Thrings Farms partnering with Farmers Weekly, answer readers questions. Josephine Taylor of advises on the process for registering land for which the deeds are missing.
Question: In 1972 we acquired a block of farmland from my late mother’s estate. This land was then given to our two children in 1974. The solicitors who held the deeds and the correspondence have lost them and also failed to advise us on registering the land with the Land Registry.
We have copies of the correspondence we had with the law firm which includes reference numbers under which the deeds are held. Please can you advise us how we progress in registering the land, which has been in our family since 1919?
You may apply for first registration of land if the title deeds have been lost, and this is not wholly unusual, especially when dealing with land which has been with the same family for several generations.
The Land Registry has special requirements for this form of application. Your conveyancer will be able to prepare the forms for an application for first registration. These are forms FR1 and DL, and the conveyancer will also ensure the appropriate fee is lodged.
In substitute of lodging the documentary title, you will need to provide an account of the events that have led to the loss of the deeds and reconstruct the title as best you can.
The Land Registry form ST3 (statement of truth) is used in support of an application for registration of land based on lost title deeds which accompanies the form FR1 and form DL.
This form sets out the framework for the information and evidence you will need to supply. Alternatively, you could use your own form of statement of truth or a statutory declaration, provided they comply with the Land Registration requirements.
You will need to provide a full, factual account of the events that have occurred leading to the loss of the deeds. It is good to include additional statutory declarations by people who can provide an account of the events leading to the loss of the deeds.
For example, where the deeds have been lost while in the custody of the conveyancer, the conveyancer should give a declaration as to title.
The account will need to establish:
- Who had possession of the deeds and where they were held
- Why the person in possession had custody of the deeds
- When, where and how the loss occurred
- What steps have been taken to recover the deeds
- Whether or not at the time of the loss the owner had created any mortgage, charge or lien on the property
- Whether the applicant is in occupation or in receipt of the rent and profits
- That the applicant is entitled to apply for registration.
It is often more important to prove who held the deeds prior to their loss than to establish what they contained.
When the title deeds have been lost the Land Registry will sometimes ask a surveyor from Ordnance Survey to inspect the land before the registration is completed.
To support the account of the loss of the deeds, you must also attempt to reconstruct the title to show how it has devolved.
The nature and quality of the secondary evidence will vary, but you must submit the best evidence you can, that is, tenancies, any Rural Payments Agency maps or other government grants and schemes along with any correspondence showing possession of the deeds and any copy deeds available.
You also have a duty to disclose certain types of overriding interest if they affect the land, such as easements, that you are aware of, especially as they may not be apparent from the reconstructed documentary title.
Your conveyancer will also need to lodge land charges search results with the application, having made searches against the names of any previous and existing estate owners.
When the Land Registry considers the application, often it will grant only a possessory title where the evidence supplied does not establish those events relating to the title beyond doubt.
Title absolute is the best class of title and shows beyond any doubt that the title is owned absolutely, whereas possessory title could be open to challenge.
After 12 years of possessory title, the legal proprietor may make an application to the Land Registry to upgrade the title. Each application is considered on its individual merit.
We would also recommend that independent legal advice is taken to determine whether the firm holding the deeds discharged their professional responsibilities and, as a consequence, whether they ought to cover or contribute towards the cost of applying for registration.
If you would like to know more about any issue raised in this article, please contact Josephine Taylor.
