Practice Guide 2 – First registration of title where deeds have been lost or destroyed

Updated: May 2012

Update

This edition of the guide replaces the January 2012 edition. Section 3.4 has been updated to clarify the practice in respect of easements.

Scope of this guide

This guide gives information about Land Registry requirements concerning applications for first registration of land where the title deeds have been lost or destroyed. It is aimed at conveyancers; you should interpret references to ‘you’ accordingly. Land Registry staff will also refer to this guide. 

1 Introduction

You may apply for first registration of land if the title deeds have been lost or destroyed. Land Registry has special requirements and procedures for these applications, which are set out in this guide. Specific provisions regarding applications where title deeds have been lost or destroyed are contained in r.27, LRR 2003. If a possessory title is to be granted the requirements of s.9(5), LRA 2002, must be complied with.

You will need to give an account of the events that have resulted in the loss or destruction, which we will consider on its individual merit. However, we will probably grant only a possessory title where the evidence supplied does not establish those events and the history of the title beyond doubt. It is often more important to prove who held the deeds prior to their loss or destruction than to establish what they contained.

When the title deeds have been lost or destroyed we will sometimes ask a Land Registry surveyor to inspect the land before we complete the registration.

Many of these applications relate to situations where the deeds (or some of them) have been lost or destroyed while in the custody of (or in the post from) a conveyancer, bank or building society. However, we will also consider applications where the loss or destruction has occurred in other circumstances. These may include the theft of deeds, or their destruction in a natural disaster or as a result of enemy action.

1.1 Terms and abbreviations used

In this guide:

‘conveyancer’ means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003)

‘LRA 2002’ means the Land Registration Act 2002

‘LRR 2003’ means the Land Registration Rules 2003.

2 Making an application

You should apply for first registration in the usual way using forms FR1 and DL and enclosing the appropriate fee. If you are unsure of how to apply for first registration please refer to Practice Guide 1 – First registrations.

In place of lodging the normal documentary title you will need to:

• provide an account of the events that have led to the loss or destruction

• reconstruct the title as best you can

• supply evidence of identity of the applicant.

We recommend that you use form ST3 – Statement of truth in support of an application for registration of land based upon lost or destroyed title deeds to accompany forms FR1 and DL. This form sets out the framework for the information and evidence you will need to supply.

Use of form ST3 is not obligatory, and using it will not guarantee that your application is successful, but it will help you to make sure that none of the requirements set out in detail below has been overlooked.

However, any statement of truth that meets the requirements of r.215A, LRR 2003 will be acceptable, as will a statutory declaration. See section 6 Statement of truth.

As with any first registration application you have a duty to disclose certain types of overriding interest if they affect the land. Disclosure is particularly useful where title deeds have been lost or destroyed as interests, such as easements, that the estate owner knows affect the land may not be apparent from the reconstructed documentary title. Practice Guide 15 – Overriding interests and their disclosure contains information about which interests you should disclose and how to disclose them.

It is very important that Land Registry can identify the property you are applying to register on the Ordnance Survey map on receipt of the application (to comply with r.24(1)(a), LRR 2003). If we cannot do this we will reject the application. The reconstructed title may contain a plan capable of identifying the land on the Ordnance Survey map. If it does not and you think we may have difficulty identifying the property from a verbal description, you must supply a plan that will allow us to identify the land on the Ordnance Survey map. In general we will only regard verbal descriptions as suitable where:

• they relate to postal addresses (other than flats or buildings where a cellar projects beyond the ground level boundary – in these cases you must supply a plan, r.26(1), LRR 2003)

• the property is fully fenced and it is clear that all the curtilage forms part of the property.

2.1 Account of events leading to the loss or destruction

Land Registry requires a full, factual account of the events that have occurred leading to the loss or destruction of the deeds and other matters relevant to the title. The person with the best knowledge of the particular matters described must give the account.

It follows that the account you supply may well consist of a number of statutory declarations, statements of truth or certificates by:

• the applicant

• one or more conveyancers

• an official of a bank or building society.

For example, where the deeds have been lost while in the custody of a bank and a conveyancer recently examined the title, the conveyancer should give a certificate or declaration as to title and an official of the bank should account for the loss.

Your account will need to establish:

• who had possession of the deeds and where they were held when they were lost or destroyed

• why the person in possession had custody of the deeds, eg were they held for safekeeping or as security for money owing or under a lien

• when, where and how the loss or destruction occurred

• what steps have been taken to recover the deeds

• whether or not at the time of the loss the owner had created any mortgage, charge or lien on the property or deposited the deeds with any person, firm or body as security for money

• whether the applicant is in occupation or in receipt of the rent and profits; see section 2.2.6 Evidence of possession

• that the applicant is entitled to apply for registration as the legal estate is vested in them (or they have the right to require the legal estate to be vested in them); see section 2.2 Reconstruction of title.

The account should be normally in the form of a statutory declaration or statement of truth. However, we will accept a certificate from a conveyancer or suitably authorised official of a bank or building society, giving an account of the loss or destruction of deeds that were in their custody. The conveyancer must sign the certificate personally, not in the name of a firm.

2.2 Reconstruction of title

To support the account of the loss or destruction of the deeds you must attempt to reconstruct the title to show how it has devolved to the applicant. The nature and quality of the secondary evidence will vary but you must submit the best evidence you can. It is impossible to cover every situation in this guide but the following suggestions may help you when preparing this type of application.

2.2.1 Contents of deeds and execution

The best possible secondary evidence of title is a certified copy or completed draft of the conveyance, transfer or assignment to the applicant (and any subsisting mortgage) coupled with certified copies, completed drafts or examined abstracts of the deeds forming the earlier title. Wherever possible, copies should be certified as true copies and abstracts should be marked as examined by a conveyancer.

The copy deeds should be supported by a statutory declaration, statement of truth or certificate, as mentioned in section 2.1 Account of events leading to the loss or destruction, establishing as far as possible:

• that the title has been investigated in the normal way

• the source from which the copy deeds have been obtained

• that the conveyance, transfer or assignment to the applicant (and any mortgage) were properly executed and adequately stamped.

If all copies, drafts and abstracts have also been lost, in some circumstances, such as where the property formed part of a larger estate, you may be able to obtain replacements from the conveyancer who acted for the applicant’s vendor.

A significantly lesser quality of evidence of custody and title may be shown by:

• a receipted schedule of deeds (if its source and origin are confirmed by statutory declaration, statement of truth or certificate)

• copies of estate duty or inheritance tax declarations, receipts for rates and taxes, fire insurance policies and receipts for insurance premiums.

2.2.2 Mortgaged property

If a mortgagee was holding the deeds when they were lost or destroyed, a statutory declaration, statement of truth or certificate by the conveyancer who investigated title before the lender made the advance constitutes useful confirmatory evidence of the applicant’s title.

Where the deeds have been lost or destroyed while in the custody of a mortgagee the account of events must either establish that the mortgage is subsisting or give details of its repayment.

2.2.3 Unmortgaged property

The account of events must make it clear whether or not the property was subject to a mortgage when the deeds were lost or destroyed. One or more of the supporting statutory declarations or statements of truth forming the account should state explicitly that at the time of the loss or destruction the owner had not created any mortgage, charge or lien on the property and had not deposited any of the title deeds with any person, firm or body as security for money.

2.2.4 Leasehold property

If an original lease has been lost or destroyed it is usually possible to obtain a certified copy of the counterpart lease.

Most leases contain provisions requiring the registration of assignments with the lessor’s conveyancer and/or requiring the grant of a licence to assign the lease. If this is the case, the lessor’s conveyancer may be able to give details of the record of documents produced by successive assignees and/or licences to assign that have been granted. In any event, the present reversioner (or their agent) will know who has paid the rent during the current period of ownership.

2.2.5 The former deeds registries for Middlesex and Yorkshire

If the land is situated within the area formerly covered by one of these deeds registries, a statutory declaration, statement of truth or certificate by a conveyancer who has examined the memorials of deeds may establish, or help to establish, a chain of title.

The deeds registries have now closed. You can find details of how to contact the bodies holding these records in section 4 Contact details for former county deeds registries.

NB: York did not fall within the areas formerly covered by the Yorkshire Deeds Registries.

2.2.6 Evidence of possession

The account of events should normally establish that the applicant is either in actual occupation of the whole of the land or in receipt of the rent and profits from it without any adverse claim having been made. This information is essential where a possessory title is being granted (s.9(5)(a), LRA 2002). In other cases it will help to satisfy us that the applicant is entitled to apply for registration.

If the applicant is in receipt of the rent and profits please supply further evidence such as copies of the rent book(s) or receipts.

2.3 Evidence of identity

Land Registry may require evidence of the identity of the applicants for first registration when they allege that the title deeds have been lost or destroyed. This evidence will help to demonstrate that the applicant holds the legal estate or is entitled to apply for registration. It is also an important safeguard against the risk of fraud.

2.3.1 When evidence of identity is not required

Land Registry does not generally require evidence of identity where the application is lodged either by:

• a conveyancer who is applying for registration because the title deeds were lost while in their custody

• a major mortgage lender who is applying for registration because the title deeds were being held as security for the lender’s mortgage and were lost while in their custody

• a duly authorised official on behalf of a local authority, government department or nationally well known body which is applying for registration because title deeds relating to their land, or to land on which they hold a mortgage, were lost while in their custody.

However, in all cases Land Registry reserves the right to carry out identity checks and additional verification procedures with respect to identity.

We do not require evidence of the identity of the receiver or liquidator of a company. You must, however, supply the following.

• Evidence of the appointment of the receiver or liquidator.

• Where a receiver is appointed under a mortgage or charge, a certified copy of the mortgage or charge.

In all other instances we must have evidence of identity of the applicant for first registration where the title deeds have been lost or destroyed.

2.3.2 When confirmation of identity is required

Confirmation of identity will be required in all other cases not referred to in section 2.3.1 When evidence of identity is not required. Where the applicants are not represented by a conveyancer (for example a solicitor or licensed conveyancer), they will need to lodge evidence of identity form ID1 (individuals) or form ID2 (companies and corporations). For further details see either:

• Practice Guide 67 – Evidence of identity – conveyancers, or
• Public Guide 20 – Evidence of identity – non-conveyancers.

2.4 Production of lost deeds if found

You must enclose with the application an undertaking to send any lost deeds that are subsequently found to Land Registry. If further evidence of title, whether favourable or not to the registered proprietor, comes to light after the application has been completed it should be sent to us along with a completed form UT1 if upgrading of the title is required.

3 Register entries

In the past we often made protective register entries for restrictive covenants and rentcharges that may affect the property, and we will continue to do so. We did not make protective entries for easements as they were protected as overriding interests; see section 3.4 Easements.

3.1 Undisclosed restrictive covenants

If you have been unable to reconstruct the title completely, missing deeds may contain or refer to restrictive covenants, which may not be otherwise apparent from the application. For example, it is particularly difficult to discover the existence of covenants entered into by a vendor, such as brewery covenants. Where the reconstructed title is incomplete we will make a protective entry in the Charges Register. The entry will state that the land is subject to such restrictive covenants as may have been imposed thereon before the date of first registration, so far as such covenants are subsisting and are capable of being enforced.

We will make this entry because the person entitled to the benefit of the covenants may still be able to enforce them. If this occurred or the register was rectified at a later date to include the covenants, the registered proprietor would prima facie have a claim for indemnity. On the other hand, the person entitled to the benefit of the covenants may have a claim for indemnity if we refuse to rectify the register.

If you have been able to fully reconstruct the title and provide acceptable copies of all deeds, we will examine the title in the normal way and make any appropriate entries for restrictive covenants. In these cases we will not make a protective entry unless there is some other reason to do so, such as where the root of title is a mortgage or a specific device which is unlikely to refer to restrictive covenants.

3.2 Unverified copies of restrictive covenants

You may only be able to produce unverified copies of restrictive covenants. Under the provisions of paragraph 1 of Schedule 8, LRA 2002 anyone who suffers loss as a result of a rectification of the register, or a mistake the correction of which would involve rectification of the register, can claim indemnity. If we have to rectify the register because the particulars of restrictive covenants that we have included in the register are incorrect or incomplete it could lead to such a claim.

Land Registry frequently receives applications for first registration containing unexamined particulars of restrictive covenants. If these covenants are included in the register we are in effect guaranteeing their accuracy. We will only do this where the risk of the abstract or copy being defective is so slight that it can safely be treated as sound evidence of the terms of the deed.

We will treat each case on its merits. However, in general:

• printed abstracts are normally regarded as satisfactory

• a typed abstract may be accepted if it appears to be complete and carefully prepared, particularly when the area of land affected by the covenants is considerable (so that knowledge of the covenants is widespread).

We will also consider the following.

• Where the covenants are set out in a copy of a later deed, whether or not that copy is marked as examined.

• The nature of the covenants themselves.

• The value and situation of the land.

In the case of old Middlesex or Yorkshire deeds, it may be possible to obtain corroborative evidence from the records of the old deeds registries. (See section 2.2.5 The former deeds registries for Middlesex and Yorkshire.)

If we are unable to guarantee the accuracy of unverified particulars of restrictive covenants, we will make an entry to the effect that the relevant deed contained restrictive covenants but neither the original instrument nor a certified copy or an examined abstract thereof was produced on first registration.

However, we have agreed with the Law Society to make a non-guaranteed entry in the following form when a solicitor specifically requests it:

“A [Conveyance] of the land in this title [and other land] dated _______________ made between _________________ contains restrictive covenants but no verified particulars of them were produced on first registration. The details set out in the schedule of restrictive covenants hereto of what purport to be the said covenants were provided by _____________, acting for a vendor in [state year]”.

The agreement with the Law Society only covers applications lodged by solicitors. If you wish us to make this entry you will need to tell us in a covering letter.

3.3 Undisclosed rentcharges

We may make a protective entry on the register when the land falls within an area where rentcharges are common. The entry will be made in similar circumstances to that for the protective entry in respect of restrictive covenants mentioned in section 3.1 Undisclosed restrictive covenants.

3.4 Easements

If you or the applicants are aware that the land you are seeking to register is subject to a legal easement that is not mentioned in the title that you have reconstructed, you must disclose it as an overriding interest on an accompanying form DI (r.28, LRR 2003). We will make an entry for any easements that adversely affect the title that are either:

• revealed in the reconstructed title

• disclosed as overriding interests in the application.

The entry in the register of the burden of an easement revealed as an overriding interest on first registration ensures that a later purchaser will take subject to that easement and in the case of a legal easement avoids the possibility of the exception in paragraph 3(1) of Schedule 3, LRA 2002 applying.

We will enter the benefit of legal easements only if you have shown satisfactory evidence of title to them (r.33, LRR 2003).

4 Contact details for former county deeds registries

4.1 County of Middlesex

Despite the closing of the Middlesex Deeds Registry, you may inspect the registers of copy memorials 1709 to 1938 with covering indices at the London Metropolitan Archives, 40 Northampton Road, London EC1R 0HB. They are open Monday to Friday 9.30am to 4.45pm with an extension until 7.30pm on Tuesdays and Thursdays, and also some Saturday mornings. For further information, telephone 020 7332 3820.

4.2 East Riding of Yorkshire

The records of the former East Riding Registry of Deeds, including memorials and indices covering the period 1708 to 1974, are now in the custody of the East Riding of Yorkshire Archives Service, County Hall, Champney Road, Beverley, East Yorkshire HU17 9BA. You may inspect the archive upon prior application to the County Archivist (telephone 01482 392790). Please state that you wish to inspect deeds when making an appointment.

4.3 North Riding of Yorkshire

The North Riding Register of Deeds, which contains copies and memorials of deeds made between 1736 and 1970, is now in the custody of the North Yorkshire County Record Office. It may be inspected at pre-arranged times during normal office hours, if prior application is made to the County Archivist, whose address for correspondence is County Hall, Northallerton, North Yorkshire DL7 8AF. For further information, telephone 01609 777585.

4.4 West Riding of Yorkshire

The West Riding Registry of Deeds, which contains copies and memorials of deeds made between 1704 and 1970, is now in the custody of West Yorkshire Archive Service. Appointments to view deeds are recommended because its searchrooms can get very busy. Please contact West Yorkshire Archive Service, Wakefield, Registry of Deeds, Newstead Road, Wakefield WF1 2DE, telephone 01924 305980, email wakefield@wyjs.org.uk

Opening hours are Monday 9.30am to 8pm, Tuesday and Thursday 9.30pm to 5pm and the second Saturday in the month 9.30am to 1pm.

5 Availability of forms

Forms ST3, ID1 and ID2 are available from law stationers in the usual way. You may also download them from our website.

6 Statement of truth

A statement of truth is a method of providing evidence in support of an application. As a result of changes made by the Land Registration (Amendment) Rules 2008, it can be accepted for land registration purposes instead of a statutory declaration.

Its adoption by Land Registry follows the precedent set by the civil courts in accepting a statement of truth as evidence in place of an affidavit or statutory declaration.

6.1 Requirements

For land registration purposes, a statement of truth is defined as follows.

• It is made by an individual in writing.

• It must be signed by the person who makes it (unless they cannot sign – see section 6.3 Statement of truth made by an individual who is unable to sign it).

• It need not be sworn or witnessed.

• It must contain a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true.’

• If a conveyancer makes the statement or signs it on someone’s behalf, the conveyancer must sign in their own name and state their capacity – see section 6.4 Signature by a conveyancer.

6.2 Statement of truth signed by an individual who is unable to read

Where a statement of truth is to be signed by an individual who is unable to read, it must:

• be signed in the presence of a conveyancer, and

• contain a certificate made and signed by that conveyancer in the following form.

‘I [name and address of conveyancer] certify that I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who signed it or made [his] or [her] mark in my presence having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

6.3 Statement of truth made by an individual who is unable to sign it

Where a statement of truth is to be made by an individual who is unable to sign it, it must:

• state that individual’s full name

• be signed by a conveyancer at the direction and on behalf of that individual, and

• contain a certificate made and signed by that conveyancer in the following form.

‘I [name and address of conveyancer] certify that [the person making this statement of truth has read it in my presence, approved its content as accurate and directed me to sign it on [his] or [her] behalf] or [I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who directed me to sign it on [his] or [her] behalf] having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.’

6.4 Signature by a conveyancer

Where a statement of truth is made by a conveyancer, or a conveyancer makes and signs a certificate on behalf of someone who has made a statement but is unable to read or sign it the conveyancer must:

• sign in their own name and not that of their firm or employer, and

• state the capacity in which they sign and where appropriate the name of their firm or employer.

7 Enquiries and comments

If you have a particular concern that is not covered by this guide, please contact Land Registry in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Trafalgar House
1 Bedford Park
Croydon
CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and all our other guides free of charge from Customer Support (see Contact details) or you can download them in English or Welsh from our website.

Remember

• Can we identify the land on the Ordnance Survey map?

• Does the account of events in the statutory declarations or certificates adequately account for the loss or destruction of the deeds?

• Has the applicant’s title to the land been established?

• Has the title been reconstructed as far as possible?

• Have any disclosable overriding interests that you or your client are aware of and that are not apparent from the reconstructed title been disclosed using form DI?

• Is a properly completed form ID1 (or ID2) enclosed for each applicant?

• Have you enclosed the correct fee (see the current Land Registration Fee Order)?

• Have you signed form FR1?

• Important: please check clerical details in all forms and deeds (especially charges and mortgages) and pay particular attention to all dates, property descriptions and full names of parties, especially where they appear in more than one deed.

Please note that Land Registry may be unable to process applications that are incomplete or defective and your application will risk losing its priority if we have to return it to you – see Practice Guide 49 – Return and rejection of applications for registration for more information.