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Land registration in England and Wales began way back in 1862. And since 1990, it’s been compulsory to apply for first registration of land if a specific event occurs, most commonly:
- a sale of the land;
- a lease of the land for a term longer than seven years; or
- if the land is inherited.
Despite that, around 10% of land remains unregistered, and in an earlier article, we considered the very particular issues to be aware of when buying unregistered property.
Lost title deeds unregistered property
The procedure for land registration includes providing full documentary evidence of title to HM Land Registry. That means sending original deeds and documents relating to the property, or certified copies of them. But what happens if the original deeds have been lost or destroyed?
What to do if original title deeds are lost
The procedure for applying for first registration where the deeds are not in the possession of the applicant is set out in Rule 27 of the Land Registration Rules 2003. There are three principal requirements:
Provide an account of the events resulting in the loss or destruction
The Land Registry will be more concerned with how the deeds were lost or destroyed than with the content of the documents themselves. It’s therefore crucial to provide a detailed account supported by evidence. The account should provide a timeline to the point when the applicant last knew of the deeds’ whereabouts, including:
- who had possession and when?
- why they were in possession and where they held them.
Often, the last known holder of deeds is a lender holding them for security.
The applicant should then set out, to the best of their knowledge, how, when, and where the loss or destruction occurred. For example, it may be that their solicitor had the deeds when they purchased the property in 1989. The solicitor then sent them to the mortgage lender as security, and the lender now says it cannot locate them. Or perhaps the deeds were held in the basement of a specific property from a specific date until they were destroyed in a flood in 2009.
The applicant must also detail the steps taken to recover the deeds by reference to letters, emails and other communications and documents. For example, the various enquiries made with the mortgage lender and the solicitor as to the deeds’ location.
Reconstruct the title
To reconstruct the title, the applicant must attempt to show how the title has devolved to them. In other words, they must demonstrate the trail of ownership and detail the deed or document that created their interest. In the absence of the original document(s), the applicant must provide secondary evidence.
If they are fortunate, the applicant may have certified copies or completed drafts of the lost documents. If so, the copy documents should be supported by a statutory declaration confirming:
- that title has been investigated in the usual way by a solicitor;
- the source of the copy deeds; and
- that the deeds were properly executed.
Failing that, the applicant may have a receipted schedule of deeds, inheritance tax declarations, or receipts for insurance premiums, rates or other charges relating to the property.
Evidence of the possession of the land is also important. This might be demonstrated with utility bills addressed to the applicant at the property.
The applicant must inform the Land Registry as to whether there was a mortgage or other charge on the land when the deeds were lost, and if so, provide evidence of repayment. And they must also submit Land Charge Searches, and details of other known incumbrances over the land.
Evidence of the applicant’s identity
The final requirement is that the Land Registry will require the applicant to prove their identity.