The Land Registry was formed in 1862, but the registration of land and property was initially voluntary. The Land Registration Act 1925 introduced compulsory registration which was introduced gradually by area and at first only applied to the sale of land, the grant of a new lease of 21 years or more or the assignment on sale of a lease with at least 21 years left to run. Registration became compulsory nationwide for most land transactions in 1990. Despite this, approximately 10% of land in England and Wales remains unregistered.
What is unregistered land?
Land in England and Wales can be either registered, or unregistered. Where land is registered a record of the ownership of the land, as well as any rights, restrictions or charges against the land is held digitally by HM Land Registry. The records maintained by HM Land Registry can be relied on as the official record of the title to the property. Where land is unregistered, the details of the property ownership, rights and other interests in the land are held within title deeds which can consist of conveyances, mortgage deeds, and abstracts of title. These deeds must be investigated to establish evidence of ownership and good title to the property.
Why might land still be unregistered?
There are many reasons why land may still be unregistered. The most common are where a property has been owned by one person for a long period of time and there has been no trigger event to prompt first registration. This can happen with properties inherited from estates. It is also not unusual for rural or agricultural land to be unregistered. Being unregistered does not mean that land is not owned or that ownership cannot be proved.
What are the risks of buying and selling unregistered land?
When land is unregistered, there are risks present to both buyers and sellers. These risks however can be mitigated by instructing a solicitor with knowledge and experience of dealing with unregistered land. There is a risk of fraud due to the lack of a digital record which can also be increased if there are any missing or incomplete deeds. There may also be uncertainties in relation to the boundaries of the property or potential disputes over the ownership of the land or undisclosed rights or covenants tied to the land.
As a buyer it is important to instruct a solicitor who will be able to thoroughly investigate the title to the property to ensure that you are receiving a good legal title to the property.
As a seller, instructing a solicitor early can help to mitigate these risks and avoid unnecessary delays as they will be able to begin the process of preparing for registration before a buyer is found which in turn can prevent sales from falling through.
The conveyancing process
The first step in investigating the title to an unregistered property is to evidence a good root of title. A good root of title is a document such as a Conveyance which is over 15 years old and satisfies certain requirements. The chain of ownership is then deduced from that document to the present owner. Once this has been established a document called an Epitome of Title is produced and sent with the draft contract and any other necessary documents to the purchasers’ solicitor.
The conveyancing process then continues as it would with a registered property by the purchasers’ solicitor ordering searches and raising enquiries in relation to the property.
On completion of the sale, First Registration is triggered.
What is First Registration?
First Registration is the process where we apply to the Land Registry to register land for the very first time. To make our application we have to provide the Land Registry with evidence of ownership by sending the necessary title deeds, together with a plan showing the extent of the land being registered and where necessary, evidence of identity of the owners of the property and statutory declarations, especially where there are any doubts over the boundaries of the property or any rights the property may benefit from.
An application for First Registration can also be made voluntarily when there is no trigger event such as a sale. This may be considered before a purchaser is found for the property to avoid any delays during the transaction or even to futureproof the property and provide clarity, security and make easier future transactions. There is a reduced fee for a voluntary first registration.
The Land Registry does currently have quite a backlog of applications which can sometimes result in long delays in the application being dealt with. We can however request the application to be expedited should it cause a delay or hardship, for example if a sale is agreed.
Common issues and how they are resolved
There are of course issues that can occur when dealing with unregistered land. These can often be resolved with the expertise of a good solicitor.
For example, there may be lost or destroyed title deeds, so we are not able to evidence a good root of title. This can be resolved by reconstructing the title deeds using secondary documentary evidence such as statutory declarations/statements of truth, copy deeds, mortgage records, probate papers and documents such as council tax or utility bills to evidence the ownership and occupation of the property.
An application for adverse possession may be appropriate where someone has occupied and used an area of land as their own for a prescribed period, but there is no clear evidence of ownership. This may be dealt with by making an application to HM Land Registry supported by statutory declarations or statements of truth and other evidence showing the nature and length of the possession and use of the land.
How can Tees help?
Our residential property lawyers have the knowledge and expertise required to investigate the title to an unregistered property, prepare the necessary documentation to make the application to Land Registry for First Registration (whether compulsory or voluntary) and resolve any issues that may occur.
