About 90% of the land in England and Wales is registered. Since 1990, it has been compulsory to register land if it is subject to a specific event, most commonly a sale, lease for a term of more than 7 years or if it is inherited.
However, you do not have to wait for such an event if you want to register your land. You may apply to HM Land Registry (“the Land Registry”) to voluntarily register your land. Indeed, there many benefits to registering your land. To read about these benefits, click here.
The procedure for applying for first registration involves proving to the Land Registry that you are the legal owner of the relevant interest which you are applying to register. For example, if you believe you own the freehold interest in the land, you need to prove this to the Land Registry. The is done by providing full documentary title to the Land Registry – this means providing the original deeds and documents relating to the land or certified copies of them. The certified copies must be certified by a conveyancer and dated no more than 3 months before the application is received by the Land Registry.
The deeds will set out a trail of ownership of the land and the history of all rights and burdens. But what can you do if the original deeds have been lost or destroyed and are no longer in your possession?
Thankfully, all hope is no lost. Our shining beacon of light comes in the form of Rule 27 of the Land Registration Rules 2003. As unspectacular as it may sound, Rule 27 is rather useful as it provides the requirements for applying for first registration in a circumstance where the title deeds have been lost or destroyed.
The requirements can be broken down into 3 parts:
1. Provide an account of events that have resulted in loss or destruction.
2. Reconstruct the title.
3. Provide evidence of the identity of the applicant.
The requirements can be set out in form ST3 or a statutory declaration or a combination of both. Multiple declarations can be submitted with an application, including declarations from conveyancers.
1. Provide an account of events that have resulted in loss or destruction
The Land Registry themselves have said that they are more concerned with the account of events leading up to loss or destruction than what was actually contained in the deeds themselves. Therefore, it is critically important to give as detailed an account as possible, supported by evidence.
The account should essentially provide a timeline, up to the date which the applicant last knew the whereabouts of the deeds. The account needs to detail who had possession of the deeds, when they had possession, why they held them and where they held them. Note that it is very common for the last known holder of the deeds to be a lender who is holding the deeds as security for money owing.
The applicant will then need to set out, to best of the applicant’s knowledge, when, where and how the loss or destruction occurred. For example, it may be that your conveyancer in 1985 acted for you in securing a legal charge over the land, then sent the deeds to the lender as security and then lender is now claiming that it cannot locate them. Or it may be that the deeds were held at a specific address at a certain time and were destroyed by a flood in 2007. The key is the detail.
You also need to set out what steps have been taken to recover the deeds. For example, you may have made various enquiries with lenders and firms of solicitors as to the location of them. This will also help you build the timeline leading up to the loss. It will help the application if there is a paper trial to evidence this, so we recommend you make enquiries by letter or email and make notes of any meetings.
2. Reconstruction the title
To reconstruct the title, you must attempt to show have the title has been devolved to you i.e. show the trail of ownership and at the very minimum, show or detail the deed or document which created your interest. As the original deeds are lost or destroyed, the only way this can be done is by submitting secondary evidence.
The best possible secondary evidence will be certified copies or completed drafts of the deeds. For example, you may have an Epitome of Title made up of certified copies. Remember - this is secondary evidence because the certification of the copies will be more than 3 months old. Where possible, the copy deeds should be supported by a statutory declaration that the title has been investigated in the normal way by a conveyancer, the source of the copy deeds and that the deeds were properly executed.
The application should also provide evidence of possession of the land – for example utility bills addressed to the land, or if the applicant is not in actual occupation, evidence of receipt of rent.
You will need to inform the Land Registry as to whether there was a mortgage, charge or lien on the land at the time of loss or destruction. You should then include evidence of repayment when making the application.
A lesser quality of secondary evidence may be shown by a receipted schedule of deeds or copies of estate duty or inheritance tax declarations, receipts for insurance premiums or receipts for any other rates, taxes or insurance relating to the property.
The Land Registry also advises that Land Charge Searches should be submitted with the application. In addition, any known incumbrances (such as third-party rights over the land) must also be disclosed.
3. Provide evidence of identity of the applicant
Most Land Registry applications require the applicant to prove their identity, and an application for first registration where the deeds have been lost or destroyed is no different. In particular, the evidence helps demonstrate that the applicant holds the legal estate or is entitled to apply for registration.
What class of title will the Land Registry grant?
It is important to note that there are a number of classes of title which the Land Registry can decide to grant after receiving an application. These are:
i. Absolute Freehold
ii. Possessory Freehold
iii. Absolute Leasehold
iv. Good Leasehold
v. Possessory Leasehold
The class that the Land Registry decides to grant will depend on the strength of the evidence of the application and the strength of application itself. The details of the classes of title are beyond the scope of this post but in summary, absolute freehold/leasehold are the ‘best’ classes of title – this is the title which would be granted if you had provided the Land Registry with the original deeds. Possessory title can have an adverse effect on the value of land, and it can put buyers off due to the fact there is not absolute certainty of ownership.
At Pardoes, we are able to advise you on making an application for first registration where the deeds have been lost or destroyed. We offer tailored advice to ensure you stand the best chance of obtaining title absolute.
If your deeds have been lost or destroyed and you would like to discuss making an application for first registration, then please contact 01278 457 891 and ask to speak to a member of the Commercial Property Team or email firstname.lastname@example.org.