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Title and Due Diligence

All about the Title and Due Diligence

Examining the title

A Registered Title

Usually the title to the property will already be registered in the Land Register of Scotland. When this is the case the title will be contained in a Title Sheet which is a single document containing all the information about the property.

An Unregistered Title

On other occasions the title will not have been registered and its title will be still recorded in the General Register of Sasines.

This is the old Register for recording titles to properties and is the course of being replaced. There is nothing to be concerned about; it just means that for us as your solicitors, the conveyancing procedures will be a little different.

That said, sometimes there are problems which arise when purchasing such a property and because of that a new title plan may be required to reconcile the extent and location of the property and any Shared Property (such as a shared drying green) from the existing plan with the title deeds with the Ordnance Survey Map used by the Land Register of Scotland.

What does a registered title look like?

The title is divided into four sections:

Section A contains the description of the property and there is reference to the Title Plan. This section also details any parts for which there is Shared Ownership and any rights which benefit the property over neighbouring properties.

Section B contains details of the current owners and when they purchased the property.

Section C contains details of any Charges over the property ie Standard security for the mortgage.

Section D details the various deeds which contain the burdens and obligations affecting the property.

Reporting to you on the Title

We shall, once we have examined the title, send you our report which will summarise and explain to you the terms of the title. Our Report will cover:

  • The description of the property per the title;
  • Particularly if you are buying a flat or a property in a modern development, those parts of the tenement/building and/or development in which ownership is shared by you with the owners of the other flats in the tenement/building and/or development;
  • The rights that come with the property
  • The burdens which are imposed on the property

Problems that sometimes come up with the title

Thankfully in most cases there will not be any problems with title to the property but unfortunately problems do sometimes arise and when they do, they can take time to investigate and resolve.

By far the most common problem we encounter is as regards unregistered titles to former local authority houses and flats and the problem is usually that the areas of exclusive garden ground and shared drying green as shown on the original title plan do not coincide with the boundaries shown on the ordnance Survey Map and as a consequence part of this is already registered as owned by someone else.

What are typical burdens?

The type and nature of burdens on a property are varied but taking as an example a flat in a traditional building in Edinburgh the burdens can be roughly divided into three different sorts:

  • Restrictions on your use of the property
  • Your obligations to maintain your property and to share in the cost of the maintenance of the Shared Parts of the building
  • Rights that your neighbours have over your property

Restrictions in use

Typical restrictions in use include:

  • Using the property for residential purposes only and for occupation by one family only
  • Not to use the property for business or trading purposes
  • Sometimes there will be restrictions on pets

Typical maintenance obligations will include:

  • An obligation on you to maintain the property in a good state of repair and to keep the property insured
  • An obligation on you along with the owners of the other properties in the building to maintain the Shared Parts (such as the roof, front door, drying green etc.) and to pay your share of those costs

Typical rights over your property would include:

Your neighbours might have a right of access through your property to maintain in their property and/or the Shared Parts of the building or the utilities serving their property.

Due Diligence

The due diligence we carry out for you involves the following:

The Legal Report

The legal report is a report in the Land Register against the title to the property to make sure that the title is registered, what charges/securities exist over the property which have to be discharged and whether there are any Improvement Grants or Notices which need to be investigated further.

The legal report will also include personal searches against the seller and you, as the purchaser, to make sure that no one has been made bankrupt or is otherwise restricted from dealings with the property.

The Property Enquiry Certificate

The property enquiry certificate is a report on the information about the property kept by the Council and other government bodies.

The report should confirm that the property is connected to mains water and drainage and that the road and footpath are maintained by the local authority.

The report will also show if the property is located in a Conservation Area or is or is part of a Listed Building.

It will also show whether or not there are any Repairs Notices issued by the Council over the property or the tenement building. Where there are any such notices then we shall need to make further investigations for you.

The Coal Authority Report

If the property is in an area for which a coal report is required then we shall ask the seller’s solicitor to send us a coal report. The report is prepared by the Coal Authority and will show us whether or not there has been any coal mining in the vicinity of the property which would cause concern or require further investigation.

Alterations Documents

The Home Report will indicate the age of the property and if there have been any alterations made to the property.

Generally speaking, if the property is more than 20 years old and no alterations have been done, then no documents need be obtained.

However, if the property is less than 20 years old, we would normally need to see the Completion Certificate for the original build. (the Completion Certificate is the certificate issued by the Council confirming that the property was built in accordance with the approved Building Warrant and Drawings).

If the property has been altered within the past 20 years then we shall need to see and check that the Council did approve those alterations and issue a Completion Certificate. And if the property is part of a listed building, we would also need to make sure that Listed Building Consent was also granted.

Factored or Managed Properties

The Home Report will indicate whether or not the property is part of a factored Building or development.

Often in Edinburgh when you buy a flat in a traditional tenement building the building will not be factored or managed but in more modern flatted and housing developments there will be factors appointed to manage the building and/or development.

Usually in such buildings and developments the factors will be responsible for looking after the building/development and you will be charged for your share of the costs on in-going maintenance and repairs and also your share of the factor’s fees.

Also, it is often the case that the factors will arrange an insurance policy for the building/development which will include buildings insurance cover for the property (but not contents cover).

If there are factors appointed then we shall, as part of the due diligence, get information from the factors about the property, building and development which we shall report back to you. Quite often in factored buildings/developments the factors will require you, as the new property owner, to pay them a deposit.

What if the property is not in a factored building?

As mentioned above, many of the traditional tenements in Edinburgh are not factored. This means that there is no one appointed to ensure that there are annual checks made to the roof, to check the general fabric of the building or organise stair cleaning and a common insurance policy.

It is therefore left to the owners of the properties within the building to agree between themselves when repairs are required and who is to be appointed to carry out repairs and pay for them.

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