Most properties are registered at HM Land Registry with a unique title number, register and title plan. The evidence of title for an unregistered property can be found in the title deeds and documents. Sometimes, there are problems with a property’s title that need to be addressed before you try to sell.
What is the Property Title?
A “title” is the legal right to use and modify a property as you choose, or to transfer interest or a share in the property to others via a “title deed”. The title of a property can be owned by one or more people — you and your partner may share the title, for example.
The “title deed” is a legal document that transfers the title (ownership) from one person to another. So whereas the title refers to a person’s right over a property, the deeds are physical documents.
Other terms commonly used when discussing the title of a property include the “title number”, the “title plan” and the “title register”. When a property is registered with the Land Registry it is assigned a unique title number to distinguish it from other properties. The title number can be used to obtain copies of the title register and any other registered documents. The title register is the same as the title deeds. The title plan is a map produced by HM Land Registry to show the property boundaries.
What Are the Most Common Title Problems?
You may discover problems with the title of your property when you decide to sell. Potential title problems include:
- The need for a class of title to be upgraded. There are seven possible classifications of title that may be granted when a legal estate is registered with HM Land Registry. Freeholds and leaseholds may be registered as either an absolute title, a possessory title or a qualified title. An absolute title is the best class of title and is granted in the majority of cases. Sometimes this is not possible, for example, if there is a defect in the title.
Possessory titles are rare but may be granted if the owner claims to have acquired the land by adverse possession or where they cannot produce documentary evidence of title. Qualified titles are granted if a specific defect has been stated in the register — these are exceptionally rare.
The Land Registration Act 2002 permits certain people to upgrade from an inferior class of title to a better one. Government guidelines list those who are entitled to apply. However, it’s probably easier to let your solicitor or conveyancer wade through the legal jargon and explore what options are available to you.
- Title deeds that have been lost or destroyed. Before selling your home you need to prove that you legally own the property and have the right to sell it. If the title deeds for a registered property have been lost or destroyed, you will need to carry out a search at the Land Registry to locate your property and title number. For a small fee, you will then be able to obtain a copy of the title register — the deeds — and any documents referred to in the deeds. This generally applies to both freehold and leasehold properties. The deeds aren’t needed to prove ownership as the Land Registry keeps the definitive record of ownership for land and property in England and Wales.
If your property is unregistered, missing title deeds can be more of a problem because the Land Registry has no records to help you prove ownership. Without proof of ownership, you cannot demonstrate that you have a right to sell your home. Approximately 14 per cent of all freehold properties in England and Wales are unregistered. If you have lost the deeds, you’ll need to try to find them. The solicitor or conveyancer you used to buy your property may have kept copies of your deeds. You can also ask your mortgage lender if they have copies. If you cannot find the original deeds, your solicitor or conveyancer can apply to the Land Registry for first registration of the property. This can be a lengthy and expensive process requiring a legal professional who has expertise in this area of the law.
- An error or defect on the legal title or boundary plan. Generally, the register is conclusive about ownership rights, but a property owner can apply to amend or rectify the register if they meet strict criteria. Alteration is permitted to correct a mistake, bring the register up to date, remove a superfluous entry or to give effect to an estate, interest or legal right that is not affected by registration. Alterations can be ordered by the court or the registrar. An alteration that corrects a mistake “that prejudicially affects the title of a registered proprietor” is known as a “rectification”. If an application for alteration is successful, the registrar must rectify the register unless there are exceptional circumstances to justify not doing so.
If something is missing from the legal title of a property, or conversely, if there is something included in the title that should not be, it may be considered “defective”. For example, a right of way across the land is missing — known as a “Lack of Easement” or “Absence of Easement” — or a piece of land that does not form part of the property is included in the title. Issues may also arise if there is a missing covenant for the maintenance and repair of a road or sewer that is private — the covenant is necessary to ensure that each property affected is required to pay a fair share of the bill.
Every property in England and Wales that is registered with the Land Registry will have a legal title and an attached plan — the “filed plan” — which is an OS map that gives an outline of the property’s boundaries. The filed plan is drawn when the property is first registered based on a plan taken from the title deed. The plan is only updated when a boundary is repositioned or the size of the property changes significantly, for example, when a piece of land is sold. Under the Land Registration Act 2002, the “general boundaries rule” applies — the filed plan gives a “general boundary” for the purposes of the register; it does not provide an exact line of the boundary.
If a property owner wishes to establish an exact boundary — for example, if there is an ongoing boundary dispute with a neighbour — they can apply to the Land Registry to determine the exact boundary, although this is rare.
- Restrictions, notices or charges secured against the property. The Land Registration Act 2002 permits two types of protection of third-party interests affecting registered estates and charges — notices and restrictions. These are typically complex matters best dealt with by a solicitor or conveyancer. The government guidance is littered with legal terms and is likely to be challenging for a layperson to navigate.
In brief, a notice is “an entry made in the register in respect of the burden of an interest affecting a registered estate or charge”. If more than one party has an interest in a property, the general rule is that each interest ranks in order of the date it was created — a new disposition will not affect someone with an existing interest. However, there is one exception to this rule — when someone requires a “registrable disposition for value” (a purchase, a charge or the grant of a new lease) — and a notice entered in the register of a third-party interest will protect its priority if this were to happen. Any third-party interest that is not protected by being noted on the register is lost when the property is sold (except for certain overriding interests) — buyers expect to purchase a property that is free of other interests. However, the effect of a notice is limited — it does not guarantee the validity or protection of an interest, just “notes” that a claim has been made.
A restriction prevents the registration of a subsequent registrable disposition for value and therefore prevents postponement of a third-party interest.
If a homeowner is taken to court for a debt, their creditor can apply for a “charging order” that secures the debt against the debtor’s home. If the debt is not repaid in full within a satisfactory time frame, the debtor could lose their home.
- The owner named on the deeds has died. When a homeowner dies anyone wishing to sell the property will first need to prove that they are entitled to do so. If the deceased left a will stating who the property should be transferred to, the named person will obtain probate. Probate enables this person to transfer or sell the property.
If the owner died without a will they have died “intestate” and the beneficiary of the property must be established via the rules of intestacy. Instead of a named person obtaining probate, the next of kin will receive “letters of administration”. It can take several months to establish the new owner and their right to sell the property.
Selling a House with Title Problems
If you are facing any of the issues outlined above, speak to a solicitor or conveyancer about your options. Alternatively, for a fast, hassle-free sale, get in touch with House Buyer Bureau. We have the funds to buy any type of property in any condition in England and Wales (and some parts of Scotland).