Method of deduction for unregistered land – epitomes and abstracts
There are two acceptable formats to help a seller in the deduction of land, viz. epitome and abstracts. The following article explains these formats in detail and also explains the procedure involved in submitting them.
Format
In the case of an unregistered land, ownership can be proved through the title deeds. But the seller cannot give them to the buyer until the transaction is completed. Therefore, he gives an abstract or an epitome of the documents to the buyer. Sometimes, evidence for ownership of title can be proved through a combination of two different styles of presentation.
While an abstract contains the essence of all the documents in precise, an epitome refers to the schedule of documents that comprise the title along with the photocopies of the documents. While abstracts have now become outdated, they are still used in the case of older titles.
In an epitome, the documents are arranged chronologically and numbered accordingly. Every document should be identified by its date, type, details about the parties involved, and information whether the copy is supplied with the epitome and whether the original document will be handed over to the buyer on completion of sale.
The photocopies of documents attached in the epitome should be of good quality and marked to show the document’s corresponding number in the list. If photocopies of plans are added, they should be coloured and marked so that they are similar to the original document.
The root of title
Irrespective of the format chosen, all registered titles begin with the root title. Common law requires the root title to be at least 15 years old. A good root title is one which:
- Is at least 15 years old,
- Contains details about the entire land intended to be sold,
- Contains a reasonable description that helps to identify the property, and
- Does not contain anything that may raise suspicion or doubt about the authenticity of the seller’s claim to the title.
The Standard Conditions of Sale and the Standard Commercial Property Conditions provide space for the seller to claim that the document attached is the root title for the transaction. While the document could be of any age, it is up to the buyer to accept that the root is indeed a good one.
Documents capable of being good roots to the title
Documents relating to a mortgage or conveyance are generally acceptable as a good root title due to the fact that they offer a double guarantee. The current buyer should be investigating the title for a period not less than 15 years. The earlier buyer too would have investigated the root title for a period not less than 15 years. Thus, root title for a period of 30 years is automatically investigated.
If documents relating to a conveyance or mortgage are unavailable, the title should commence with either a voluntary conveyance or an assent dated after 1925. Voluntary conveyance and assents are usually because of gifts of land, it is understood that no investigation would have been carried out when it took place. The double guarantee provided by a conveyance on sale or mortgage does not exist here and hence considered as a less than satisfactory root to the title.
The dangers of accepting a short root
As told earlier, a good root title is one of the main things to be satisfied upon when investigating a title and the buyer is bound by issues that would be revealed by a title that has a good root. But he is not required to accept that the root provided to him is satisfactory.
Under S44 of the LPA 1925, a buyer is bound by issues revealed by a good title, even though he may not have notice of matters that began with an earlier root. Thus, a buyer who accepts a title that does not fulfill S44 will be bound by issues that are revealed in a good title, even though he is unaware of these matters. Also, the title is now unlikely to be registered as an absolute title.
It is to be noted that such a situation is a rare occurrence and in most cases the seller would be able to provide a good root title. But when the buyer is not satisfied with a short title, he should not accept the seller’s explanation for the short title. He should also look into the buyer’s agreement with the lender before accepting a root title. The difficulties experienced in obtaining a defective insurance should also be considered.
Documents and events to be included in the abstract or epitome
Here’s a list of documents and events that should be included in the epitome or abstract. For a document to be included in this list, it should have affected the land and should show an unbroken chain of ownership right from the root to the present seller.
a) Conveyance on sale or gift
b) Death
c) Grant of representation to the deceased owner’s estates
d) Change of name of the estate owners. This is usually changed on marriage or by a deed poll or a statutory declaration
e) Lease
f) Mortgage
g) Discharge of legal mortgage
h) Documents that pre-date the root title, but indicate the presence of restrictive covenants that affect the property
i) Memoranda endorsed on documents of title
j) Power of attorney under which a title has been executed
Documents which need not be included in the abstract or epitome
There are some documents that need not be included in the abstract or epitome, but their inclusion shall nevertheless be helpful to the buyer. They include:
- Documents such as death or marriage certificates, land charges department search certificates, etc. Although the latter is not compulsory, it is considered to be good conveyancing practice to include search certificates so that the buyer can be assured that searches have been correctly made in the past and they need not be repeated during his own investigation. Death and marriage certificates help a buyer get a complete picture of the title.
- Leases that have expired over time,
- Documents that pre-date the root title. Documents that have been executed under a power of attorney should be included irrespective of its date.
Production of original documents
According to Standard Condition no. 4.1.3, the seller should produce the original of all relevant documents, abstract or epitome, or attach a copy that is attested as original by a solicitor of examination. This is called ‘marking’ and is a certification by a solicitor that the copy has been verified against the original and that it is a true copy of the original.
Documents that will not be handed over on completion
The epitome or abstract should also indicate the documents that shall be handed over to the buyer and those that shall be retained by the seller. On completion of the transaction, the buyer can ask for all documents (related to the title), except those that do not affect the interest of the land retained by the seller. For instance, when a seller sells only a part of the land, he is entitled to retain documents relating to his interest in the land.
Similarly, a power of attorney may be retained by the seller, because the donee of the power needs to retain the original document to deal with the remaining property owned by the donor. Personal representatives are also allowed to retain the original grant in order to administer the remainder of a deceased’s estate.
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