Problems found after you bought · Possessory title
When I bought this property, I didn’t know Possessory title could hold up a sale or a remortgage. Now I’m stuck.
Would you have bought the property if you had known?
If you had known the title was possessory before you committed, and understood the problems it could cause when you later came to sell or remortgage, would it have changed your decision?
- Would you have paid the same price?
- Would you have wanted it investigated first?
- Would you have walked away?
If knowing about the problem might have changed what you did, the next question is obvious.
Did you receive the right advice when you bought?
You may not know the answer yet. But if nobody explained the problem, or you are now questioning what you were told at the time, that is worth looking at.
You don’t need to know whether anyone was at fault. Tell us what happened and when you bought. We’ll talk it through with you.
Why possessory title can hold up a sale or remortgage
When land is registered it is given a class of title. Most homes have absolute title, the strongest class. Possessory title is weaker: it records that the property is yours, but does not guarantee the position before the date it was registered, so an older claim by someone else is not ruled out. Common reasons include lost or destroyed title deeds, or registration based on long-standing possession rather than a complete documentary title.
Where the earlier deeds are missing, the uncertainty may extend beyond ownership. Those documents may have contained restrictive covenants, rentcharges or details of rights affecting the land. The register may carry a protective entry without revealing the complete wording. A buyer or lender may therefore want to understand the ownership risk and what else may be missing.
A sale or remortgage can be held up even though nothing has gone wrong. On a sale, the buyer’s solicitor will need to consider the class of title when advising the buyer and complying with any applicable lender requirements. On a remortgage, your conveyancer will consider the proposed lender’s requirements. The relevant questions include why the title is possessory, how long it has been registered, and what evidence exists of undisturbed occupation. Requirements differ between lenders, so the outcome can depend on the lender as well as what the register says.
How the problem usually surfaces
The register says possessory
Your buyer’s solicitor reads the class of title and raises it. The class is identified on the register, and may first attract attention on a sale or remortgage.
The old deeds cannot be found
The title was registered without a documented chain of ownership. Those deeds may also have held covenants, rentcharges or rights, so what is missing may go beyond ownership.
Land added over the years
A strip of garden, a driveway or a piece of ground enclosed long ago was registered on the basis of occupation rather than a deed.
A remortgage title check
Nothing at the property has changed. The register is simply examined again, against a different lender’s written requirements.
A neighbour raises a claim
Someone disputes the boundary or says part of the land is theirs, and the limits of a possessory title matter for the first time.
What you can do about it now
Ask your conveyancer to establish why the title is possessory, what the register says, and how long it has been in that class.
Contacting a potential claimant may affect whether indemnity insurance remains available, so take advice. Routes include evidence of undisturbed occupation, an upgrade application, or an indemnity policy. Which suits depends on the circumstances and the lender’s requirements.
Possessory title does not improve automatically. If it has been registered for 12 years, an upgrade application may be possible, provided the relevant conditions are satisfied and no adverse claim has been made. An earlier application may be possible if further evidence emerges. Your conveyancer can check the registration date, the reason it was granted and whether an application is available.
Any indemnity policy covers only the risks and losses defined in its terms. It does not upgrade the title, reconstruct the missing deeds or resolve uncertainty about rights and restrictions those deeds may have contained, and is not automatically sufficient for every lender.
If you are selling, your conveyancer can ask the buyer’s solicitor what remains unresolved and whether it arises from the buyer’s lender’s requirements. If you are remortgaging, your conveyancer can check your proposed lender’s requirements directly.
What happened when you bought?
A class of title does not change by itself. If the property was already registered with possessory title when you bought, the register would have recorded that class. The questions are what the register showed then, whether the reason for the class was investigated, what you were told and whether any of it was reflected in the price you paid. It also matters whether the title was already eligible for an upgrade when you bought, whether an application was considered and, if not then available, whether the future route was explained.
Several records from the time may matter, and some may survive. The register as it stood shows the class of title and the entries with it. There may be statutory declarations about occupation, prepared when the title was registered. The seller’s information form may record what was known about boundaries and deeds. There may already be a policy from your purchase, worth finding before paying for another. Your report on title may show what you were told, and the conveyancing file draws those strands together. The lender’s historical written instructions may also be difficult to recover, because they are revised regularly and superseded versions disappear from public view.
Was this property really mortgageable when you bought?
Getting a mortgage when you bought does not necessarily tell you how readily mortgageable the property was across the wider market. There are two historical questions worth asking.
What did your own lender’s written requirements say about possessory title when you bought? And what express requirements did other lenders have recorded at the same time?
Lenders’ written requirements were not necessarily uniform, and their wording changed over time. That means both which lender you used and when you bought can matter.
Lenders set out in writing what they expect a conveyancer to do about particular features of a property. Those instructions are revised regularly, and superseded versions drop out of public view, which can make a question as simple as what was my conveyancer told about possessory title in the year I bought? surprisingly difficult to answer from the sources available today. Lexsure has retained historical lender-specific conveyancing requirements since April 2007, so where the records permit they can help reconstruct what your lender’s requirements said at the time and how that compared with the wider lending market.
The wider picture
Historical lender requirements can help us understand how mortgageable the property was when you bought. The conveyancing file and the advice given to you also matter.
Lexsure holds historical Report on Title material: the reports conveyancers sent to homebuyers, going back years. That material shows the kinds of class of title issues that were being addressed when firms reported to buyers, and it is a second and separate record from what lenders required.
Why possessory title was granted
Was the background established, whether lost or destroyed deeds or a claim based on possession, and was the seller’s solicitor asked about it?
Whether an upgrade was explored
Had an application to upgrade the class of title ever been made, and were you told whether an upgrade was available to you?
Whether indemnity insurance was obtained
Was possessory title indemnity insurance put in place, and were you told whether it extended to you and to your lender?
What it meant for value and selling
Were you told that a possessory title is weaker than absolute title, and what that can mean for value and for a later sale?
These are examples of issues addressed in historical conveyancing material, not a checklist of what every purchaser should have been told. What mattered in an individual purchase depended on the circumstances and on what was known at the time.
So even if your mortgage completed, or there is nothing unusual in your lender’s historical requirements, it can still be worth talking to us about what happened.
Could this problem have been seen coming?
The relevant starting point is what was known, or could reasonably have been identified, when you bought.
What did the register show? What evidence of occupation was produced, or asked for? What was in the conveyancing file? What were mortgage lenders requiring at the time? What kinds of possessory title issues were conveyancing firms addressing with homebuyers? And what were you actually told?
Taken together, that can help build a picture of whether the problem you are facing today was already something that should have been considered when you bought.
Did you receive the right advice?
What the historical evidence can tell us
Where the relevant lender and period are covered, we may be able to establish what that lender’s conveyancing requirements said when you bought, and how that compared with the wider record at the time.
- That does not by itself establish that anyone was negligent, or that you have a claim. Those questions need the original file and legal advice.
- The absence of express wording does not establish that the lender accepted the issue.
- What your conveyancer had to tell your lender and what they had to tell you are different questions, and the second depends on the retainer and the circumstances.
Time limits apply, and in some cases the date on which you first knew enough about the problem matters as well as the date you bought, which is why we ask about both. Our full methodology, including how we treat gaps in the record, is set out in the archive and its limits. Where a solicitor later needs formal historical evidence, Lexsure can provide source-evidenced historical lender information.
Sources and review
This page is about possessory title as a class of registered title. Guidance here about the present problem is general information. It is not legal advice about your property.
Information about upgrading possessory title, including the 12-year eligibility period, has been checked against HM Land Registry Practice Guide 42. Guidance concerning registration where deeds are missing has been checked against HM Land Registry Practice Guide 2.
Historical lender information is drawn from Lexsure’s archive of lender-specific conveyancing requirements, maintained since April 2007. Figures on this page state the population they are drawn from.
What the archive holds
Counts cover substantive changes to lenders' specific requirements in the UK Finance Handbook and elsewhere, covering issues such as possessory title. That requirements changed is a fact about the market, not about your purchase.