Guidelines 6 :Sale of pre-registration deeds by solicitors and others
This guideline has been compiled by N W Alcock, to
highlight an important aspect of the information given in Guidelines 5 -
Preservation of Pre-Registration Title Deeds - A Guide for Professionals.
Note that this guideline itself is based on the paper by Kevin Ward published
in Society of Archivists volume 16
No.1 (Spring 1995) pp.27-39.
Legal value of pre-registration deeds
Different opinions have been expressed on this point, ranging from the view that registration and the Land Registry’s indemnity cover all eventualities, to the view that establishing the existence of an error made by the Registry would be very difficult in the absence of the pre-registration deeds. The preservation of deeds might be particularly relevant in relation to disputes over boundaries and covenants. It has been suggested that the ideal solution to this dilemma is for the deeds to be placed on indefinite loan with a record office, where they can be examined if occasion arises, and where they can be used for historical research by those interested. The access now provided by the Land Registry to the register for individual properties and to any copy deeds they hold makes an argument on the grounds of privacy less significant than it might have been in the past.
Ownership and disposal of deeds
Deeds
belong to the owner of the land, and should in principle be handed over when
the land is sold; the process of registration does not affect the ownership of
the deeds. An owner if he wishes can discard or give away his deeds. Solicitors,
however, do not own the deeds they hold or originally acquired on behalf of a
client, unless these deeds have been ‘abandoned’, a process that Ward suggests
requires ‘clear and unequivocal
intention to abandon’. Thus, they have no right to dispose of deeds without the
permission of the client, even if the client is no longer easily traceable. Any
solicitor giving deeds away or selling them without the client’s permission is
therefore clearly in breach of his duty of care and could expect to be censured
by the Law Society and possibly be liable to a criminal charge of theft or
fraudulent conversion.
The
responsibility of a solicitor holding deeds can clearly best be met either by
returning them to the client, or by placing them on deposit, when they can be
recovered if necessary.
In the case
of the abandonment of deeds by a solicitor and their acquisition by a third
party, the same principle would hold. Since the solicitor does not own the
deeds, he cannot transfer title to them. His duties to the client might also be
considered to have been assigned to the third party. Thus, the deeds still
belong to the client(s) who should have a right to recover them, by a civil
action if necessary, even though they are held by the third party in good
faith. However, this right could presumably not be exercised by a third party
with a historical rather than legal interest. The most that can perhaps be done
by an interested party is to draw the seller’s or his agent’s attention to the
fact that he does not legally own the deeds and should not therefore be selling
them.
Depositing deeds
Deposit of
title deeds with a Local Authority Record Office can be easily arranged. The
British Records Association has produced a Guidelines
leaflet entitled Deposit your title deeds - and help preserve our
archival heritage. As well as including general guidance, this includes a
form of consent for completion by the client or the solicitor. If you need
advice in identifying the record office to which the deeds should be sent, or
have any other query, you can contact the British Records Association (details
below). The National Archives provides on its ARCHON (Archives
On Line) website a complete list of local authority record offices and archive
services and their addresses. The deeds should then be sent or delivered to the
relevant Record Office with the form of consent. It is recommended that the
solicitor should obtain the reference/accession number allocated to the documents
so that this can be placed with the Land or Charge Certificate.
BRA Contact details:
The British Records Association
c/o Finsbury Library
245 St John Street
London EC1V 4NB
Tel: 020 7833 0428
Fax: 020 7833 0416
E-mail: brrecass@btconnect.com
Copies of this Guideline may be obtained from the British Records Association, c/o Finsbury Library, 245 St John Street, London EC1V 4NB. it is issued free, but donations to help our work are greatly appreciated.