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Tracing Ownership of a Property Or Land

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Tracing Ownership of a Property Or Land BRIEFING PAPER Number 8567, 16 May 2019 Tracing ownership of By Lorraine Conway property or land Contents: 1. Land ownership 2. Registered and unregistered land 3. Who owns that property or piece of land? www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Tracing ownership of a property or land Contents Summary 3 1. Land ownership 4 1.1 Relevant legislation 4 1.2 Crown land 4 1.3 Estates in land 4 1.4 Types of legal ownership 4 2. Registered and unregistered land 6 2.1 Recording land ownership 6 2.2 Law Commission recommendations to update land registration 7 2.3 Registered land, what does it mean? 7 2.4 Unregistered land, what does it mean? 8 3. Who owns that property or piece of land? 9 3.1 First step: searching the Land Registry 9 3.2 Second step: local investigation 9 3.3 Third step: bona Vacantia property & escheat 10 Cover page image copyright: Semi-detached brick and flint houses by Kolforn (Wikimedia). This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license. Image cropped. 3 Commons Library Briefing, 16 May 2019 Summary Constituents often ask their Members of Parliament, “who owns that empty property or piece of land?” Although a simple question, it is not straightforward to answer. Property in England and Wales can be either registered or unregistered and the steps involved in tracing ownership will vary accordingly. Any member of the public can search online the Land Registry (a fee is payable), information is available from the GOV.UK website. The Library cannot undertake Land Registry searches on behalf of constituents. If the property or land is registered, then a Land Registry search should reveal the owner(s) name. If the property is unregistered, then matters become more difficult. Lack of registration does not mean that a piece of land is not owned but ascertaining who owns the land may involve some investigatory work. Owners of unregistered land will have a bundle of paper deeds, which form a record of previous sales, mortgages and other dealings with the land. In cases where there is no legal owner, the property may have become bona vacantia and have reverted to the Crown. This Commons briefing paper provides information on how to trace ownership of a property or piece of land (section 3), in the process it also provides a summary of land ownership (section 1) and what is meant by registered and unregistered land (section 2). This briefing paper is concerned with England and Wales only; Scotland has its own land law. Northern Ireland and Scotland also have their own land registries. 4 Tracing ownership of a property or land 1. Land ownership 1.1 Relevant legislation • Land Registration Act 1925 (LRA 1925) • Land Registration Act 2002 (LRA 2002) • Land Registration Rules 2003 (LRR 2003) 1.2 Crown land Land ownership in England and Wales is based on historical feudal principles. The Crown owns all land in England and Wales; people own estates in land either directly or indirectly from the Crown (for example, a freehold estate or a leasehold estate). There are different categories of Crown land. For detailed information, see Part XI of the Law Commission’s report on “Land Registration for the Twenty-First Century: A Conveyancing Revolution.” 1.3 Estates in land Major changes to property law in England and Wales were made in 1925, for example the Law of Property Act 1925, which reduced the number of estates in land capable of being created or conveyed at law to an estate in fee simple absolute in possession (the freehold estate) and a term of years absolute (the leasehold estate). 1.4 Types of legal ownership This is a complex area of the law. The following information is at best an outline of the main types of ownership. Land can be owned in various ways. A person might be the legal owner (freehold or leasehold) and/or they might have a beneficial interest (sometimes known as an owner in “equity” or an “equitable owner”). For example, someone who has contributed to the purchase of a property might (though it will depend enormously on the specific facts) have a beneficial interest in the property. Expert advice would usually be needed to verify the existence of a beneficial interest. If two or more people own a property jointly they will own it either as joint tenants or as tenants in common. If they own the property as tenants in common, they may own it in equal or unequal shares. The crucial point to note is that joint tenants or tenants in common relates to the equity in the property. The legal title (the right to transfer or mortgage the property) can only be held as joint tenants. Whether a property is held as joint tenants or as tenants in common makes a difference to what happens to the property on the death of a joint owner, both in terms of who is entitled to the deceased’s share in any equity (the money which would be released if the property was sold 5 Commons Library Briefing, 16 May 2019 after repaying any mortgage) and what steps need to be taken to sell the property. When a property is held as joint tenants, then the joint owners are both entitled to the whole of the equity. This means that on the death of one of the joint tenants the whole of the equity passes to the survivor, irrespective of any provision to the contrary in the deceased’s will. When a property is held as tenants in common the owners hold the equity in shares, often in specified unequal shares. Upon the death of a tenant in common, their share does not pass automatically to the survivor (as with joint tenants) but via the deceased’s will or, if there is no will, via the rules of intestacy. However, only the equitable share passes, not the legal title. 6 Tracing ownership of a property or land 2. Registered and unregistered land 2.1 Recording land ownership There are two parallel systems for recording ownership of land in England and Wales: registered and unregistered. HM Land Registry records property ownership in the Land Registry, which is the official ownership list for property in England and Wales. Northern Ireland and Scotland have their own land registries. Since 1990 it has been compulsory when buying unregistered property or land to apply to have the land registered within 2 months of a sale completing. The LRA 2002 extended the range of transactions subject to compulsory first registration and encourages voluntary registration. The overriding objective of the LRA 2002 is that: “[…] the register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land online, with the absolute minimum of additional inquiries and inspections”.1 Other transactions which result in a change of ownership and therefore trigger a requirement to register, include: • gifts of land; or • assents by personal representatives. HM Land Registry: Land or property must also be registered for the first time if it’s being compulsory mortgaged. registration The LRA 2002 does not compel the registration of all remaining unregistered land. However, even where there is no ‘trigger’, a legal owner may be persuaded to register their property for the first time because of the various benefits that derive from registration, including: HM Land Registry: voluntary • proof of ownership; registration • protection against land fraud; and • making it easier to change, sell or give the property away in the future The owner can either elect to register the property themselves or instruct a solicitor or conveyancer to do it on their behalf. Detailed information on how to register a property for the first time is provided on the gov.uk website. According to HM Land Registry, as of April 2018, over 85% of the land mass of England and Wales is registered.2 Much of the land owned by the Crown, the aristocracy, and the Church has not been registered 1 Law Commission report: Land Registration for the Twenty First Century: A Conveyancing Revolution, para. 1.5 and the Explanatory Notes to the LRA 2002, para. 10. 2 7 Commons Library Briefing, 16 May 2019 because it has never been sold, which is one of the main triggers for compulsory registration. HM Land Registry is aiming to achieve comprehensive registration in England and Wales by 2030. This is a key target for the Government and is a core component of its Business Strategy 2017-2022. It would result in a more definitive record of property ownership, making property transactions simpler. However, there will always be the odd piece of land where the owners are difficult to identify, which is why the Land Registry is aiming to achieve ‘comprehensive’ rather than total registration. 2.2 Law Commission recommendations to update land registration On 31 Mar 2016, the Law Commission published a consultation paper, “Updating the Land Registration Act 2002”, on improving the operation of certain aspects of the Land Registration Act 2002 (LRA 2002). This included some aspects relating to first registration. In July 2018, the Law Commission published its response to the consultation. In addition to its recommendations, the Law Commission published a draft Bill to update the LRA 2002. The changes are designed to combat fraud and inefficiencies in the land registration system. 2.3 Registered land, what does it mean? HM Land Registry maintains a register of all registered land, which is Registration is the indexed on a map.
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