Unithold

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The process of buying and selling land that is not registered with the Land Registry. Unregistered conveyancing is becoming less and less significant, since it appears that now about 85 percent of land in England and Wales is registered. Because the whole of England and Wales is now acompulsory registration area, it is expected that unregistered land will gradually become only of historical interest. For the time being, lawyers and conveyancers need to understand both systems.

When buying an unregistered Estate in land, the seller must be able to prove that he has good title to that which he is selling. To do this, he shows an unbroken chain of transfers from some early owner all the way to his own purchase. This collection of information about the transfer of title is called an 'abstract of title' or 'epitome of title'. The documents themselves are colloquially known as 'Title deeds', although not all will be deeds - property may pass by inheritance (evidenced in an Assent), for example.

Clearly the evidence of title cannot go back to the distant past: some document must be deemed to be acceptable in its own right by the purchaser. The first document presented as evidencing title is called the 'root of title' (or 'good root of title'). Historically it was common to ask for a root of title that was very old - 60 years, for example. This has gradually reduced; the usual practice these days is to ask for a root of title at least 15 years old. This doesn't sound very long, but it only has to be longer than the limitation period imposed by statute within actions to recover land must be brought. This is currently 12 years. The root of title should usually be evidence of a conveyance of the estate for value (a sale, in other words), as such a transfer is more likely to have surpressed any lingering third-party interests that may embarass the purchaser.

When buying unregistered land, the title the purchaser obtains is essentially as good as that which the vendor has (after all, Nemo dat quod non habet). The rules governing whether the purchaser is bound by interests owned by third parties are quite complicated. In brief, interests that are legal (rather than equitable), with one exception, are binding. If the land is subject to a legal Lease, for example, the purchaser may find he is bound to honour that lease. The exception is the Puisne mortgage, which must be entered as aland charge to be binding, as must many equitable interests (restrictive covenants, estate contracts, equitable mortgages, etc). Equitable interests that are not required to be entered as land charges are subject to the Doctrine of notice. That is, they will bind a purchaser unless he buys in good faith, offers consideration, and has no notice of them. The most important category of non-registerable equitable interests is probably beneficial interests under a trust. The purchaser will be bound by these interests if he has notice of them, unless Overreaching applies.

Land and Property Law