While property magazines may be full of advice about the importance of décor and home furnishings to assist selling your home, it is also a good idea to review the title to your property before putting your home on the market. This will assist in ironing out any potential defects which may delay your sale.
Erin Denness, a Partner and Head of the Residential Property team at Hughes Solicitors in Heathfield, outlines common problems that you may find and explains how you can go about resolving these issues.
Most homes are registered with the Land Registry, each property is given a unique Title Number (registration number). The register contains information about your property including the property address, whether it is a freehold or a leasehold property and the details of the registered owner. Common issues that can delay or even scupper a sale include:
- restrictions or notices registered against the property;
- lease defects;
- title classification not upgraded;
- property not registered;
- lost title deeds;
- restrictive covenants;
- easements;
- boundary disputes; or
- lack of Planning Permission or Building Regulation approval.
Restrictions and notices
You may find that there are Notices or Restrictions noted in the register. These usually prevent the sale of the property without certain actions being taken or consents being obtained.
The most common restriction is a mortgage lender’s restriction which prevents the sale or transfer of the property without the lender’s consent. If you are selling, your mortgage will be redeemed on completion so the restriction needs no other attention.
Another common restriction is to prevent the sale of the property without the consent of a person or organisation. This usually because buyer will need to covenant (promise) with the person or organisation, to comply with certain matters affecting the property; for example to contribute to the maintenance of a shared driveway. Your buyer will need to sign a Deed of Covenant to effect the promise. As the seller, you will be responsible for the cost and for ensuring that your buyer signs the Deed. It is a good idea to make contact with the person or organisation and ascertain their costs and procedure for issuing the Deed of Covenant so that you can be prepared once a buyer is found.
Lease defects
If your property is a leasehold property the lease could be many years old.
If you have less than 80 years remaining of your lease term it is likely that a buyer will require the lease to be extended. You will need to approach your landlord for permission to extend the term of your lease. You landlord is likely to make a charge for this and the process can be very long. This is a process that requires specialised legal advice so it is vital that you discuss this with your solicitor well in advance of selling your property.
It is also sensible to ask your solicitor to review the provisions of your lease. If any clauses are defective or require alteration to bring them into line with current legislation or regulations, this should be remedied before the property is put on the market.
Title classification
The Land Registry also classifies a property’s title. ‘Absolute’ title is the best class of title available and is the class of title that is preferable when selling your property.. However you may have been granted ‘possessory’ title to part of your property if you have claimed title by adverse possession. Your property may also have ‘qualified’ title if there is a defect in the title.
It is possible to upgrade your class of title if certain criteria are met. You should talk to your solicitor to see if an upgrade is possible which will assist with the smooth progress of your sale. If an upgrade is not possible action can be taken to mitigate a less than perfect class of title.
Unregistered land
Most property in England and Wales is now registered at the Land Registry. However if you have owned your property for a significant period of time your property may not be registered.
It is often the case that a buyer’s solicitor will ask for the property to be registered before the sale can proceed. This will inevitably delay the conveyancing. If your property is unregistered it is advisableto ask your solicitor to apply to the Land Registry for first registration before you embark on the sale of your property.
Lost title deeds
If your property is not registered at the Land Registry, it is vital that you have your title deeds to enable you to prove your ownership.
If you cannot find them, your solicitor will have to gather together all the possible evidence to prove your ownership and then apply to the Land Registry for registration of your title. This can be a long and painstaking process and it is unlikely that a sale can proceed until the registration process is complete.
If you know that your property is not registered and that your deeds have been lost speak to your solicitor about registering your property well before your property goes on the market.
Restrictive covenants
As well as notices and restrictions, your property title may contain restrictive covenants which restrict the way your property may be used.
There may, for example, be a covenant preventing you from building an extension to your home without the specific consent of a person or organisation. If you have breached this covenant, your buyer is likely to require protection against the breach as restrictive covenants pass with the land. This may cause delay to your sale or even put off buyers so, before you put your property on the market or take any action in respect of the breached covenant, it is vital that you speak to your solicitor to find the most efficient solution to remedy this issue. This could take the form of indemnity insurance or possibly proving that the covenant is no longer enforceable. .
Easements
Easements are rights that either affect or benefit your property such as a right of way or a right for drains, pipes or wires to pass through your property or a neighbouring property.
It may be the case that or that you need to cross someone else’s land in order to get to your property. The right of way should be recorded in the register. It may be that an easement or right has arisen through many years of use or as a result of an informal arrangement. The easement will need to be formalised and registered to be acceptable to your buyer.
It is advisable to discuss any such issues with your solicitor before the property is marketed so that they can be resolved.
Boundary disputes
Boundary disputes with neighbours can be a significant red flag to a buyer. You will need to disclose any disputes as part of the conveyancing process.
If there is any discrepancy or dispute with the boundaries to your property it is advisable to try to have these matters resolved through mediation or negotiation before the property goes on the market.
Planning and building regulations
Any buyer will want to be certain that any changes you or previous owners have made to the property were done with the required planning permission and in accordance with building regulations. Without these consents the local authority could take enforcement action.
It is sensible to ensure that you have all of the required paperwork to prove that works have been carried out in compliance with the regulations. If you do not have the necessary documentation, ask your solicitor about the possible remedies that are available. .
How we can help
As illustrated above, there are many issues that are worth considering and resolving before you put your property on the market to ensure a smooth sale.
Few of the issues are insurmountable with the help of our experienced team of solicitors.
Before you place your home on the market, our team of Residential Property solicitors can review your property’s title and take any required action to ensure that your sale proceeds as smoothly as possible.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.