Investigating title to a complicated property can feel like tackling a jigsaw, but one where you cannot even be sure that all the pieces are in the box. Having solved the puzzle once on acquisition, Bill Chandler considers possible explanations if some of the pieces appear to have gone missing on a subsequent disposal.
Some properties are easier to sell than others. A property which in real life is complex or extensive can often be relatively straightforward from a legal perspective. Dealing with a single Land Registry title is obviously the ideal scenario, but life is rarely that kind and lawyers frequently find themselves faced with all sorts of commercial conveyancing conundrums.
Mind the gap
Where a single property is comprised of several registered titles, the parties to the transaction will obviously need to understand how those titles fit together and identify any gaps. Since 2014, lawyers have had access to the Land Registry’s invaluable Mapsearch facility, which offers an immediate overview of the title situation.
However, Mapsearch has its limitations. While it is undoubtedly a wonderful tool, which enables solicitors to easily identify the registered titles within a property and to spot land that is not registered, it is only indicative and should not be taken as gospel. The extent of a title as indicated on Mapsearch does not necessarily reflect the precise extent of the title as shown on the official title plan, so the individual title plans will always need to be checked to confirm the position.
We recently encountered a situation where Mapsearch suggested an unregistered hole in the middle of a shopping centre, but further investigations revealed that the indicative extent of one particular title on Mapsearch did not reflect the full extent of the title. Mapsearch had not existed at the time of purchase, and so the problem had not manifested itself until the proposed sale. At our request, the Land Registry corrected the plotting on Mapsearch and the gap disappeared.
It is obviously of greater concern if the analysis of the individual title plans confirms the gap suggested by Mapsearch, but even then there may still be an answer. This occurred on the same transaction, until we realised that the Land Registry had replaced the title plan since our client’s acquisition to reflect an updated Ordnance Survey. A comparison of the current title plan against the title plan at the time of acquisition revealed that a small strip of land had been lost in translation when the new title plan was prepared. Again, it was possible to ask the Land Registry to correct the title plan and close the gap.
If there is no other explanation, the general boundaries rule may apply. Unless a specific procedure has been followed to create a ‘determined boundary’ (which is quite rare in practice), Land Registry title plans only show a ‘general boundary’, being a ‘reasonable interpretation’ of the extent of the land. In most cases that is perfectly sufficient, especially where the boundary is delineated by physical features present on the Ordnance Survey, but it may be another reason why a small gap appears to exist between registered titles. Examination of the pre-registration title deeds, if available, will hopefully resolve the ambiguity.
It is not just the physical extent of the property that can cause unnecessary and unwanted concern when the Land Registry title is checked against the position on the ground. For multi-let buildings such as shopping centres and office blocks, there may be dozens of occupational leases either registered with their own title or noted on the freehold title.
In an ideal world, the leases mentioned on the Land Registry titles should match the leases on the tenancy schedule provided by the landlord or the managing agents, but unfortunately this is not always the case. Frequently the freehold title refers to leases that have long since determined and it is necessary to clean up the title in readiness for a sale.
Expired leases of individual shops or offices are usually less of a problem. Even if not dealt with at the time of lease expiry, perhaps because lawyers were not involved at that point, they will usually be picked up on the next letting.
If it is not as simple as the lease having expired but not being removed from the title, the Land Registry will require evidence of how the lease ended and maybe a statutory declaration from someone with knowledge. This can be particularly problematic where the previous lease appears to still be running.
For example, landlords and managing agents sometimes decide to take a pragmatic view when a tenant fails or does a bunk, choosing to write it off to experience and seeking to relet the unit. However, the lease does not automatically end in those circumstances and the landlord will need to establish an act of surrender, forfeiture or disclaimer in order to prove to a new tenant, or a purchaser of the reversion, that the lease has indeed gone.
My favourite recent example concerns a long lease of a toilet block granted to a bus company in the mid-20th century, which the bus company used in connection with its neighbouring bus station. The toilet block (and the bus station itself) had been demolished decades ago, but the lease remained on the title and a face value the lease appeared to have many years left to run. There had been no formal surrender of the lease, so it was necessary to demonstrate a surrender by operation of law based upon the bus company handing back the block prior to its demolition.
Even if the extent of the property is correctly registered, problems can also arise where the property does not appear to directly abut the public highway. Buyers and their lawyers will be particularly concerned if this relates to a main access into the property.
But once again, all may not be as it seems, and access to historic highways information can prove crucial.
On one town centre transaction, there appeared to be several gaps between the registered title and the adopted highway, some of which were inevitably at particularly important locations. At first glance this appeared to be a major problem, but following investigation each discrepancy could be satisfactorily explained.
The entrance to the service yard was not included on the buyer’s highways search, but the old highways search in the deeds packet confirmed that the land was shown as highway at the time of purchase. This anomaly was queried with the local authority, who confirmed that the access was indeed adopted and a mistake had been made on the latest highways search.
Similarly, the buyer’s highway search suggested that a road leading to the main customer car park was not part of the public highway. In fact, the road had been dedicated many years before, but the local authority had not previously updated their highways records.
Elsewhere on the site, a public footpath that had dissected one of the registered titles at the time of purchase had subsequently been diverted by the local authority to serve a new footbridge, leaving a strip of land that was neither within the title nor highway. In this instance, the highway plan had been correctly updated and it was possible to incorporate the former highway within the registered title on the basis of the ad medium filum presumption.
While all the examples above are obviously site-specific, there are some common themes that we can learn from.
The first is that all is not always as it seems. Just because a Land Registry plan or a highways search suggests one thing, we should not always accept it unquestioningly as the truth. It is always worth investigating whether plans have changed when they should not have, or not changed when they should have. Sometimes there is no substitute for a bundle of original title deeds and old searches to resolve apparent issues.
Which leads on to the second lesson. With the Land Registry having dematerialised the land register in 2003 and a drive towards paperless offices, it is tempting to shred old files and documents on the basis that they are no longer needed once title is registered. However, original title documents and searches can be worth their weight in gold if problems arise.