4 June 2015

What is a possessory title?

Possessory title, still common in parts of Herefordshire, usually relates to pockets of land or garden, but it can also relate to the title of a whole property – it indicates that when it was applied for, the applicant didn’t have the right documents when registering the title to choose absolute title (the best form available).

There are a number of reasons why land may be registered with possessory title. It usually indicates that when registering a claim for ownership of land the applicant did not have the necessary documentation at the time of registration to satisfy the Land Registry’s requirements for absolute title which is the best form of title available.

Why?

There are often valid reasons for this – deeds may have been lost, stolen or destroyed. In the Second World War, for example, many documents were destroyed during bombing raids. Floods, fire, theft – you can imagine how belongings and important documents can be lost or destroyed. So, where deeds are lost or destroyed, the applicant must apply based on copies of documents (if available) and statutory declarations, setting out the basis of their application and the reason for any missing documents.

It may also be that the applicant’s claim is based on ‘squatters’ rights’ – possession of the land for more than 12 years in the case of unregistered land, or 10 years if registered.

Should I worry about buying a property like this?

It will never be entirely satisfactory for a buyer, because as you naturally want to know everything relating to the title. It’s not ideal for us, as solicitors, because we like to give advice based on all relevant information – with possessory title, we can’t do that.

What do I need to find out?

First – why the title is possessory? Have the deeds been lost or is the title based on squatters’ rights? Where the deeds are lost, and the seller has lived in the property for many years, can and will they provide a sworn statement providing details of their knowledge and the history of the property?

If title is based on squatters’ rights, there is a risk that the true owner could come forward with a better claim for possession, with deeds to prove they are the true owner.  This could leave you, if you have bought the property with no title to the property and no compensations for your loss, even if you had, for instance built a house on the land.

So it is vital that you take out an indemnity insurance policy to protect you and your mortgagee against such losses.

You can upgrade possessory title to absolute title when you have owned the land for 12 years or more, if no-one comes forward with a better claim to it.

Will registering my deeds help?

If you do not register the deeds to your property or land, they could be lost or destroyed – it would be wise to register them. We’re happy to advise on all of these steps; contact Jane Mayglothling at JMayglothling@hcrlaw.com or on 01432 349 703.

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About the Author
Jane Mayglothling, Senior Associate Solicitor
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