4 Common Property Title Issues

Most property transactions are completed without a title issue causing serious disruption. But when a problem is identified, especially by your conveyancer, your lender, or a search result, it can range from a minor administrative inconvenience to a fundamental obstacle. 

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Key Takeaways

• Most title issues are resolvable. The question is whether resolution is administrative, legal, or financial. Understanding which applies determines the realistic timeline and cost.
• The Land Registration Act 2002 governs how title is registered and protected in England and Wales. Issues with registered title are treated very differently from issues affecting unregistered land still governed by historic deeds.
• Title indemnity insurance protects against financial loss from a defect. It does not remove the defect from the title. Lenders accept insurance for some issues and not others, and the distinction matters before exchange.
• Restrictive covenants under the Law of Property Act 1925 are among the most commonly encountered title issues and the most frequently misunderstood. Old covenants do not expire through non-enforcement.
• A title issue identified at the review stage has time to be resolved. The same issue discovered at the exchange is a materially harder problem to address, which is why early title review is the most effective tool available.

What is a property title issue?

Legal title to a property in England and Wales is the sum of the rights, obligations, and encumbrances that attach to it. When you buy a property, you are not just buying the physical asset. You are acquiring its legal history: every covenant, easement, charge, and restriction ever recorded against it and, in some cases, those that have not been recorded but which nonetheless bind the land.

A title issue arises when something in that legal history is unclear, incomplete, inconsistent, or potentially adverse to the buyer’s interest. Your conveyancer’s title review, conducted as a standard part of the conveyancing process,  is designed to identify these issues before exchange, when there is still time to investigate and resolve them. Under the Land Registration Act 2002, the register is the authoritative record of title for registered land, but a significant proportion of English and Welsh property was registered relatively recently, and the historic deeds that underpin the register sometimes contain issues that were never resolved at the point of registration.

1. Restrictive covenants

Quick Facts

• Governing legislation: Law of Property Act 1925 (s.84); Land Registration Act 2002
• Typical resolution: Indemnity insurance, Upper Tribunal application, or deed of release
• Lender acceptance of insurance: Usually yes for old breached covenants with no active enforcer
• When it becomes serious: Where an identifiable beneficiary is likely to enforce, or planning was refused on covenant grounds.

A restrictive covenant is a promise made in a deed that restricts how land can be used, not to build on it, not to use it commercially, not to subdivide it. Unlike most contractual obligations, restrictive covenants under the Law of Property Act 1925 bind successors in title. When you buy the property, you acquire the covenant, whether you knew about it or not.

The most common scenario is a Victorian or Edwardian-era covenant that appears to restrict the property in a way that has been openly breached for decades, a garage built where the covenant said no structures, or a house converted into flats where single occupation was required. Buyers often assume that because the breach is old and no one has complained, the covenant is effectively unenforceable. This is legally incorrect. A covenant does not expire through non-enforcement. The question is whether the benefit, the right to enforce it, is still held by an identifiable party in a position to act on it.

Section 84 of the Law of Property Act 1925 gives the Upper Tribunal (Lands Chamber) jurisdiction to discharge or modify restrictive covenants on application, typically on grounds that the restriction is obsolete or impedes reasonable use of the land without practical benefit to those entitled to enforce it. This is the formal legal route, but it takes time and costs money. 

Resolution in practice

For covenants breached openly for 12 to 20 years with no enforcement action, an indemnity policy is typically obtainable quickly and accepted by most lenders. For covenants where the breach is recent, where planning was refused partly because of the covenant, or where an identifiable beneficiary has raised concerns, insurance is harder to obtain, and a deed of release or Upper Tribunal application is the appropriate route. Your conveyancer should assess the specific covenant before advising on which option applies.

2. Boundary and ownership discrepancies

Quick Facts

• Governing legislation: Land Registration Act 2002; Land Registration Rules 2003 (r.118); Limitation Act 1980
• Typical resolution: Indemnity insurance, boundary agreement, or formal determination under r.118
• Lender acceptance of insurance: Usually yes for historic minor encroachments with no active dispute
• When it becomes serious: Active dispute, adverse possession claim in progress, or material effect on the extent of the property. A property may rely on legal rights over neighbouring land to gain access to roads, pathways, parking areas, or shared facilities.

HM Land Registry title plans are drawn to a scale that does not allow precise boundary measurement. Under the general boundaries rule in the Land Registration Act 2002, the register shows approximate positions rather than exact legal lines, meaning discrepancies between the title plan and physical features are common, and not always problematic.

The title issues involving boundary and ownership discrepancies that arise fall into two broad categories. The first is a minor historical encroachment, a fence that has stood inside the registered boundary for thirty years, or a structure slightly over a boundary line without any formal agreement. These are common, frequently insurable, and often accepted by lenders with an appropriate indemnity policy.

The second category is more serious: an active dispute between neighbouring owners, an adverse possession application under the Land Registration Act 2002 (which requires 10 years of continuous occupation before an application can be made, after which the registered owner has two years to object), or a discrepancy that affects the extent of the property materially. These cannot be insured around and require resolution before exchange.

Rule 118 of the Land Registration Rules 2003 provides a mechanism for a formal boundary determination, a precise, legally binding line recorded on the register, requiring surveyor input, agreement between owners, or a court order. It is not commonly used but is the most definitive resolution available where a dispute cannot be resolved informally.

Resolution in practice

Historic minor encroachments with no active dispute are typically resolved by a title indemnity policy accepted by most mainstream lenders. Active disputes, adverse possession claims, and material title discrepancies require legal resolution before exchange; insurance is not appropriate for a known live claim. The same issue identified at title review, rather than at exchange, gives all parties time to negotiate, insure, or adjust the offer accordingly.

3. Rights of way, easements, and access issues

Quick Facts:

• Governing legislation: Law of Property Act 1925 (s.62); Prescription Act 1832; Land Registration Act 2002
• Typical resolution: Formal deed of easement, indemnity insurance, or court declaration
• Lender acceptance of insurance: Varies. Lenders are cautious where access itself is uncertain.
• When it becomes serious: Property access depends on a right of way not formally documented in the title. Restrictive covenants are legal obligations that limit how a property can be used.

Easements, rights one property has over another, such as a right of way, right to drainage, or right to light, are among the most complex elements of English land law. They can arise by express grant written into a deed, by implication under section 62 of the Law of Property Act 1925, or by long use under the Prescription Act 1832. An easement exercised for 20 years without interruption and without permission may be legally enforceable even if never formally recorded.

The most serious scenario for buyers is where access to the property, the driveway, the path to the front door, and the route from the road depends on crossing land not included in the title. If the right of way over that land is not formally documented and is not registered as an overriding interest under the Land Registration Act 2002, the buyer may be acquiring a property they cannot reliably access. Lenders treat this with particular caution because a property with uncertain access may be unmortgageable.

Section 62 of the Law of Property Act 1925 is a source of easements that regularly surprises both buyers and sellers. It automatically passes certain advantages of the land to a buyer on sale, including informal permissions previously granted to the seller personally. A neighbour’s informal arrangement allowing access across their garden can crystallise into a legal easement on sale under section 62, established in case law and confirmed by the Supreme Court in Wood v Waddingham.

Resolution in practice

Where property access depends on an informally exercised right of way not formally documented, the conveyancer should seek a deed of easement from the owner of the land being crossed before exchange. Where this is not achievable, a title indemnity policy may be available, but lenders vary considerably in their acceptance of insurance for access issues because the practical consequences of the right being challenged are potentially severe. This is one of the issues where early identification and early action produce materially better outcomes than a late discovery.

4. Missing title deeds and unregistered land

Quick Facts:

• Governing legislation: Land Registration Act 2002; Land Registration Rules 2003; Law of Property (Miscellaneous Provisions) Act 1994
• Typical resolution: Indemnity insurance, statutory declaration, or first registration application
• Lender acceptance of insurance: Usually yes for registered land with missing historic deeds
• When it becomes serious: Where land is unregistered and remaining deeds cannot establish a 15-year root of title. Although HM Land Registry records are generally reliable, mistakes can occur.

Before compulsory first registration was extended across England and Wales following the Land Registration Act 2002, many properties changed hands through physical title deeds rather than through a Land Registry register entry. Where a property has been registered for decades, the loss of historic deeds is a nuisance rather than a fundamental problem. Under the 2002 Act, the register is the authoritative record of title, and the absence of pre-registration deeds does not undermine that.

The more serious scenario is unregistered land property whose title is still established entirely through the chain of historic deeds. Where deeds are missing for unregistered land, the buyer’s conveyancer cannot establish a clear root of title going back the required 15 years under the Law of Property (Miscellaneous Provisions) Act 1994. The buyer is being asked to accept a title that cannot be fully verified. A statutory declaration from someone with long knowledge of the property’s occupation history may be required alongside insurance, and first registration at HM Land Registry following completion brings the title onto the register and provides the protection of the registered title system going forward.

Resolution in practice

For registered property with missing historic deeds, indemnity insurance is obtainable quickly and at low cost in most cases, and is accepted by mainstream lenders. For unregistered land, the conveyancer must assess whether a 15-year root of title can be established from available deeds, whether a statutory declaration fills the gap, and whether the lender will accept the combination. This is an area where the conveyancer’s experience with unregistered title makes a material difference.

How to assess any title issue: a decision framework

When a title issue is identified, the right response is a structured assessment, not alarm or dismissal. Four questions, answered in order, determine the realistic path forward.

At Muve, the title review is one of the first things we complete at instruction, not something that happens weeks into the transaction when everything else is already in motion. A title issue identified at the review stage has days or weeks of runway before exchange pressure builds. The same issue identified at exchange, when both parties have committed emotionally and financially, creates a very different conversation. We flag title issues early, set out the options clearly, including insurance, formal resolution, price negotiation, or withdrawal, and advise on which is realistic for the specific defect and the specific lender.

How Muve can help

Title issues are among the most common reasons residential transactions stall or collapse, not because the issues are inherently unresolvable, but because they are identified too late, assessed incorrectly, or presented to buyers without the context needed to make a rational decision. Here at Muve, the title review is conducted at instruction, issues are assessed against the specific lender’s requirements, and options are presented clearly: what the issue is, what the realistic resolution routes are, what each costs and how long it takes, and what the residual risk looks like after resolution. 

The most useful thing a conveyancer can do is tell them honestly whether it is resolvable within the transaction timeline. We do that at the outset, not at the exchange.

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