Briefing note: Reasons why you should keep hold of your old deeds

The application for registration of the land was rejected before the Lower Tribunal and so he appealed to the Upper Tribunal. There was a conflict between the written description of the land contained in a Conveyance of 1918 and the plan attached to that Conveyance. Whilst the private lane was included in the written description contained within the conveyance, it was not shown edged in red on the plan as being included in the land being sold. 

The Upper Tribunal had to decide how to resolve this conflict between the written wording and the plan. Evidence was allowed of the contract preceding the sale and other transactions which had taken place around the same time as the 1918 Conveyance affecting adjoining properties. It was apparent from those documents that the farm owner’s grandfather who bought the farm in 1918 seemed to be recognised to be the owner of the lane, in that he consented to the grant of rights of way for the benefit of a neighbour’s property which took place around the same time and also by a later Deed granted a further right of way to another land owner nearby. 

The Upper Tribunal therefore decided that the written wording of the conveyance overrode the plan, allowing the farm owner to be registered as the owner of the private lane. This decision had no impact upon the existence of, or the scope of rights of way that the neighbour may or may not have enjoyed over the lane and was simply confined with ascertaining who had legal title to the land.  The Decision turned on detailed technical arguments about whether a plan which was expressed to show the relevant land as being “more particularly delineated” on the plan, elevated the plan to a more substantial status which overrode the wording of the Conveyance. The Upper Tribunal held that such wording would give the plan priority over the words if the words were ambiguous but that was not automatically the case where (as here) both the plan and the words were quite clear but in conflict.  

 

What role did the old deeds play?

It was clear from the arguments before the Upper Tribunal that the content of historic deeds dating back to 1918 were fundamental to the outcome of this case. Without access to these old records, the case may have been decided differently.

 

Old deeds and ownership issues

The Land Registry operates a system of registration which offers a Government guarantee of ownership of land. However, contrary to the headlines, the Land Registry’s registration process is not definitive as to the precise position of boundaries, with the Land Registry operating a “General Boundaries Rule”, the effect of which means that they refuse to guarantee the precise position of boundaries by reference to their own plans once the land is registered. There is therefore a “fuzzy” area along the boundary line which can give rise to disputes and uncertainty, particularly when undertaking development.  

More importantly, it is also worth noting that the Land Registry can also suffer from human error, so that when land is first registered, mistakes can be made during the registration process by the Land Registry surveyors resulting in areas of land being wrongly omitted from the registered title as a result of judgements being made by the surveyors, often based on what they see are being within or outside the physical boundaries on the land.

Old deeds can also help explain why certain entries appear on the title registers and whether they have any ongoing relevance. This could save having to buy indemnity insurance in some cases. For example, it is commonplace for the Land Registry to note the existence of a right of way, or a right to lay cables against the entirety of a registered title, however, large that may be in area, without giving any clues as to where the cables are. This means that if you are buying a piece of land, which is remote from the location of the relevant cables, you can still inherit the entry on the registers of title concerning those cables however remote they are from your parcel of land. It is not a straightforward process to try to explain to the Land Registry that the relevant entry should be cancelled, even when it clearly does not affect the land that you are buying. Having the relevant old deed to hand can solve that first by demonstrating that the relevant cables are entirely remote from the piece of land you are interested in and secondly to allow an application to the land registry to remove the relevant entry from the title to your land, leaving it in place just upon the registers for land through which the cable runs.

 

Legal and physical boundaries can be different

It is a fundamental principle that the existence of a legal boundary should not necessarily be determined by the existence of a physical boundary. There are many reasons why landowners choose to erect fences or hedges some distance inside the legal boundary line. Often this is done for ease of management of the boundary features or simply for convenience having regard to the layout of the land. 

In rural properties a parcel of land is often separated from the adjacent road by a ditch, verge and hedge. The Land Registry have over the years consistently failed to properly take into account legal principles concerning such boundaries. When acting for landowners or developers, we encounter situations where roadside verges and ditches are wrongly excluded from a registered title, causing problems for future sales and development. 

It is no assistance for the Land Registry to suggest that reliance be placed upon common law principles which presume up to the mid-point of a road or presume that, where there is a hedge and ditch, the boundary sits on the roadside of the ditch. Such arguments being by their nature ambiguous, offer no comfort to buyers or, just as importantly, funders of land  purchases.

Whilst possession of the old pre-registration Deeds does not necessarily guarantee an answer to these questions, they often do provide historic clues as to the correct positioning of legal boundaries, which can then be used to reassure purchasers, tenants or lenders or, at least, help to secure appropriate indemnity insurance to assist a transaction. 

In some cases, it is also possible to make retrospective applications to the Land Registry for the title boundaries to be properly recognised and for the incorrect delineation of the boundaries by the Land Registry surveyors to be corrected. It should be noted, however, that the Land Registry is reluctant to admit errors and even more reluctant to make changes to Land Registry plans if it would necessitate changes to the boundaries of titles to neighbouring properties, which are already registered. 

The problems with land registration are not confined to rural areas but can affect urban properties too. In a number of instances, we have seen cases where Land Registry’s plan boundaries had been plotted by refence to physical structures such as brick walls, set back from the highway boundary, or gates set back behind an ornate entrance way. The resultant gap between the title boundary and the highway boundary has caused huge problems for the sale and development of land, adding to expense and delay during transactions.

It is only by prompt reference to the old pre-registration deeds that it is possible to have these errors addressed. Ideally these issues of fine detail  should be checked at the time first registration occurs but this is easily overlooked. Current massive case-handling delays within the Land Registry compound the problems as it may be a year or so before a buyer of land is registered as proprietor and can inspect the newly issued registers. It may be too late to address problems by then.

 

Why are old deeds lost?

Many people do not recognise the significance of the old deeds, often seeing them as entirely irrelevant or at best an interesting decorative document to hang on your wall. Such deeds get lost in dusty corners of houses and destroyed if a house is cleared after the owner dies, others languish in solicitors’ offices long after their clients have died or transferred to other advisers. Banks too retain deeds.

Increasing pressure to dispense with the old deeds comes not only from the Land Registry but also from lending institutions who have been persuaded that such documents are no longer necessary to protect their security. Much of the drive comes from a desire to remove the costs of storage of hard copy documents, particularly as bank branch networks shrink.

The transition to digitisation of records also drives forward the process of abandoning old deeds, but there is often a cost which the institutions, including sadly the Land Registry, are happy to impose on landowners, in the resultant incomplete records. It seems to have been decided that it is simply too expensive and time consuming to create a 100% complete digital record of land title but that message is not shared generally. Indeed the public message is that you can rely on the Land Registry records – true but only in part.

We strongly recommend that clients acquiring land for their own use or for development should make efforts to acquire the pre-registration Deeds as part of the package of documents handed over on completion, even if the existing Land Registry title is already registered. 

 

Documentary treasure hunting

In some/many cases, the possession of the deeds and the ownership of the property have already become separated and the prospect of recovering control of the deeds is lost. 

Sometimes careful investigation of adjoining Land Registry title registers can unearth important missing pre-registration deeds affecting a wider area. In other cases it may be necessary to extend the search by asking (hopefully co-operative) neighbouring owners or even investigating records held in County Archives or local history collections.

Discovery of such documents can assist in correcting errors on the legal title and providing clarification as to whether third party rights affect particular areas of land. 

 

Conclusion

Our strong recommendation therefore is to keep custody of all pre-registration deeds or scanned copies of them, in order to assist in dealing with future problems and answering difficult questions over a fine detail such as the extent of boundaries and the application of third party rights.

 

For further information please contact Derek Ching, Brian Dowling or William Nassau-Lake. Alternatively, read further on our Development and Housebuilding services.