Investigation of title (freehold & leasehold)

PP.01 — Investigation of Title (Freehold & Leasehold)

The task. Confirm the seller can transfer what's being sold, free of undisclosed defects, and report anything that affects value, use or enforceability to the buyer. Caveat emptor applies — the seller need not volunteer defects (subject to no misrepresentation), so the buyer's solicitor must investigate.

Registered title (the norm — LRA 2002)

• Investigate via official copies of the register (Property, Proprietorship, Charges registers) + title plan, ideally with an official copy of documents referred to.
• Official copies must be less than 6 months old (and pre-completion an OS1 priority search gives a 30-working-day priority period).
• Class of title: absolute (clean), qualified, possessory, good leasehold. Anything other than absolute is a query — consider defective title indemnity insurance.
• Check the Proprietorship register for restrictions (e.g. a Form A restriction = beneficial tenancy in common, so a second trustee must be appointed to overreach under LPA 1925 ss.2 & 27).

Unregistered title

• Prove a good root of title — a document at least 15 years old dealing with the whole legal/equitable interest, with no doubt as to identity (typically a conveyance/legal mortgage).
• Examine the epitome of title / chain of conveyances; check stamping and execution.
• Search the Land Charges Register (LCA 1972) against names of past estate owners (registration is name-based) — Class C(iv) estate contracts, Class D(ii) restrictive covenants, Class F (home rights).
• First dealing after registration triggers compulsory first registration.

Issues to raise (both)

• Easements (rights of way, drainage) and restrictive covenants — note breaches; consider restrictive covenant indemnity insurance (don't contact the beneficiary if insuring).
• Mortgages/charges — confirm redemption on completion (undertaking from seller's solicitor).
• Co-ownership — joint tenants (survivorship; one survivor can sell) vs tenants in common (overreach needed).

Leasehold extras

• Investigate freehold/superior title too. Check the lease: term, rent, service charge, repairing/alienation/user covenants, forfeiture.
• Ground rent escalation and building safety post Building Safety Act 2022 / Leasehold and Freehold Reform Act 2024 issues.
• Apportionments, consents to assign, deed of covenant, licence to assign.

Common traps

• Root must be 15 years (title) vs official copies 6 months old.
• Two trustees required to overreach — one isn't enough where a Form A restriction/tenancy in common exists.
• Land Charges searches are against names, not addresses; clear searches certificate is conclusive.
• Indemnity insurance is for risk transfer, not cure — never approach the covenantee before insuring.