbrance; ensure it is specified or incorporated by reference in the contract. The Form A restriction alerts the buyer to pay capital monies to at least two trustees (or a trust corporation) to overreach any beneficial interests.

Key Term: legal estate
An interest in land recognized by statute as capable of binding the world (including freehold, leasehold, certain easements, and mortgages).

Key Term: equitable interest
An interest in land enforceable in equity, such as a restrictive covenant or a beneficial interest under a trust.

Pre‑completion searches update the title position and secure priority for registration. An OS1 search (whole) or OS2 search (part) must be made within six months of the official copies’ search from date and as close to completion as possible; it confers a 30 working‑day priority period. The buyer’s application to register must be submitted before the priority expires, otherwise intervening dispositions might take priority.

Protection of Third-Party Rights

During title investigation, you must determine whether third‑party rights—both legal and equitable—will bind the buyer after completion.

• Legal rights generally “bind the world,” so a properly created legal easement or mortgage discovered in the title binds the purchaser, whether or not they have actual notice. A legal lease of seven years or less qualifies as an overriding interest on a registrable disposition; equal or fewer than seven years will bind even if not noted, provided formalities are complied with.
• Equitable rights need protection. In unregistered land, registrable equitable rights (e.g., estate contracts, restrictive covenants, equitable easements, puisne mortgages) are protected by entry on the Land Charges Register against the estate owner’s name. In registered land, most equitable interests are protected by agreed or unilateral notices (for burdens affecting the land) or by restrictions (for interests requiring compliance on disposition), and some are overriding if coupled with actual occupation.

Key Term: land charge
A registered equitable right affecting unregistered land; unless registered as required, it may not bind a purchaser.

Where a right is not registrable as a land charge (e.g., beneficial interests under a trust), binding depends on the doctrine of notice in unregistered land and on overreaching/actual occupation in registered land. Overreaching in either system removes certain equitable interests from the land and attaches them to the purchase monies if paid to at least two trustees or a trust corporation.

Key Term: doctrine of notice
A principle under which an equitable right binds a purchaser if the purchaser has actual, constructive, or imputed notice of the interest and is not a bona fide purchaser for value without notice.

Key Term: overreaching
The mechanism by which a purchaser paying the purchase price to two (or more) trustees can take land free of beneficial interests under a trust; those interests attach to the proceeds instead.

Key Term: bona fide purchaser for value without notice
Also known as "Equity’s Darling," a purchaser in good faith who pays value for a legal estate and is not aware (actually, constructively, or by imputation) of an earlier unregistered equitable interest.

Worked Example 1.3

A restrictive covenant (created in 1982) was not registered as a class D(ii) land charge. The buyer knew about it. Is the purchaser bound?

Answer:
No; failure to register the land charge means it is void against a purchaser for value, even if the purchaser had actual notice. Registration is decisive here.

Worked Example 1.4

Jack pays the purchase price for unregistered land held by two trustees, but the property is subject to an equitable interest under a trust benefitting a third party. Will Jack take free of the interest?

Answer:
Yes; payment to at least two trustees overreaches the equitable interest. The beneficiary’s interest attaches to the sale proceeds, so Jack takes free.

Worked Example 1.5

A puisne mortgage (second legal mortgage of unregistered land where the first lender holds the title deeds) was not registered as a Class C(i) land charge. The buyer pays full market value for the legal estate. Is the buyer bound?

Answer:
No; a puisne mortgage must be registered as a Class C(i) land charge to bind a purchaser of unregistered land. If unregistered, it is void against a purchaser for money or money’s worth of the legal estate.

Land Charges, Registration, and Binding Interests

For unregistered land, the effect of registration is critical. The Land Charges Register (administered by HM Land Registry, Plymouth) protects specified equitable rights and certain legal charges by name-based entries.

Land Charges System

Check the Land Charges Register for relevant entries against every estate owner's name (as shown in the deeds). A registered charge (e.g., a class C(iv) for an estate contract, D(ii) for a restrictive covenant, D(iii) for an equitable easement, F for home rights, C(i) for a puisne mortgage) constitutes actual notice to all and binds even if the buyer never searched the register.

Key Term: puisne mortgage
A second or subsequent legal mortgage of unregistered land where the first mortgagee retains title deeds; it must be protected as a Class C(i) land charge.

Searches are made using a K15 search for each estate owner’s full name (including variants) covering the period of their ownership. The search certificate confers a 15 working‑day priority period during which completion must occur to ensure protection from subsequent entries. It is good practice to search back to 1926 if in doubt about ownership dates and to search all relevant counties, including historic county names used in deeds.

In registered land, protection of equitable rights is via notices (on the charges register) and restrictions (on the proprietorship register). Some interests (e.g., persons in actual occupation, prescriptive legal easements) may override.

Doctrine of Notice and Constructive Inspection

If a right is not registrable, binding depends on the doctrine of notice (for unregistered land). Advise clients to inspect the property and the deeds and inquire of occupiers to avoid constructive notice. Agents’ knowledge (e.g., the buyer’s solicitor or surveyor) can be imputed to the buyer.

In registered land, beneficial interests under a trust are dealt with by overreaching provided capital monies are paid to two trustees or a trust corporation. If overreaching fails and the beneficiary is in actual occupation, their interest may override the disposition (subject to the exceptions where occupation is not obvious on inspection and the buyer has no actual knowledge, or where the beneficiary fails to disclose the interest on reasonable enquiry).

Worked Example 1.6

A buyer inspects registered freehold property occupied by the seller and an adult child who contributed to the purchase price but is not on the register. The proprietorship register contains a Form A restriction. The buyer pays capital monies to a single trustee (the seller). After completion, the child claims an interest. Will the buyer be bound?

Answer:
The buyer risks being bound. The Form A restriction signals the need to pay capital monies to two trustees. Without overreaching, if the child has a beneficial interest and was in actual occupation that was obvious on inspection, their interest may override and bind the buyer.

Exam Warning

If a buyer fails to pay the price to two trustees where there is a trust, beneficial interests may still bind unless overreached. Always advise appointment of a second trustee.

Key Point Checklist

This article has covered the following key knowledge points:

• The investigation of title for freehold property involves producing an unbroken chain of title deeds with a good root at least 15 years old; titles that should have been registered due to a triggering event must be regularised.
• In registered land, ownership is proved by official copies and the filed plan; check the property, proprietorship, and charges registers, class of title, and any restrictions.
• Legal rights normally bind the world, but rare exceptions (e.g., puisne mortgages) require registration in unregistered land.
• Equitable rights must be properly protected—via Land Charges registration (unregistered land) or notices/restrictions (registered land)—to bind purchasers for value.
• Failure to register a registrable charge generally renders the interest void against a buyer for value, even with actual notice.
• The doctrine of notice protects beneficiaries under trusts and some older interests in unregistered land; actual, constructive, or imputed notice can be relevant.
• Overreaching can protect buyers from certain equitable interests if the price is paid to at least two trustees (or a trust corporation), with the beneficial interest attaching to sale proceeds.
• Pre‑completion OS1/OS2 searches secure a 30 working‑day priority period; applications to register must be submitted before expiry.
• Always align contract drafting with deduced title—specify incumbrances, annex plans, and identify steps to remedy defects discovered during investigation.

Key Terms and Concepts

• title deeds
• good root of title
• legal estate
• equitable interest
• land charge
• doctrine of notice
• overreaching
• bona fide purchaser for value without notice
• official copies
• search from date
• property register
• proprietorship register
• class of title
• restrictions
• overriding interests
• charges register
• puisne mortgage