15.1 Investigating Freehold Title

This independent OpenExamPrep chapter helps SQE1 candidates study freehold conveyancing practice under FLK2 Property Law and Practice. OpenExamPrep is not the Solicitors Regulation Authority and does not claim official approval, review, or partnership with the SRA. Use the SQE1 FLK2 assessment specification (from September 2026) as the syllabus map. In a live file you would then open HM Land Registry practice guides, the Law Society Conveyancing Protocol, and, if you also act for a lender, the UK Finance Lenders' Handbook.

A freehold transaction is a sequence with a job at each stage. You take instructions and identify who the client is. You deduce title (seller) and investigate it (buyer). You raise searches and enquiries. You report so the client can decide whether to proceed. You approve the sale contract, exchange, complete, and then deal with tax and registration. Missing a restriction on the proprietorship register is not a clerical slip: it can stop the buyer being registered and can put a lender's first legal charge at risk.

England and Wales share HM Land Registry and the same core statutes: the Law of Property Act 1925, the Land Registration Act 2002, and the Law of Property (Miscellaneous Provisions) Acts 1989 and 1994. Welsh language requirements in some offices, and Land Transaction Tax instead of Stamp Duty Land Tax, do bite in practice. The charging rules for SDLT and LTT belong in the later property-taxation chapter. The working rule for this chapter is simple: do not file an English SDLT return for a Welsh land transaction, and do not ignore a restriction just because the rest of the file looks ordinary.

The working structure of a freehold file

On a typical residential purchase you act for the buyer, and often also for the buyer's lender if the SRA Codes of Conduct and the lender's instructions allow it. On a sale you act for the seller. The skeleton does not change:

1. Instructions, identity and source-of-funds checks, client care, and a conflict search.
2. Deduce title (seller) and investigate title (buyer).
3. Pre-contract searches and enquiries (the next section of this chapter).
4. Report to the client, and later certify title to the lender when you act for both.
5. Approve the contract, obtain signature and express authority to exchange, then exchange.
6. Pre-completion: transfer deed, completion statement, apportionments, priority searches, redemption of the seller's charge, drawdown of the buyer's advance.
7. Completion and release of keys.
8. Post-completion: tax return, registration, evidence that the seller's charge has been discharged, and a closing report.

Investigation of title is the second box on that spine. Everything after it depends on what you found, and on whether you told the client in time to make a decision.

Registered title: official copies

Most files are registered. The seller's solicitor obtains official copies of the register and the title plan and sends them as the deduction of title. The buyer's solicitor reads them as a working document, not as a brochure. Official copies are a snapshot of the register at the time they were issued. They do not freeze priority (that is the job of an OS1 search later) and they do not show overriding interests.

The register has three parts. Learn what each part is for, then hunt for problems rather than skimming the proprietor's name and stopping.

Class of title is not decoration. Absolute freehold title is the ordinary goal and the class most lenders expect. Possessory title usually means the proprietor could not produce a full paper trail at first registration (lost deeds, or a claim based on possession). A buyer, and almost every lender, will want a practical package: title indemnity insurance, a statutory declaration of possession, and a plan to apply to upgrade the title once the limitation period has run. Qualified title is subject to a specified defect. You must understand that defect and say so in the report; you do not bury it under a general sentence that the title is satisfactory.

For a registrable disposition, Schedule 3 to the Land Registration Act 2002 is the overriding list that bites: short legal leases, certain legal easements, and the interest of a person in actual occupation (subject to the statutory exceptions, including failure to disclose on reasonable enquiry). Williams & Glyn's Bank Ltd v Boland is the warning that an occupying spouse with a beneficial interest can bind a buyer or lender who failed to inspect and enquire. Overreaching (City of London Building Society v Flegg) is the usual conveyancing answer: pay capital money to two trustees, or to a trust corporation, so that beneficial interests come off the land and attach to the proceeds. A Form A restriction on the proprietorship register is the register shouting that this is trust land. Paying a sole surviving spouse without a second trustee does not overreach, and the restriction will block registration of the transfer.

The title plan uses the general boundaries rule. A red line that disagrees slightly with a fence is not automatically a defect. A missing access route, a building straddling the line, or a flying freehold (part of the building occupying airspace above neighbouring land) does need a solution: a deed of easement or support, a regularisation with the neighbour, or, where that is not available, a frank discussion of insurance and residual risk.

Documents referred to on the register must be read. A charges-register entry that points to a 1938 conveyance is an instruction to obtain the filed copy and extract the covenant wording. Positive covenants do not run with freehold land at law. What you often see instead is a chain of indemnity covenants. If the chain is broken, say so. Restrictive covenants still need the land-law analysis: whether the covenant is restrictive in substance, whether the land to be benefited is identifiable, and whether the burden was protected (a notice on registered land; a Class D(ii) land charge on unregistered land).

Unregistered title: epitome and deduction of ownership

Unregistered freehold still appears, especially on older rural land and on plots that have never hit a compulsory-registration trigger. The seller deduces title by supplying an epitome of title: a chronological index of the documents, with copies, showing how the seller became entitled to sell.

The statutory length of title is 15 years (Law of Property Act 1925, s.44, as amended by the Law of Property Act 1969). The epitome should start with a good root of title: a document at least 15 years old that deals with the whole legal and equitable interest in the property being sold, contains a description by which the property can be identified, and does nothing to cast doubt on the title. A conveyance on sale is the classic root. A voluntary conveyance, or a general gift in a will, is a weaker root because it may not prove that the grantor owned what they purported to give.

From the root forward you check every link: execution as a deed, parties, historic stamping, assents by personal representatives, deaths, consistent descriptions, and whether each disponor had capacity and the right to sell. You then search the Land Charges Register against the names of all estate owners for their period of ownership, including well-known name variants. The classes that matter on a freehold sale are C(i) puisne mortgage, C(iv) estate contract, D(ii) restrictive covenant, D(iii) equitable easement, and F home rights. A search against the wrong name is not a search.

An index map search tells you whether any part of the land is already registered and reveals neighbouring title numbers. Completion of a sale of unregistered land triggers compulsory first registration. The buyer's solicitor must apply in time. Missing that application is a professional disaster, not a filing inconvenience: the buyer can lose priority to later interests.

Issues, further action, and reporting to the client

Investigation is only half the job. You convert each defect into an action, or you advise the client not to proceed.

The report to the client is a decision document. It should state the estate being bought, who owns it, the class of title, the incumbrances that will bind after completion, the searches still needed or already done, each material defect and the proposed solution, and the decisions you need from the client. Uploading official copies to a portal with a note to read them is not a report. If you also act for a lender, you cannot let the buyer live with a defect that the Lenders' Handbook would require you to report or cure. That is a conflict you must face before exchange, not a reason to stay silent in the certificate of title.