Development Q&A: We are looking to acquire a site for development, but part of the land is unregistered. How can we find out who owns it, and what if the person who claims to own the land has lost their title deeds? Ben Brayford answers your questions.
In this bulletin our lawyers provide practical tips and solutions to frequently encountered development issues. Please feel free to submit your own questions by emailing [email protected]
Q: We are looking to acquire a site for development, but part of the land is unregistered. How can we find out who owns it, and what if the person who claims to own the land has lost their title deeds?
A: Determining who owns unregistered land is essentially an investigative process. Visiting the site to see if there is any evidence of who might own or occupy the land as well as making enquiries in the local area is usually a good start.
A review of any recent planning application in respect of the site as well as looking at documents registered against the Land Registry titles for any adjoining land might point you in the direction of either the current or recent owners. In addition, depending on the area in question, there may also be a local archive (not every area has one but the starting point for this would be the relevant local authority) which may contain copies of the title deeds.
If the owner has been identified, but has lost or misplaced its title deeds, then it is still possible to acquire the land from them. The owner would need to give an account of the events that have resulted in the loss of their deeds, which the Land Registry will consider on its merits. The better the evidence the owner can provide, the greater the chance of success. Unless the explanation is beyond doubt then the Land Registry may choose to grant what is known as "possessory title" rather than the standard (and best) class of title known as "title absolute".
Where land is held with possessory title, there is a risk that a third party may subsequently come out of the woodwork, asserting that they have a better claim on the land and seek to be registered in your place. This might happen, for example, if they were in possession of the title deeds. Often however, this sort of risk can be mitigated by obtaining a possessory title indemnity insurance policy on appropriate terms. Obviously the more evidence there is that you are acquiring the land from the true owner, the easier (and cheaper) that will be.
It is therefore important to get as much information as possible from the seller and from any other relevant sources prior to purchase of a possessory title.
And finally, it is worth remembering that possessory title can be upgraded to absolute title after 12 years from first registration at the Land Registry, or before that if additional title evidence comes to light.