Epitome of Title: Deducing Title to Unregistered Land

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05/06/2018

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Epitome of title consists of a schedule of all the documents of title along with photocopies of the documents themselves assembled for deducing the title to unregistered land to prove your ownership. It's needed for proving you have the right to sell the property and the existence of things like easements or other rights.

The need to assemble an epitome of title is becoming rarer because of the requirement, since the advent of the requirement to register titles with the Land Registry every time a property is sold.

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How do you go about registration with the Land Registry? If you feel that you have a rightful claim to ownership of unregistered land, you have to take particular steps to prove it, the most critical one being to have title deeds.

Since the Land Registration Act 2002, all land has had to be registered with the Land Registry. But because of the uneven way in which this law has been rolled out, there is still plenty of unregistered land left.

Always title keep deeds in a safe place, preferably with a bank or firm of solicitors or, even better, the land should be registered with the Land Registry. This can be done voluntarily even where no transaction takes place. Click if you have no title deeds

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This article examines the process of deducing title to unregistered land:

1

Establishing the root of title

2

Showing an unbroken chain of ownership

3

Checking associated mortgages (if any)

4

Checking documents are signed, stamped and original

5

Assembling pre-root documents

6

Producing a plan for registration

7

Searching the Land Charges Register

8

Carrying out an Index Map Search

9

Preparing the Epitome

10

Transfers of Part (if applicable)

Unregistered Land with No Title Deeds?

Deducing title to unregistered land is much more difficult if you do not have title deeds. Title deeds are an owner's only proof of ownership and without them you won't be able to sell or otherwise deal with the property in question. You can reconstitute the title following the loss of deeds but this is expensive, difficult and without any guarantee of success.

Additionally, you'll acquire possessory title only, which is subject to challenge. The benefit of rights which are crucial to the enjoyment of the property may be lost.

1

Establishing the root of title

Once your solicitor has the title deeds, they check the title and start the epitome of title process by establishing the root of title.

They identify a deed, such as a mortgage, transfer or conveyance, used to start the chain of ownership ending with the current owner. A 'good root' must be at least 15 years old.

What is Root of Title?

Root of Title unregistered land is the deed to which title to a property is ultimately traced to prove that the owner has good title and applies only in relation to unregistered land.

Under the open contract rules, which govern the deduction of title in the Law of Property Act 1925 (LPA 1925), the seller is required to give evidence of title starting with a "good root of title" at least 15 years old (section 44, LPA 1925). If the land is to be registered at the Land Registry with title absolute, a good root of title and an unbroken chain of ownership is required.

To be a good root of title, a document must satisfy each of the following requirements:

It must deal with or show the ownership of the whole legal and equitable interest in the land in question.
It must contain a recognisable description of the property.
It must not contain anything that casts any doubt on the title.

2

Showing an unbroken chain of ownership

After establishing the root your solicitor then has to demonstrate an unbroken chain of ownership from the root to yourself as seller. They look at who the transferee in the root conveyance was and if this wasn't you, they find the deed by which the transferee parted with possession: this might be another conveyance or a deed of gift or assent. They repeat this process until the deed under which you acquired the property is reached.

Deceased Proprietors and Former Proprietors

One or more of the previous owners may have died while owning the property and a subsequent sale conducted by their personal representatives or a survivor of joint owners. In these scenarios your solicitor has to show how the deceased's legal interest in the title was dealt with.

Three possibilities can arise from this:

1 One person only acquired the property and they died
When this happens the legal title passes to the deceased's personal representatives (i.e. their executors if they left a will or their administrators if they did not).

These in turn would have either sold the property or assented it to a beneficiary/ies which would involve a conveyance or assent which would illustrate the changing ownership.

For this, your solicitor has to locate a grant of probate or grant of letters of administration - this removes any need to see the will or death certificate. If the most recent owner has died and their personal representatives are selling the property then the chain of ownership ends with the grant of representation.

2 Joint owners hold the property as tenants in common and one dies
Tenants in common hold the beneficial interest in the property (effectively the net value after payment of secured debts and the right to occupy it and receive any rents and profits) in defined shares, which may or may not be equal, but the legal title still has to be held as joint tenants under s1(6) Law of Property Act 1925.

So the legal title passes to the survivor (even though the beneficial interest passes to the deceased's personal representatives), who holds the property on trust for him/her self and the deceased's estate.

To get around the problem of the deceased's personal representatives' beneficial interest, the survivor, when selling the property, appoints another trustee to receive the sale proceeds. That trustee signs the conveyance to a buyer and becomes liable, with the survivor, for ensuring the appropriate share of the proceeds is paid to the deceased's estate - this is why often the personal representatives are appointed as trustee/s.

If the surviving tenant in common dies before a sale, then their personal representatives would have to conduct the sale, appointing another trustee regarding the interests of the estate of the deceased first proprietor.

Whenever tenants in common die other than the last surviving tenant in common, the deceased's death certificate has to be produced to establish the chain of ownership and regarding the last tenant in common's death, the grant of representation will need to be produced as evidence of the right of the personal representatives to sell.

3 Joint Tenants
Joint tenants own the whole of the legal and beneficial estates on trust for each other equally in undivided shares so when one dies, both the legal and beneficial title passes to the survivor/s. When only one remains he/she is solely entitled to the legal and beneficial estates as though he/she bought the property originally in his sole name.

The solicitor needs to obtain the death certificates of all but the last joint tenant to die and the grant of representation for the last joint tenant in order to show the chain of ownership.

3

Checking associated mortgages (if any)

Your solicitor has to check the deeds for any mortgages you or former owners have taken out as far back as the buyers of the root conveyance: a buyer needs to see these.

Your solicitor checks if these are properly 'vacated'. When a mortgage of unregistered land is paid off the lender should add a note to the mortgage deed itself to confirm that the debt has been repaid and it should be signed and/or sealed by the lender. This is known as a "vacating receipt".

You should hope that all but your current mortgage is vacated because outstanding mortgages may still be binding on the land. If there is any doubt about this, your solicitor has to make enquiries of the lender/s involved and, if no debt is outstanding, the lender must confirm this on the deed (known as 'sealing the deed') and return it. Your solicitor has to do this before exchange of contracts.

If there is a debt outstanding, your solicitor has to obtain a redemption statement and ensure that the debt is paid from sale proceeds on completion at which point the deed is sent to the lender to be sealed.

4

Checking documents are signed, stamped and original

Your solicitor has to check that all documents forming the ownership chain are originals or examined abstracts as a minimum. Examined abstracts are copies prepared by a solicitor based on the original deed such that all the relevant information is included in a shorter document. Any examined abstract must itself be an original.

Each document must be properly executed (signed by parties and witnessed) (the only exceptions are death certificates and grants of representation) and stamped by the Inland Revenue (which was the forerunner of HMRC) to acknowledge that the appropriate duty was paid (deeds of gift are exempted).

The Land Registry may reject any non-original document or documents which are not properly executed or stamped.

5

Assembling pre-root documents what-is-an-epitome-of-title

The documents gathered may reference earlier deeds which refer to rights, covenants and other obligations. Your solicitor needs to gather and assemble these right back to each original deed in question.

If any pre-root documents are missing, you can still be registered as the owner (and any future buyer in turn) but the Land Registry has to enter a protective entry in the Charges Register giving notice that the title is subject to any rights or covenants contained in the missing document.

In theory, this leaves open the chance that a missing pre-root document might be found and its obligations become enforceable but your solicitor can organise an indemnity insurance policy protecting you against this happening, which can be passed on to any subsequent buyer.

6

Producing a plan for registration

Any buyer will normally request a plan, particularly if the land portion is not clearly identifiable (for example a terraced house in a row of terraces).

To satisfy the Land Registry, the plan needs to be on a reasonable scale (normally between 1:2500 and 1:5000) and contain a north point, making it identifiable on an Ordnance Survey map. Your solicitor can normally find such a plan in a previous conveyance.

If one isn't available, you can get a draughtsman to draw one up professionally or you can find a nearby property which is registered, get a copy of its title plan and draw yours accordingly.

Any plan has to be accurate and the Land Registry can choose to inspect the land to check this.

7

Searching the Land Charges Register

Your solicitor conducts a land charges search to corroborate the information they've assembled regarding the chain of ownership of the property and matters such as any outstanding charges or covenants.

This search only ever comes into play with unregistered land and reflects the fact that with unregistered land, you register land charges against the person, not the land. If a land charge is registered then a purchaser is bound by it whether or not a search is actually carried out.

Click to Search the Land Charges Register to find out if a person has any land charges (unregistered land) registered against them (cost is £2 per name).

Click to view a Sample K15 Application Form for Searching the Land Charges Register

8

Carrying out an Index Map Search

Your solicitor carries out this search to check that no part of your land has already been registered with the Land Registry. It also reveals any cautions against first registration, which are lodged by someone who believes they have an interest in the land in order that they are informed by Land Registry when an attempt is made to register it.

9

Preparing the Epitome

Your solicitor prepares a list of all the relevant documents discussed above, starting with the root document, and arranges them in date order up to and including the most recent document. They use the following format:

Date of document Type Parties Original to be handed over on completion?

They fill out the list according to the parameters discussed previously.

You can download a sample template Epitome of Title - see the top part of this article.

10

Transfers of Part (if applicable)

If you're selling to a buyer and looking to keep a portion of the land in the title (e.g. you just want to sell off a part that has an additional house built on it) you'll need to retain the deeds to the remaining portion.

Your solicitor will probably advise you to register the whole of the land voluntarily, then do the transfer. This simplifies matters and will make your buyer much more likely to accept your title.

If you choose not to register the land in advance you'll need to supply certified copies or examined abstracts on completion and on the original deed out of which the title is granted to the buyer and attach a memorandum of sale off. This is a note to say the part of the land in the title has been sold off and is no longer included in your overall title.

This note should adequately describe the extent of the land sold and should make reference to a plan, or to the transfer to your buyer of the sold land.