You bought a new-build house from an established developer. Two years later, you try to sell and discover that the property has possessory title. You do not remember anyone explaining this when you bought.
The developer says the solicitors were informed. Your original conveyancer is investigating. Meanwhile, your transfer document refers to “full title guarantee”, leaving you wondering how that can be consistent with possessory title.
The first step is to separate the registered class of title, the promises given in the transfer and the advice you received. They are connected, but they are not the same thing.
The owner’s account: a title problem discovered during a sale
In an account supplied for this article, an owner described discovering possessory title while selling a house bought new approximately two years earlier.
The owner reported that more than 50 other residents were also unaware of the position. According to the account, the developer said the information had been supplied to the purchasers’ solicitors, with around 24 different firms involved.
The owner also said paperwork appeared to show an unsuccessful application for absolute title in 2019. Their original conveyancer was investigating what had happened.
This account has not been independently verified. We have not examined the title registers, purchase files, transfer or alleged upgrade application. It does not establish that the developer concealed information or that any solicitor was negligent.
Nevertheless, it identifies questions that deserve a documented answer when a title issue comes as a surprise during a later sale.
A new house does not necessarily have absolute title
The age and condition of the building do not determine the registered class of title to the land.
A recently constructed house can stand on land with possessory title. A building warranty, planning permission or Building Regulations approval addresses different matters and does not itself establish absolute ownership title.
HM Land Registry explains that possessory title may arise where ownership is claimed through adverse possession or documentary evidence of title cannot be produced. The class is stated at the beginning of the proprietorship register.
Check precisely which land is affected. It may be the whole plot, a separate garden parcel, a driveway or land providing access or services.
Does “full title guarantee” on the TP1 mean absolute title?
No. Full title guarantee is not the same as absolute registered title.
Form TP1 is used to transfer part of a registered title, commonly when an individual plot is transferred out of a developer’s larger title.
Its title-guarantee panel concerns promises given by the transferor. Full title guarantee generally implies statutory covenants about the right to dispose of the property and aspects of the title, subject to the legislation and any modifications or exclusions in the documents.
The registered class of title is a separate matter recorded by HM Land Registry. Selecting full title guarantee does not itself upgrade possessory title to absolute title.
The standard TP1 choices are “full title guarantee” and “limited title guarantee”. There is no standard alternative called “title with conditions”. It would therefore be wrong to conclude that possessory title automatically required the other box to be selected.
The complete contract and transfer still need examination. A title guarantee may have legal significance, but the tick alone does not establish a breach, misrepresentation or obligation to deliver absolute title.
Did the developer’s solicitors certify the title by signing?
First establish who actually signed the document and in what capacity.
A TP1 is ordinarily executed by the transferor, with execution by the buyer where required. Preparing or approving the deed does not mean that the developer’s solicitors personally gave the developer’s title guarantee to the purchaser.
A solicitor may have signed in another capacity, for example as an authorised attorney or witness. The execution wording must be checked before drawing conclusions.
Responsibility for the transaction cannot be determined simply by identifying who prepared the form. The relevant questions include what was represented, what was disclosed, what was promised and what the buyer’s own adviser explained.
“All the solicitors were told” needs supporting evidence
If the developer says every purchaser’s solicitor received the information, ask for the document containing the disclosure, the date it was supplied and any related correspondence.
Then compare that evidence with your own purchase file.
- Did the title supplied before exchange show possessory title?
- Was the affected land clearly identified?
- Did the contract expressly address the title position?
- What explanation appeared in the Report on Title?
- Was indemnity insurance obtained and explained?
- Were future sale and mortgage implications discussed?
- Was an upgrade promised, proposed or merely considered possible?
Information reaching a solicitor and its significance being explained to the buyer are separate questions.
Equally, the fact that several residents report being unaware does not prove that every file contains the same omission. Each transaction needs examination.
What does an unsuccessful upgrade application tell you?
A reported refusal to upgrade deserves investigation, but it should not be treated as proof of deliberate concealment.
Obtain the application and HM Land Registry’s response where available. Establish which title it concerned, what evidence was supplied and why the application did not succeed.
An application may have been rejected, cancelled, withdrawn or refused following consideration. Those outcomes are different and should not be conflated.
The chronology matters: what was known before your purchase, what documents your conveyancer received and what you were told about the prospect of an upgrade.
Can the title be upgraded now?
An upgrade is not automatic. HM Land Registry’s Practice Guide 42 explains the available routes and evidence requirements.
For possessory freehold title, a route based on the passage of time may become available after 12 years from registration, subject to the requirements. The age of the house and the current owner’s purchase date do not necessarily identify that starting point.
An earlier application may be possible if evidence remedies the reason for the inferior class. Whether that can be done on this development requires title-specific advice.
Will indemnity insurance save the sale?
Possibly, but the policy and the buyer’s lender’s requirements need checking.
Insurance does not change the registered class of title. Its value depends on the insured risk, beneficiaries, exclusions, conditions and level of cover.
Ask your current conveyancer what remains unresolved and whether the proposed protection satisfies the buyer and lender. Seek advice before approaching potential claimants or taking steps that might affect insurance availability or existing cover.
Our existing article on possessory title and historical mortgage lender requirements explains why the original lender’s dated instructions and purchase file may also matter.
What should you ask your original conveyancer?
Request an explanation supported by the purchase documents, rather than a general assurance that the title was acceptable.
- Where was the title class identified before exchange?
- What advice was given about its significance?
- What enquiries were raised with the developer?
- Was any unsuccessful upgrade application investigated?
- What did the mortgage lender require, and was any necessary approval obtained?
- What protection was agreed and what limitations were explained?
- What happened during registration, and was the completed register checked and reported?
A completed mortgage does not itself establish that the buyer understood the issue or that every necessary lender requirement was satisfied.
Resolve the sale and investigate the purchase
Your present conveyancer needs to establish what will allow the sale to proceed, including any acceptable insurance, further evidence or upgrade application.
Separately, the original purchase file may establish whether the title position was properly investigated and explained. Avoid assuming either that the developer’s explanation settles the issue or that the discovery automatically proves negligence.
The useful starting question is whether you understood what you were buying and the practical implications before becoming committed.
Possessory title has come as a surprise?
If your new-build home’s title is affecting a sale or remortgage, the original register, transfer, Report on Title and lender correspondence may help explain what happened.
Would knowing about possessory title have changed your decision to buy? Tell When I Bought what you discovered and when you purchased.
Possessory-title problem? Tell When I Bought →You do not need to decide whether anyone was at fault before explaining what happened.
This article concerns property in England and Wales. The owner’s account is unverified and is not a finding against any developer or legal adviser. Liability depends on the documents, advice, circumstances and resulting loss. When I Bought is a Lexsure service, not a law firm. Time limits may apply to complaints or claims.