Common Title Defects

What is a "Defective Title"?

A title can be considered defective if there is something missing from it, or something within the title that should not be. This might be a missing right of way, a piece of land that forms part of the physical property but is not included in the legal title, a public right of way over the land etc.

The aim of this section is to identify some of the more common defects and to offer the appropriate solutions.

Lack of Rights of Way/Drainage

This type of defect is also referred to as "Lack of Easement" or "Abscence of Easement" (an easement being a legal right in relation to land). The problem occurs when access to a property is via a private road, or if it is served by a private sewer, and the defect brings two problems, lack of a right of way/drainage, and lack of covenants for maintenance and repair.

No Covenant for Maintenance and Repair

Where a road or sewer is private, and so the relevant public authority is not responsible for its upkeep, the deeds to each property which uses it should contain a covenant to pay a fair proportion of the cost to maintain and repair it. Furthermore, even though such a covenant may exist, the title may still be considered defective, since this would be a positive covenant, and positive covenants are generally only enforceable between the original covenanting parties. For example, if two people buy a property served by a private road from the builder who includes repairing covenants in each transfer, then those two people can enforce the repairing covenants against each other, however if person A sells their property to person C then person B will not usually be able to enforce anything against person C. He may be able to make a claim against A, but as time passes and the properties change hands several times it will quite quickly become impossible to trace the original owner. 

The proper way to deal with a private road situation (though you will probably be powerless if buying the property second hand) is for the builder to set up a management company, made up of the frontagers to the road, whose function is to collect contributions (whether annually or an adhoc basis) toward maintenance. A restriction should then be placed on each person's title which states that the property cannot be transferred to another person unless the new owner enters into a direct covenant with the management company to share the cost of maintaining the road. This way, every frontager will be an original covenanting party and the covenant will be enforceable against them.

It is rarely practical, due to time constraints, to set up a company as above during a conveyancing transaction, and there is little else that can be done save that the situation should be reported to the purchaser and if the purchaser is taking a mortgage, the lender, and their instructions should be taken.

Should you wish to form a company then you should contact Companies House for more information. Click the following link for a draft of a deed of covenant. As mentioned above a restriction will also need to be registered against the title of each frontager. This must be registered at HM Land Registry using form RX1 . The consent of each frontager will be required. The restriction should be in the following form "No disposition of the registered estate other than a charge by the proprietor of the registered estate or by the proprietor of any registered charge is to be registered without the written consent signed on behalf of [the management company] of [management company address] by its secretary or conveyancer or without a certificate signed by the conveyancer of the applicant for registration that the provisions of a Deed of Covenant dated contemporaneously with the transfer to the present proprietor have been complied with" This will have the effect that each new frontager will need to enter into a covenant with the company to contribute to the cost of repairs and maintenance. As each frontager will always be an original covenanting party the covenants will remain enforceable.

It should be remembered that the problem of unenforceability of positive covenants arises only with freehold property. If the property is leasehold then covenants contained in the lease, whether positive or negative, are always enforceable by the landlord.

Lack of Rights of Way

Where the deeds do not contain a right of way over any road serving the property this can be a problem, as it means that the owner does not have a legal right of access.

The first thing the purchaser's solicitor should do is to carry out a search of the index map (SIM) to try and establish who owns the road. The result will often be that it is not registered to anyone. This does not of course mean that it is not owned by anyone, but it does mean that the owner will usually be impossible to trace. If this is the case then it will be necessary to obtain a statutory declaration, that is to say a declaration sworn in the presence of a solicitor in accordance with provisions of the Statutory Declarations Act 1835, from the seller stating that he has used the road without objection or hindrance and without payment etc. Click the following link to obtain a draft statutory declaration as to use. The declaration does not have to be given by the owner of the property, so for example if the property is let then the tenant would be in a better position to give a declaration as it is he who actually uses the road regularly. Alternatively there may be a neighbour who has lived in the street much longer.

The reason for obtaining a statutory declaration is to assist the purchaser in claiming a "prescriptive right". The law allows that if a right has been exercised for an unbroken period of 20 years or more then the land owner is deemed to have accepted the right and may not object to its continued use thereafter. Having statutory declarations covering 20 years does not give a cast iron guarantee that the right is valid however, since the land owner is still entitled to make a challenge if he can produce evidence to contradict the statements made in the declarations, for example if he can prove he has attempted to challenge the use of the right of way. It is possible to register a note of the right against the title to the dominant (beneficiary) land though this will only be noted as a "claimed right" - that is to say not a proper legal easement. It makes sense to do this the land registry should retain copies of any statutory declarations submitted, which then protects against the possibility of them being lost.

Whether or not it is possible to produce 20 years uninterrupted use absence of easement indemnity insurance should be obtained (though if 20 years can be demonstrated by the seller and the accessway in question is not crucial to the enjoyment of the property then to ask for insurance may be excessive).

Should the accessway be registered then although a statutory declaration supported by indemnity insurance is still an option, it may be preferable for the purchaser's point of view for the owner of the accessway to enter into a Deed of Easement with the seller (or directly with the purchaser). This approach is likely to take more time and be potentially more expensive. The owner of the accessway is entitled to take independent legal advice (which he will no doubt expect the seller to pay for) and may demand a premium in return for granting the right. Furthermore he is of course under no obligation to grant a right at all, and if a request to do so is refused the seller cannot then claim a prescriptive right nor put in place indemnity insurance. Careful consideration should therefore be given to the situation before making an approach to the land owner. Despite the potential risk, a Deed of Easement is still worth considering since it would repair the defect once and for all.

Should a Deed of Easement be opted for then this should be drafted by the seller's solicitors and approved by the purchaser's solicitors before being forwarded to the land owner for signature. The seller's solicitor should advise the land owner that he should obtain independent legal advice, in order to avoid the risk of undue influence. Preferably the seller's solicitors should register the Deed prior to completion. It should be remembered that if there is a charge registered against the land owner's title then the lender's consent will be required to register the right against it. Click the following link for an example Deed of Easement which may be used and amended as appropriate.