By Frances Traynor
23rd May 2018
Thu 26 Oct 2017 by Lorraine Imhoff
Conveyancing is usually defined as the work involved in transferring legal ownership (or title) of land from seller to buyer.
The point to notice is that it is the seller’s title that is transferred to the buyer, rather than the land itself.
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Since homes are built on land, the law generally considers them to be part of the land. A flat at the top of a tall block may seem to be distant from the land itself, but it still occupies a fixed airspace (as well as relying on the land and the remainder of the building for support) so it is still classed as land. However temporary or moveable buildings such as sheds or mobile homes are not.
There is an important distinction between buying a house and buying a physical object, whether it is an expensive car or a tin of baked beans. When you buy a physical object you ‘take delivery’ of it, whether you pick it up in the shop or have it delivered to your door.
But land, including any buildings on it, is fixed. You can’t ask the seller to deliver it to you, or pick it up and take it away. So title to land and buildings is transferred by means of a formal legal document, or deed.
Traditionally the document used to transfer land titles was called a ‘Conveyance’ because the seller conveyed title to the buyer. From this the whole process of property transfer has become known as Conveyancing.
In the past when a home was being sold, the buyer’s Conveyancing Solicitor would have to check that the seller owned it by looking through the seller’s title deeds. The idea was to check that the seller and his predecessors had clearly owned the property for a reasonable period – at one time it was necessary to go back sixty years, but that was gradually reduced to fifteen.
By looking through the old deeds, the Solicitor would check the chain of ownership in other words he would make sure that the property had properly changed hands through previous owners, leading up to the seller. The Solicitor would also check whether previous owners had mortgaged the property, and if so, would make sure that those mortgages had been repaid.
Although this system worked well for many centuries, it was cumbersome. Every time a property changed hands a lengthy Conveyance had to be written out.
When properties rarely changed hands this was not a problem, but as home ownership grew more common the system created unacceptable difficulties.
It also often gave rise to disputes, as deeds often only contained a verbal description of a property and did not include any plan, so it could be difficult to say who owned what.
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Various attempts were made to simplify Conveyancing and property law from the late 19th Century onwards. One of these was to set up a land registry, which would be responsible for maintaining a register of property titles and recording changes of ownership.
Although the system of title registration was originally rather cumbersome, it has been improved substantially and now provides a very useful service for homeowners. Title registers show who owns a property, as well as any mortgages and similar charges registered against it. The register also includes a plan, so that it is simple to see how much land a seller owns.
Once a title has been registered, it is only necessary to look at a copy of the current property title to see whether the seller owns the property, rather than having to go back through numerous old deeds. Sales are usually dealt with by a straightforward transfer form, and because the register is now computerised it is likely that land transactions will soon be dealt with electronically, avoiding the need for paper documents altogether.
At present most residential property titles are registered at the land registry, but not all. If a home has remained in one family’s ownership for a long time, they might not have needed to get the title registered.
When an unregistered property changes hands the title must now be registered – this will be done by the buyer’s Conveyancing Solicitor. In such cases the Solicitor will need to check the seller’s title in the old-fashioned way, and make sure that the land registry will accept the title.
It is possible to have two or more titles in respect of the same piece of land. The most common situation when this arises is when there is a lease. A piece of freehold land can be subject to one or more leases, and details of these will be noted on the register of the freehold title.
A lease is a legal agreement giving the lessee or tenant the right to exclusive occupation of a property for a fixed period of years – often 99 years but this may be considerably longer. At the end of the fixed period the property passes back to the landlord.
In England and Wales flats and apartments are normally owned on leasehold title. In some parts of the country leasehold houses are also quite common. It is also possible to have freehold flats, although these are rarely encountered.
Most residential property leases (other than short-term tenancy agreements) now have to be registered, and will be registered under a separate title. This makes it as straightforward to deal with the legal side of transferring a leasehold flat as with a freehold house (although it should be mentioned that if the property is a flat in a larger block it is usually necessary to have to obtain all sorts of information about building management from the landlord.)
There is considerably more to the work carried out by a Conveyancing Solicitor than just drawing up and completing the title transfer. This is because land and buildings usually come with a bundle of rights and liabilities. Land law is a complex subject, and other areas of law such as Probate and Family law are also often involved.
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