Lexsure e-ROT

Missing Title Deeds · Report on Title scenario

The seller is providing a policy for the unknown covenants

It works for what it is for, which is money rather than certainty. A policy against unknown covenants pays if one of them turns out to exist and is enforced against you, causing loss or a fall in value. It does not find the deeds, remove the covenants or tell you what they say — they remain on the land exactly as before.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure master Report on Title paragraph: Destroyed/Missing Deeds · See the wording

Which describes you?

I’ve already bought the property An unknown covenant is being enforced and I am relying on a policy. Check what this could mean →WhenIBought.com
I’m a conveyancer I need Report on Title wording for this situation. View professional options →

Why insurance is the right instrument here

Because the alternative does not exist. Most title problems have a cure — a deed of variation, a release, a retrospective consent. An unknown covenant cannot be cured, because nobody can draft a release of an obligation whose terms are unknown or identify who would grant it.

That makes this one of the few situations where insurance is not a workaround but the only available answer, and where the usual criticism of indemnity policies misses the point.

What the policy does and does not do

It provides financial protection if an unknown covenant or right is enforced against you, resulting in loss or a reduction in the property's value.

It does not remove or nullify anything. The covenants continue to exist and continue to affect the property, and a successor in title takes the land subject to them exactly as you do.

Read the terms. The extent of cover, the exclusions and the circumstances in which the insurer will pay are what you are buying, and the Lexsure wording below is emphatic about reading them.

The questions worth asking before completion

<b>Does the level of cover match the property's value?</b> Policies are written to a sum, and a policy taken out years ago on a cheaper house may be inadequate now. If you are being given an existing policy, check the figure.

<b>Does it pass to successors and to your lender?</b> Most do; confirm it, because a policy that stops with you is a problem for your sale.

<b>Does it cover what you plan to do?</b> Policies frequently exclude future development or alterations. If an extension is part of why you are buying, the cover needs to contemplate it — and that is much cheaper to arrange now than to add later.

<b>Who is paying?</b> Here the seller agreed. That is the usual and reasonable position, since it is a defect in the title being sold.

Already bought, and relying on the policy?

If an unknown covenant is being enforced, what the policy covers and what was explained to you about it during the purchase are the first two questions.

From the e-ROT archive

Report on Title paragraph

Destroyed/Missing Deeds

Master precedent Lexsure e-ROTScope Policy for unknown covenantsWord count 55Status Current master paragraph

To address the uncertainty created by the missing deeds, the seller has agreed to arrange an indemnity policy. This policy is intended to provide financial protection to you in the event that any unknown restrictive covenants or rights are enforced against you, potentially resulting in a financial loss or reduction in valuation of the property. …

Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly. It describes one policy arranged on one transaction; the terms of any policy offered to you are the terms of that policy.

Dealing with this on a current conveyancing matter?

Current Report on Title paragraph

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