For properties located in England and Wales, it is sometimes
asked whether a buyer should request an indemnity against unknown
matters affecting the land. For example, it may be that a property
is registered with the possessory title because the original or a
copy of the root of title, such as a conveyance, could not be
provided to HM Land Registry for the purposes of first
registration. In such instances, how can a buyer be sure that there
is no continuing liability or otherwise which may be contained or
referred to in that missing root of title or other document, and
how can it protect itself?
Generally, a successor in the title will not be liable for
breaches of covenant caused by a predecessor, and it is the buyer
who must provide an indemnity to the seller because the seller
could be liable for breaches caused by the buyer. However, the
seller might have direct liability under, for example an indemnity
covenant it gave on its purchase.
