Defective Title

Defective Title
Defective Title
Quick Summary of Defective Title

Defective title is a legal term used to describe a situation where the seller of a property does not have full and clear ownership rights to transfer to the buyer. This defect can arise due to various reasons, such as unresolved liens, undisclosed encumbrances, adverse possession claims, or errors in the chain of title documentation. When purchasing real estate, having defective title can lead to legal disputes, challenges to ownership, and financial losses for the buyer. It is essential for buyers to conduct thorough title searches and obtain title insurance to protect against defects in title and ensure clear ownership rights before completing a real estate transaction.

What is the dictionary definition of Defective Title?
Dictionary Definition of Defective Title

n. an apparent title to real property which fails because a claimed prior holder of the title did not have title, or there is a faulty description of the property or some other “cloud” over it, which may or may not be apparent from reading the deed.

An owner’s title to land or goods can be ‘defective’ (that is, less than perfect) in at least four ways.

  • He may not be the owner at all. Of course, the reason why a person seeks to sell something he does not own might be because he is a villain. However, a person may be dispossessed of his title by an action of law and then find that he cannot pass title in a sale. For example, the owner of unregistered land may be dispossessed by a squatter if he loses his right to remove the squatter after 12 years (see adverse possession). Although the dispossessed owner holds the title deeds, if the squatter has subsequently been registered as the proprietor, the former owner has no title to pass.
  • The owner may have limited powers of disposition. This situation often arises when the owner is a company; its powers to buy and sell property may be limited by statute or by its own articles. As far as land is concerned, the LRA (2002) now makes it clear that a person (legal or natural) who sells property outside its powers is not prevented from giving good title simply by the fact that the sale was ultra vires; however, both the seller and the buyer may still be acting unlawfully.
  • The property is subject to infringements (that is, third-party rights are against it).
  • The title may have become determinable. That is, someone else may have the power to bring the title to an end. This situation usually occurs in the context of leasehold land, where the tenant has done something that gives the landlord the right to re-enter, but that right has not yet been exercised.
Full Definition Of Defective Title

Defective title in property law refers to a situation where the title to a property is not valid or has defects that may affect its transferability or ownership. This can pose significant risks for purchasers, lenders, and others who may have an interest in the property. In British law, the concept of title is central to property transactions, and a defective title can lead to disputes, financial losses, and complications in the sale or transfer of property. This overview explores the nature of defective titles, the common causes, legal implications, and remedies available under British law.

Nature of Defective Title

A defective title is one that is impaired by issues that undermine its validity. These defects can arise from various sources, including errors in documentation, unresolved legal disputes, encumbrances, and non-compliance with statutory requirements. A title must be “good and marketable” to be free from defects, meaning it should be clear of any legal issues that could prevent the buyer from having full ownership.

The Common Causes of Defective Title

  • Errors in Documentation: Mistakes in legal documents such as deeds, wills, or other conveyance instruments can lead to a defective title. Errors may include incorrect descriptions of the property, misspelled names, or improper execution of documents.
  • Unresolved Legal Disputes: Ongoing litigation or disputes over property boundaries, ownership claims, or easements can cloud the title. These disputes may involve current or previous owners, neighbouring property owners, or third parties.
  • Encumbrances: An encumbrance is a claim, lien, charge, or liability attached to the property. Common encumbrances include mortgages, unpaid taxes, easements, and restrictive covenants. These can limit the owner’s ability to transfer clear title to a buyer.
  • Fraud and Forgery: Fraudulent activities such as forged documents, fraudulent conveyances, or identity theft can create significant title defects. For instance, if a property is sold using a forged deed, the true owner may later contest the transaction.
  • Non-compliance with Statutory Requirements: Property transactions must comply with various statutory requirements, including proper registration, adherence to planning and zoning laws, and environmental regulations. Non-compliance can render a title defective.

The Legal Implications of Defective Title

  • Impact on Property Transactions: A defective title can impede the sale or transfer of property. Buyers and lenders typically require clear title before completing a transaction. If a defect is discovered, it can delay or derail the transaction, leading to financial losses and legal disputes.
  • Risk to Buyers and Lenders: Buyers who acquire property with a defective title risk losing their investment if the defect cannot be resolved. Lenders may also face challenges in recovering their loans if the property used as security has a defective title.
  • Legal Disputes and Litigation: Defective titles often lead to legal disputes between parties, including buyers, sellers, lenders, and third parties. Resolving these disputes can be costly and time-consuming, requiring legal intervention and, in some cases, court proceedings.

Remedies for a Defective Title

  • Title Insurance: Title insurance is a common remedy that protects buyers and lenders against losses arising from defects in the title. The insurance company conducts a thorough title search before issuing a policy, which provides coverage for specified risks and defects.
  • Title Search and Due Diligence: Conducting a comprehensive title search is crucial in identifying and addressing potential defects before completing a transaction. Legal professionals often perform this search, reviewing public records, historical documents, and other relevant information.
  • Corrective Actions: If a defect is discovered, corrective actions may include re-executing documents, obtaining necessary consents, settling disputes, or paying off encumbrances. Legal advice and assistance are typically required to navigate these processes.
  • Litigation and Dispute Resolution: In cases where defects cannot be resolved through corrective actions, litigation or alternative dispute resolution methods such as mediation or arbitration may be necessary. Courts can adjudicate on ownership claims, boundary disputes, and other issues affecting title.

Case Law and Statutory Frameworks

Case Law

British case law provides numerous examples and precedents related to defective title. Some notable cases include:

  • Midland Bank Trust Co Ltd v Green [1981] AC 513: This case involved the issue of a defective title due to a failure to register an option to purchase land. The House of Lords held that the option was void against a purchaser for value without notice, highlighting the importance of proper registration.
  • Scott v Southern Pacific Mortgages Ltd [2014] UKSC 52: This case addressed the rights of a buyer in possession under an unregistered land contract. The Supreme Court’s decision underscored the complexities surrounding unregistered interests and the implications for title validity.
  • Williams & Glyn’s Bank Ltd v Boland [1981] AC 487: This case examined the rights of spouses in matrimonial homes and how their interests can affect the title. The ruling emphasised the need to consider equitable interests when determining the validity of title.

Statutory Framework

Several statutes govern the issue of defective title in British law:

  • Land Registration Act 2002: This Act governs the registration of land and interests in land in England and Wales. It aims to simplify and modernise the process of land registration, ensuring greater transparency and reducing the risk of defective titles.
  • Law of Property Act 1925: This Act consolidates and amends the law of property in England and Wales. It includes provisions related to conveyancing, mortgages, leases, and easements, which are relevant to the issue of defective title.
  • Land Charges Act 1972: This Act deals with the registration of certain charges and interests affecting unregistered land. It provides a framework for the registration of encumbrances, helping to prevent defects in title arising from undisclosed interests.

Practical Considerations for Avoiding Defective Title

  • Engage Professional Services: Engaging the services of qualified solicitors, conveyancers, and surveyors is crucial in identifying and addressing potential title defects. These professionals can conduct thorough due diligence, advise on legal requirements, and facilitate corrective actions.
  • Comprehensive Title Search: Conducting a comprehensive title search is essential in uncovering any issues that may affect the title. This search should include reviewing public records, historical documents, planning permissions, and any other relevant information.
  • Title Insurance: Obtaining title insurance can provide peace of mind and financial protection against losses arising from defects in the title. It is particularly useful in complex transactions or where there are known risks.
  • Clear Communication and Documentation: Ensuring clear communication and accurate documentation throughout the transaction process can help prevent errors and misunderstandings that may lead to defective title. All parties should be informed of their rights and obligations, and all agreements should be properly documented and executed.
  • Addressing Encumbrances: Identifying and addressing any encumbrances on the property is crucial. This may involve paying off outstanding mortgages, settling disputes, or negotiating releases from restrictive covenants or easements.


Defective title is a significant concern in property law, with potential implications for buyers, sellers, lenders, and other stakeholders. Understanding the nature of defective titles, the common causes, legal implications, and available remedies is crucial in navigating property transactions and mitigating risks. Through comprehensive due diligence, professional advice, and appropriate corrective actions, the risks associated with defective title can be effectively managed. The statutory framework and case law provide a robust foundation for addressing these issues, ensuring that property transactions are conducted with greater certainty and security.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 7th June 2024.

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