- How Can You Protect Your Unregistered Land?
Emily Farrow, in our Residential Property & Conveyancing team, highlights the issues regarding unregistered land and explains how it can be protected.
According to the Land Registry over 80% of land in England and Wales is currently registered. The majority of that which remains unregistered is owned by The Crown, the Aristocracy or the Church. This land remains unregistered because it rarely changes hands and therefore has not been subject to compulsory registration.
Registration of land became compulsory on a piece meal basis on different dates in different parts of the county up until 1990 when all land in England and Wales was subject to compulsory registration if it was sold. For example, in Reading it was compulsory to register any land bought from 1st October 1962 whereas in Henley on Thames it was not compulsory until 1st September 1974.
In 2002 legislation was introduced which required registration of land which was not only sold but also gifted, inherited, mortgaged as well as that subject to other transactions.
If land is unregistered the only proof of ownership is the original deeds. These include the documents which have recorded all past dealings of the land for a period of at least 15 years. A buyer’s conveyancer will require copies of these documents in order to check the title on behalf of their client. Older documents are also often required as they record matters affecting the land, such as rights and covenants. If the deeds are lost or destroyed, proving who owns the property and the rights and other matters benefiting/burdening it is very difficult, although not always impossible. It may be possible to reconstruct the title if copies of the deeds can be located. However, at best the owner will only be able to acquire a “possessory title” which can be challenged at a later date. This is not an attractive proposition to a buyer. With registered land, all of the information that would be contained in the deeds and evidence of who owns the land is stored electronically at the Land Registry. The original deeds are therefore not vital, although they may hold information of interest which is not reflected on the title.
Unregistered land is more complicated and involves more work for a conveyancer to deal with. Checking the title to unregistered land involves reading through all of the deeds to ascertain which sections of the various documents are relevant to the land in question. As it is seen less frequently, many conveyancers do not have the experience necessary to act in a transaction involving unregistered land. There is also a higher risk of fraud when land is unregistered as deeds can be forged fairly easily.
Registered land has the advantage of being quicker and simpler to deal with. The pertinent matters affecting the land are set out in three registers on the title information document. Certainty is also provided by a state-backed guarantee that the register shows the correct owner of the property.
Unregistered land is at greater risk of being lost through a claim for adverse possession. This is because if the Land Registry receives a claim for adverse possession of unregistered land it is required to serve notice on any person who, from the information available or from its local knowledge, may have an interest in the land. However, it is highly likely that the Land Registry will not be aware of the identity of the owner of the land and will therefore not be in a position to serve a notice. The application could therefore be successful without the owner ever being aware of it. If the land is registered the Land Registry, on receipt of a claim, will serve notice on the registered owner of the land at the address for service held for them. This gives the owner of the land the ability to object and/or serve a counter notice. For this reason it is important that owners of registered land update the Land Registry if they change address.
If you own land that is unregistered and you have no plans to sell it in the near future you may wish to consider applying for voluntary registration to take advantage of the protection this offers.
Several members of the Blandy & Blandy Residential Property Team are highly experienced in dealing with voluntary first registration of unregistered land as well as sale and purchase transactions involving unregistered land.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.