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Buying a home: the importance of making sure the seller is entitled to sell

If you are buying a house or a flat your conveyancer will need to carry out many checks and searches as part of the conveyancing process to make sure everything goes smoothly and that you get the keys to your dream home as quickly as possible.  One of the most important things they will need to do is to check that the seller is legally entitled to sell the property and that what they are shown as owning in the legal paperwork actually matches what you can see on the ground.

Kerry Dundas, residential property lawyer with Myers & Co Solicitors in Stoke-on-Trent looks at how property ownership is established, the problems that can sometimes arise where the legal documents and physical layout of the property do not marry up and the role of your conveyancer in resolving these problems to keep your property purchase on track.

Proving property ownership

The seller’s conveyancer should provide proof of property ownership as soon as the sale has been agreed and lawyers have been instructed to act.  However, it is the responsibility of your conveyancer to ensure that everything is in order.

Proof of ownership will be provided in one of two ways.  Where the property has been registered with Her Majesty’s Land Registry it will be provided via a copy of a digital register.  Where it is unregistered it will be provided via a series of documents, known as title deeds, which will track ownership of the property over the years to enable your conveyancer to check its lawful transfer to the seller.

When examining the register or title deeds your conveyancer will be looking out for anything which suggests that the seller does not have the right to sell the property. Typical things they will look out for include entries in the paperwork which suggest the seller does not own the property alone or which make it clear that someone else’s consent will be needed before the sale can proceed.

Your conveyancer will also be looking to make sure that the seller owns everything they say they do.  In particular, they will take care to ensure that the boundaries of the property on the ground accord with where the register or title deeds say the boundaries should be.  Sometimes discrepancies can arise for a whole host of reasons.

For instance, it may be that when the property was registered the land registry made a mistake when transferring a copy of the property’s plan onto its digital register which means that the boundary locations shown on the registered plan are wrong.  Alternatively, if the seller purchased the property from a developer, it may be that the boundaries of the property were changed in between the original site plan being prepared and the property being constructed but that these changes were not incorporated into the plan attached to the sale documents.

It may also be that the seller has physically moved their boundaries, by relocating fences or growing a hedge, in order to encompass land that does not officially belong to them but which they have treated as belonging to them for so many years that they now have the right to claim ownership over it.

The role of your conveyancer will be to get to the root of any problems and ensure appropriate steps are taken to resolve them before your purchase goes any further.

Resolving ownership issues

The steps that your conveyancer may suggest will vary depending on what the problem is.  In the context of boundary issues, for example, mistakes made by the land registry can often be resolved by notifying them of the problem and asking them to correct it.  Mistakes made by a developer may be resolved by asking them to enter a deed of rectification which retrospectively amends the original sale agreement and property transfer document.  And situations in which a seller has moved their boundaries to incorporate land that does not officially belong to them may in some cases be dealt with by obliging them to apply to register their ownership rights with the land registry and only agreeing to proceed with the purchase if the application is successful.

Your conveyancer may also suggest that the seller be asked to pay for an insurance policy to ensure that if any subsequent problems arise as to their ownership rights, you will be financially protected from any consequences.

If you are thinking about buying or selling a property and want to ensure things proceed smoothly, please contact Kerry Dundas on 01782 525 016 or email kerry.dundas@myerssolicitors.co.uk to see how we can help.

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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DDI: 01782 525016

E: kerry.dundas@myerssolicitors.co.uk

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