Proving Title

Duty to Deduce Title

It is the duty of the seller of the property to prove that there is a good title to the property. This duty is regulated by the terms of the sale contract. Generally, however, a seller may not simply enforce an illusory, non-existing title on a buyer, by so providing by contract.

In the current sense, the title means ownership or rather ownership rights in the property. As set out in other sections title and the rights attaching to it may vary considerably. Generally, a fee-simple or freehold interest in land is the most extensive interest in the property. If such an interest is held in possession,  the holder effectively has all the benefits of unrestricted ownership.

Multiple persons may have an interest in the same land. In this case what may be sold is the seller’s particular title to that interest. Interests may vary from being almost equivalent to a freehold (e.g. a long lease at a low rent) to a relatively short lease at a market rent which is of comparatively little value or may have a negative value.

Traditionally, in the era before photocopying the proof of title took place after a contract to assign. However, the modern practice is that the title documents are furnished in full with the contract and the contract conditions. Therefore the buyer may be on notice of certain issues and defects in title prior to the contract. This reduces the traditional obligation of the sellers to restrict or disclose latent defects where they are patent from the documents which have been sold.

The process of proof of title is greatly simplified in the case of registered land. Registered land is becoming predominant since the designation of the entire country as subject to compulsory registration in a series of designations, particularly running from 2006 to 2011. Registered title gives a state guaranteed title so that what has to be investigated is greatly reduced. See below in relation to the investigation of registered title land.

In the case of unregistered title, proof of ownership depends on the production of a chain of deeds from a deed of sale of at least 15 years’ vintage. In almost all cases, the standard law society contract or its equivalent will specify the terms on which the seller is to prove or deduce title.

If for some reason there is a binding contract without any mention of title, the default obligation to prove and deduce title applies. The period of titles must be shown where no provision is made in the contract has been reduced by the 2009 Act from at least 40 years to at least 15 years.

It is a criminal offence for a seller or seller-solicitor to conceal or falsify documents relating to title. Buyers or any subsequent owners may claim damages for loss sustained as a result.

Quality of Title

With an unregistered title, there is much greater scope for an opinion as to what constitutes good and acceptable title. In the broader sense, good title means the ability to resist third-party challenges to the substantial benefits of ownership.

This standard is not necessarily that of a perfect title. It must, however, be sufficient to enable it to be sold. This is referred to as marketable title.

It is often said that the quality of the title is tested by reference to a hypothetical application for specific performance. If the title or rights of ownership are sufficiently good to force them on a willing buyer in specific performance, there will generally be the minimum necessary threshold to constitute good title. Where a seller’s title is sufficiently defective, it may be deemed a bad title. Where another party has the right to undermine the title or terminate it, the title will generally be bad and unsaleable.

In some cases, the title will exist by long ownership without a document. See the separate section on squatter’s rights or so-called adverse possession. In this case, a good holding title by sufficient or disturbed possession may be a sufficient possessory title.

A possessory title is subject to certain weaknesses. It may be possible to obtain title insurance against the risk that a third party may be able to assert rights to ownership and possession by reason of some more unusual exceptions to possessory title principles.

Titles may have defects which are capable of being corrected. Where for example some third party’s consent is required, the procurement of that consent will rectify what would otherwise be a defect.

Where the seller cannot show good title, the buyer may choose not to rescind the contract and give the seller the opportunity to rectify the position. The seller may be given a reasonable opportunity to rectify. If it is minor, the buyer may waive the defect and take such title as is held.

Registered Title

In the case of registered title, ownership is generally proved by the production of a certified copy of the register, proving that it conforms with the property in sale. Once the title is registered,  title deeds and no longer operative the basis of ownership. A state guarantee of the title is given. See the section on registered land.

Notwithstanding the strengths of registered title there exist a number of limitations to it. Registration applies to the particular title in land and not necessarily the entire interest. It is possible to have a registered leasehold title which is only as good as the quality of the lessee’s rights under the lease itself.

The land registry provides for different classes of title. Generally, a buyer will wish to see an absolute title. This is the greatest form of ownership available.A qualified title is subject to certain third-party rights which may exist. A qualified title is sometimes given by the Land Registry as a pragmatic matter where it cannot investigate certain classes of third-party rights.

The nature of the qualification will depend on the underlying unregistered rights which are effectively excepted from the qualification. Most qualifications found in practice are relatively old and may have ceased to be relevant if they ever existed.

A possessory title is a title based on possession alone. For reasons mentioned in the chapter on adverse possession, there exist possibilities that long possession may not be enough to create an absolute title. In this case, the possessory title reflects the fact that third parties may be in a position to assert a right to the contrary.

Generally, a possessory title is not satisfactory unless it relates to a marginal or subsidiary part of the property in sale, perhaps additional land at the boundary. It may be possible to obtain title insurance against the risk of the third party successfully asserting a right.

There is a range of rights which affect registered land without registration. This reflects pragmatic consideration. See the sections on registered title. Unlike other burdens or rights, these need not be registered in order to validly affecting the property concerned. The so-called Section 72 burdens affect registered title without being registered.

Burdens affecting without Registration

The principal S.72  rights are

• an equitable interest of persons in possession
• leases for a term less than 21 years where the lessee is in occupation
• the rights of persons acquiring rights under the statute of limitations i.e. squatter
•  easement and other rights being obtained by long use.
• In practice, the buyer must physically examine the land to vouch for the status of persons in occupation possession and satisfy himself that none such have rights.

There are e more obscure rights which affect registered land that affects land without registration. They have been extended by statute from time to time. The general practice is that the buyer requires the seller to give a so-called Section 72 declaration in relation to the nonexistence of such rights and interests.

Former Certificates

Formerly, Land Certificates were issued by the Land Registry upon request. They acted as the equivalent of deeds in unregistered title cases. They were required to be produced on major transactions such as a land sale and mortgage. It was formerly possible to grant an equitable charge by deposit of the Land Certificate.

There also existed certificates of charge which were the equivalent of Land Certificates in relation to charges. Dealing with mortgage including the release of the mortgage required, production of the original certificate of charge.

The 2006 Land Registration legislation seeks to facilitate dematerialisation of conveyancing and made Land Certificates and Certificates of Charge wholly redundant. They are no longer required. This does facilitate e-conveyancing in the long term but increases the risk of fraud.

Folios

The certified copy folio refers to a Land Registry map. This identifies the land on an official Land Registry maps. The certified copy folio will have an associated file plan which is the official copy of the land registry map. This will delineate the property.

Originally most of the country was mapped on a 1:2500 scale. In urban areas, the scale has been upgraded to 1:1000 within the last 30 to 40 years. The former paper maps are now digitised

Where Land Registry title is qualified or possessory, the standard contract provides that the seller must produce sufficient evidence to have any qualifications or possessory title upgraded. It need not actually procure the registration of the cancellation.

The conditions provide that a declaration as to Section 72 burdens should be produced. Therefore if any such burdens exist it should be disclosed.

The Registration of Title Act (Section 115) provides that any provision in a contract for the sale or mortgage of registered title which purports to preclude requisitions in relation to burdens whether affecting land with or without registration is void.

Registration of TItle

Unregistered title is likely to be phased out over a long period of time. Where existing unregistered title is sold it is mandatory to register the title in the Land Registry.

Registration may take place through proof of title to the Land Registry. In this case, the Land Registry investigates the unregistered title in much the same way as a buyer’s solicitor. A purchaser of unregistered title must, therefore, obtain sufficient proof of title to procure the first registration of the Land Registry.

An alternative to formally proving title to the Land Registry is a solicitor’s certificate of title. On the basis of a solicitor certificate, the respect a property up to €1 million in value, the Land Registry may simply, may register title without any further evidence of the title.

Proving Unregstered Title

Unregistered title is usually proved by the production of a chain of deeds back to a so-called root of title. When a contract for the sale of unregistered title land is issued the seller’s solicitor usually furnishes copies and promises to produce the originals or certified copies as appropriate on completion. The advent of photocopy technology has greatly facilitated the process of sale of unregistered titles. Prior to photocopies being available, it was necessary for the seller’s solicitor to produce an abstract of title. This was extremely time-consuming and arduous.

The standard conditions require title documents to be furnished within a short time of the contract being signed. In practice, they are usually furnished in advance.

Where the original title deeds are lost the seller can produce secondary evidence and proof that they have been lost and nor than lodged/ pledged by way of security. In such cases, title insurance may also be required against the risk of third parties asserting rights by the production of the deed.

Root of Title

The root of title must be at least 15 years old. In many cases, it will be a great deal older.

At common law, a root of title at least sixty years old was required. This was reduced to 40 years by statute and by later conveyance practice, it was reduced to 20 years. It has now been reduced to 15 years by the Conveyancing and Land Law Reform Act 2009.

In theory, the root of title is a point of origin in the time of sufficient vintage to act as a sufficient starting point or anchor of  title. It must be a document dealing with the entire interest being sold. It must be a sale for value. A key characteristic of a root of title is that title is assumed to have been investigated by a buyer’s solicitor at this earlier date.

It must deal with the entire legal and equitable estate in the land. It must not cast doubt on its own validity. It must not rely on other documents.

By the terms of the contract, the buyer is precluded from investigating matters predating the root of the title.

Where there are key documents such as a lease, this must always be shown and proved. In this case, the title commences with the lease, passes to a root of title more than 15years ago and is traced or proved from that latter point forward.

Where are easements and rights at some point prior to the root of title they should be disclosed unless they have been supervened and are redundant.

Chain of TItle

The seller must prove a chain of ownership passing from the person who acquired the title under the root down to the current seller. This may be done by successive purchase deeds or by grants of probate and assents or in more usual circumstances, by other means.

Where there are any adverse “acts” such as inconsistent deeds, mortgages or leases which no longer effect, they must be proved to be discharged. All rights which become apparent on the chain of title which is adverse should be proved to be inapplicable or discharged.

Searches must be made in respect of each owner in the chain of unregistered title. Searches must be made against the name of each owner from the date of acquisition of the property to the date of registration of the deed by which they transferred it to their successor.

Leasehold TItle

An intended lessee or buyer of an existing lease may not call for the landlord’s title and other superior titles. A buyer who is not affected by notice of the above matters in his title from which he is precluded from investigating.

If the lease is for more than five years, he may call for

• in the case of a tenancy to be derived immediately out of the fee simple, a copy of the conveyance of that estate to the grantor, or
• in the case of a subtenancy, a copy of the superior lease out of which it is to be immediately derived and, if any, of the immediate assignment of the superior lease to the grantor,and,
• where the tenancy or subtenancy is granted for the full market rent, taking into account any premium also paid by, but disregarding any concessions or inducements made to, the intended grantee, that grantee may also call for 15 years’ title as a purchaser

This may be varied by the contract.

Recitals

Recitals, statements and descriptions of facts, matters, and parties contained in instruments, statutory provisions or statutory declarations 15 years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, sufficient evidence of the truth of such facts, matters and parties.

A purchaser of land is not entitled to require—

• the production of an instrument dated or made before the period referred to in section 56, or stipulated in the contract for sale, for the commencement of the title, even though the instrument creates a power subsequently exercised by an instrument produced to the purchaser, or
• any information, or make any requisition, objection or inquiry with respect to any instrument referred to in paragraph (a) or the title prior to that period, notwithstanding that any instrument, or that prior title, is recited, agreed to be produced or noticed

The purchaser shall assume unless the contrary appears, that—

the recitals contained in the instruments produced, relating to any instrument forming part of that prior title are correct, and give all the material contents of the instrument so recited, and

every instrument so recited was duly executed by all necessary parties, and perfected, if and as required, by any act required or permitted by law.

The Land and Conveyancing Law Reform Act provides that a buyer is not to be affected by matters in relation to which he is debarred by law from calling, from investigating.

The buyer may assume that recitals in the root of title are correct. Generally, a recital in a deed more than 15 years is presumed to be correct. This does not deprive a purchaser of the right to require the production of any—

• power of attorney under which any instrument which is produced is executed, or
• the instrument creating or disposing of interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the land is disposed of by an instrument which is produced, or a copy of which is produced, or
• the instrument creating any limitation or trust by reference to which any part of the land is disposed of by an instrument which is produced.

Presumption Re Expenses

On a sale of land, the purchaser, where the purchaser requires the vendor to carry out such matters, shall bear the expenses (except where such expenses should be borne by the vendor in compliance with the obligation to deduce title) of—

• production and inspection of all instruments, letters of administration, probates, proceedings at courts, records, statutory provisions and other documents not in the possession of the vendor, or the vendor’s mortgagee or trustee,
• making, procuring, producing, searching for and verifying all certificates, declarations, evidence and information, and all attested, office, stamped or other copies or abstracts of, or extracts from, any statutory provisions or other documents, not in the possession of the vendor or the vendor’s mortgagee or trustee,
• making any copy, whether attested or unattested, of any document retained by the vendor, or the vendor’s mortgagee or trustee, required to be delivered by the purchaser.

Sub-Division

Where land held under a single title is subdivided, then the original document will not be available to each owner of the subdivided part of the land. In this case, one owner will give a statutory acknowledgement and undertaking to produce the title deeds to the other owners if so required.

If the latter ’s title is required to be proved, a statutory acknowledgement and undertaking require the owner who retains the original title documents to produce these for the purpose of proving title if and when necessary.

On a sale of land in lots, a purchaser of two or more lots held wholly or partly under the same title is entitled to no more than one abstract of the common title, nor to more than one copy of any document forming part of the common title, except at the purchaser’s own expense.

The inability of a vendor to furnish the purchaser with an acknowledgement of the right to production and delivery of copies of documents of title is not an objection to title where the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.

Such acknowledgements and such undertakings for the safe custody of documents as the purchaser requires shall be furnished at the purchaser’s expense, and the vendor shall bear the expense of perusal and execution on behalf of or by the vendor, and on behalf of and by necessary parties other than the purchaser.

A vendor may retain a document of title where the vendor retains any part of the land to which the document relates, or the document comprises an instrument creating a trust which still exists, or relating to the appointment or discharge of a trustee of an existing trust.

These provisions take effect subject to the terms of the contract for the sale or other disposition of the land.

The above provisions do not bind a purchaser to complete the purchase in any case where, on a contract made but containing stipulations similar to any of the above provisions, specific performance would not be granted by the court against the purchaser.

A buyer of land may require an endorsement of a note on the deeds of land retained by the seller where the buyer obtains a restrictive covenant affecting those lands.

Sub-Tenancy TItle

Where land sold is held under a tenancy (other than a subtenancy), the purchaser shall assume, unless the contrary appears, that the tenancy was duly granted; and, on production of the receipt for the last payment due for rent under the tenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the tenancy have been duly performed and observed up to the date of actual completion of the purchase.

Where land sold is held under a subtenancy, the purchaser shall assume, unless the contrary appears, that the subtenancy and every superior tenancy were duly granted; and, on production of the receipt for the last payment due for rent under the subtenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the subtenancy have been duly performed and observed up to the date of actual completion of the purchase, and also that all rent due under, and all covenants and provisions of, every superior tenancy have been paid and duly performed and observed up to that date.