Chapter 4: Pre-contract searches & enquiries

Question 1

1 Report on title

Answer 1

The buyer’s solicitor needs to find out as much as possible about a property as possible before exchange of contracts. Caveat emptor means that once contracts are exchanged, in general the buyer has no means of objecting to any issues that arise

Question 2

1 Report on title

Answer 2

The buyer’s solicitor investigates title, raises searches and standard enquiries. If they identify any
issues that require further information, they may raise additional enquiries with the seller’s
solicitor (generally by correspondence).

Question 3

Report on title:

Answer 3

Report on title means the report in which a solicitor reports to its client on the its investigation of title, search results and replies to enquiries. It can take the form of a letter or a standalone document.

Question 4

1.1 The report on title will identify:

Answer 4

• Material facts in respect of the property
• Issues and their implications
• Solutions available
  It will summarise, and put into plain English for the client, the solicitor’s findings.

Question 5

1.2 Typical contents page of a report on title

Answer 5

A report on title may be lengthy and be divided into sections similar to the following:
(a) Interpretation
(b) Scope of the review and limitation of liability
(c) Executive summary
(d) Purchase price and other contract terms
(e) The Property
(f) Matters benefiting the Property
(g) Matters burdening the Property

Question 6

1.2 Typical contents page of a report on title

Answer 6

(h) Search results
(i) Replies to enquiries
(j) Planning and building regulations
(k) Insurance
(l) Stamp Duty Land Tax
(m) Conclusion

Question 7

1.3 Scope of the review and limitation on liability

Answer 7

The report on title will be addressed to the client, and will generally be confidential to that client. It
should not be relied upon by anyone else. The report on title should state that it is based on reviewing the title documents, search results,
planning documents and relies to enquiries. It is not the solicitor’s fault, for example, if the report does not identify an issue that should have been revealed in a search but wasn’t

Question 8

The report should set out limitations to the solicitor’s liability; for example:

Answer 8

• ‘We express no opinion on the commerciality of the transaction. We are unable to advise on the value of the Property.’
• ‘We have not inspected the Property and are unable to advise on the physical condition of the Property. We would advise you to arrange for a survey of the Property to be carried out, if this has not already been arranged.’ The report on title can help comply with the following provisions of the Code of Conduct for
  Solicitors (CCS):

Question 9

1.3.1 CCS 6.4

Answer 9

Requires solicitors to ensure that the client is made aware of all information material to the matter of which they have knowledge. The report on title should include all relevant information that the seller has obtained about the property.

Question 10

1.3.2 CCS 8.6

Answer 10

Requires that solicitors give clients information in a way that they can understand. The report on title needs to be in language appropriate to the client’s requirements. If necessary,
the solicitor should talk the client through the report to ensure that the client understands. The report on title therefore assists a buyer’s solicitor in meeting the requirements of CCS 6.4 and CCS 8.6. It also helps protect the solicitor against a claim for professional negligence for matters not brought to the client’s attention.

Question 11

1.4 Summary

Answer 11

A report on title will be prepared by the buyer’s solicitor before exchange of contracts
* The report summarises the material facts, identify any issues and, if appropriate, discusses possible solutions
* The report will set out what investigations the solicitor has undertaken

Question 12

1.4 Summary

Answer 12

• The report will state any limitations to the solicitor’s liability and any matters that are not considered
• CCS 6.4 requires that a solicitor inform their client fully of material facts to their transaction

Question 13

1.4 Summary

Answer 13

• CCS 8.6 requires that a solicitor give their client information in a way that they can understand
• A client should not proceed to exchange of contracts until they have read the report on title and fully understand what they are buying

Question 14

2 Searches and enquiries

Answer 14

Because of the principle of ‘caveat emptor’ (buyer beware), a buyer’s solicitor will need to find out as much as possible about a property prior to the buyer becoming contractually committed at the point of exchange. The buyer’s solicitor will do this by investigating title and raising pre-contract searches and enquiries. This section considers the role of Pre-Contract Searches

Question 15

2.1 Purpose of searches

Answer 15

The buyer’s solicitor is usually responsible for ordering searches. However, sometimes the seller’s
solicitor may do this; for example, where the seller is selling plots of a residential development to a
number of different buyers. A solicitor acting for a lender may also order searches, particularly in
the case of a remortgage where a new lender is taking security over land, but there is no associated purchase.

Question 16

2.1 Purpose of searches

Answer 16

Searches should be submitted early in the transaction, because some can take some time to complete. They are usually ordered after the buyer’s solicitor has received the draft contract and title from the seller’s solicitor. Searches can be divided into standard searches that should normally be undertaken, and
optional searches that will vary depending on the specific circumstances of the property and
transaction in question.

Question 17

2.1 Purpose of searches

Answer 17

The buyer’s solicitor may ask for money from their client at the outset of the transaction, so that they are ready to order searches.

Question 18

2.1.1 Standard searches:

Answer 18

The following are searches that should be undertaken in every purchase:
* ‘Local search’ – enquiries of the local authority (CON29) and search of the local land charges (LLC1)
* Drainage and water enquiries
* Desktop environmental search
* Chancel repair liability

Question 19

The following searches should be undertaken depending on the title and seller:

Answer 19

• land charges search (unregistered land)
• search of the index map (unregistered or registered land subject to mineral rights)
• companies search

Question 20

2.1.2 Optional searches:

Answer 20

The following searches will be not be needed in every transaction but will depend on the particular transaction and property:
* CON29O (including commons registration search)
* Highways search
* Coal mining search
* Cheshire salt
* Tin, clay and limestone

Question 21

2.1.2 Optional searches:

Answer 21

• Phase I/Phase II survey
• Flood search
• Utility providers
• Railways – overground, underground, crossrail or HS2
• Waterways

Question 22

2.2 Requesting searches

Answer 22

Traditionally, searches had to be raised by sending letters or forms to the appropriate institutions.
Nowadays, most solicitors order searches via an online portal. The National Land Information
Service act as an intermediary between solicitors and the various institutions. The solicitor will
need to register with a ‘channel provider’. Examples are Searchflow, Thames Water Property
Searches, Big Property Data and Index.

Question 23

2.2 Requesting searches

Answer 23

The solicitor (or a secretary or assistant) inputs the address of the property, and can sketch the
boundaries on an Ordnance Survey map. Some searches will be available almost immediately, but others can still take several weeks.

Question 24

2.3 Standard searches
2.3.1 The ‘local search’

Answer 24

The ‘local search’ covers all matters relating to the property within the knowledge/records of the local authority. It comprises three parts which are usually ordered together

Question 25

Standard enquiries of the local authority (Form CON29) -

Answer 25

The local authority gives replies
based on its records as to various matters such as planning and building regulations, roads and public rights of way.

Question 26

Optional enquiries (Form CON29O) -

Answer 26

These are usually only ticked in specific circumstances, such as the commons search (enquiry 22)

Question 27

Local Land Charges Search (LLC1) –

Answer 27

Each local authority keeps a register of local land charges. Local land charges may require the payment of money (such as to bring a road to
adoptable standard) or may affect the use of the property (such as a listed building status)

Question 28

Replies to the standard enquiries of the local authority (CON29)

Answer 28

Will reveal information about the
property and its immediate surroundings, such as:
* planning consents, refusals and completion notices
* building regulations
* roads and public rights of way (such as footpaths)
* environmental notices (including contaminated land notices)

Question 29

Examples of optional enquiries (CON29O) are:

Answer 29

• common land and town or village green (land which is designated for communal use is very restricted)
• road proposals by private bodies
• areas of outstanding natural beauty and national parks
• pipelines
• noise abatement zones

Question 30

The local land charges search (LLC1) is a search of the local authority’s register of local land
charges

Answer 30

There are 12 parts to the land charges register which will reveal matters such as:
* planning permissions that have been granted
* planning enforcement or stop notices
* article 4 directions (restricting the General Permitted Development Order)
* tree preservation orders
* smoke control orders
* financial charges such as road-making charges
* conservation areas
* listed building status

Question 31

2.3.2 Drainage and water search

Answer 31

Questions about drainage and water specific to the property are dealt with by the relevant water service company for the area. For example, in Leeds, the search would be raised with Yorkshire Water.

Question 32

2.3.2 Drainage and water search

Answer 32

The search checks matters such as whether foul and surface water from the property drain to a
public sewer, and whether the property is connected to a mains water supply. Form CON29DW enquiries (residential property) or CommercialDW enquiries (commercial property) are submitted to the relevant water company.

Question 33

2.3.3 Desktop environmental search

Answer 33

An environmental search should always be considered. This is because an owner may be liable for
the costs of cleaning up contaminated land, even if they have not themselves caused the
contamination

Question 34

2.3.3 Desktop environmental search

Answer 34

Some information is given in the local search, but only whether notices have been served. A desktop search is based on historical records and will indicate if the property has been used for potentially contaminative land uses (for example, industrial).As it is based on records, it may miss
issues such as illegal dumping of waste. It also contains information on the likelihood of flooding and susceptibility to natural subsidence,
and industrial land uses within 250 metres of the property

Question 35

2.3.4 Chancel repair search

Answer 35

Chancel repair liability affects properties in parishes where there is a pre-Reformation church.
Responsibility for repair of the church roof was shared between the church and the parishioners. It can be very expensive if the parish church claims this. This search is therefore usually carried out as standard, and if the search shows the potential for
liability, indemnity insurance is readily available to cover the risk.

Question 36

2.4 Optional searches

Answer 36

The local search (specifically CON29) will show whether roads included in the search are adopted highway (ie, maintained by the local authority at its expense for public use). For most residential properties, this will usually be sufficient, as it will be clear that the property immediately abuts the highway. However, where there is any doubt, or for most commercial
properties, a highways search is needed.

Question 37

2.4 Optional searches

Answer 37

The highways search shows the boundary of the public highway on a map. If the results show that
the property does not immediately abut the highway, then it will be necessary to ensure that there are appropriate rights of access.

Question 38

2.4.1 Other searches - mining
Coal mining (CON29M)

Answer 38

When property falls within an area that could be subject to coal
mining. Areas affected by coal mining are listed in a gazetteer, which is freely available. The search identifies the risk of subsidence, and whether any compensation has already been paid (which will mean no future
compensation can be paid).

Question 39

Cheshire Salt search

Answer 39

When property falls within an area that could be subject to brine
subsidence (parts of Cheshire)
Similar to coal mining search (and some search companies
incorporate it in the coal mining search) Similar to coal mining
search (and some search companies incorporate it in the coal mining search)

Question 40

Tin, clay and limestone

Answer 40

Similar to coal mining search, but specifically for the minerals
indicated. Like other mineral searches, it is dependent on area
(eg, there were tin mines in Cornwall and Somerset)

Question 41

2.4.2 Other searches - environmental

Environmental Phase 1
Survey

Answer 41

This is more detailed than the standard desktop environmental
search and includes a site inspection.

Question 42

Environmental Phase 2
Survey

Answer 42

This will be taken where Phase 1 study indicates risk of
contamination. Soil/water samples are tested to indicate whether
there is contamination or not.

Question 43

Flood search

Answer 43

Where property is known to have flooded in the past. Desktop flooding search goes into more detail than desktop environmental search.

Question 44

2.4.3 Other searches - miscellaneous
Utility providers

Answer 44

Where property is a new development or a site for development. Checks that the property has the benefit of utility connections (electricity, gas, telecom, broadband, etc)

Question 45

Railways

Answer 45

Where a railway passes near the property or property may be
within proximity of proposed railway.
There is no standard railway search, but specific enquiries may be made of Network Rail or the relevant railway company (London Underground, Crossrail, HS2, etc) about such issues as access rights across the property.

Question 46

Waterways search

Answer 46

Where property has a waterway (river or canal) passing through
or next to it. Search shows liability for maintenance of river bank or canal,
rights of way for banks and tow paths, drainage and fishing
rights, and owner’s liability for flooding (but this search does not
provide an assessment of flood risk)

Question 47

2.5 Searches relating to title/seller

Answer 47

Some searches relate to the title or the seller. These are no less important than other pre-contract
searches, but it is helpful to keep them distinct in your mind as they form part of your investigation of title.

Question 48

Index map search (SIM)

Answer 48

Where the property is unregistered, or comprises more than one title (registered or unregistered) or the
registered title refers to mineral rights. The index map search shows the extent of registered titles and unregistered land within the area searched. It does not show ownership, and the official copies must be ordered if this information is required.

Question 49

MapSearch

Answer 49

The Land Registry portal contains a free searchable map of registered titles. It is a useful reference tool, but
unlike an index map search, the Land Registry do not guarantee the result.

Question 50

Central Land Charge Search (Form
K15) (Don’t confuse this with the
local land charges register (part of
the local search!)

Answer 50

Where the property is unregistered, the central land charge search is carried out against the full names of
the seller and all previous owners referred to in the epitome of title (refer to notes on investigating title)

Question 51

Bankruptcy search (K16)

Answer 51

This is usually only carried out against the seller if the transaction is not at full market value. This is also carried out at the Central Land Charges Registry. It is carried out against a buyer taking a mortgage.

Question 52

Companies search

Answer 52

If the seller is a company, then a company search should be made to check that the company is in
existence, and has not gone into liquidation or been dissolved.
This also shows security interests that the company has given

Question 53

Central Land Charge Search (Form
K15)

Answer 53

Where the property is unregistered, the central land charge search is carried out against the full names of
the seller and all previous owners referred to in the epitome of title (refer to notes on investigating title)

Question 54

2.6 Summary

Answer 54

• Standard pre-contract enquiries and standard searches should be raised in every transaction
• Optional searches may be appropriate in certain circumstances
• Title and seller searches may be appropriate depending on the particular title and seller
• Additional enquiries will usually be raised as the matter progresses

Question 55

3 Introduction to planning permission and building regulations
3.1 Planning permission
3.1.1 When is planning permission needed?

Answer 55

Development: ‘This means carrying out of certain building works on land or a material change of use of the land (s55, Town and Country Planning Act 1990)

Question 56

3.1.1 When is planning permission needed?

Answer 56

Planning permission is needed whenever there is development on land, unless it falls within certain
exceptions, such as:
* building works that only affect the interior of the building; or
* building works that do not materially affect the external appearance of the building; or
* changes of use that are within the same use class (s3(1), The Town and Country Planning (Use Classes) Order 1987

Question 57

3.1.2 Use classes

Answer 57

The use classes are defined in the Town and Country Planning (Use Classes) Order 1987
* The use classes are grouped by letter and subdivided by letter or number
* Examples of the original classes were A1 (shops), A2 (financial and professional services), A3
(food and drink), B1 (business), B2 (general industrial), C1 (hotels), C3 (dwellinghouses), D1 (non-residential institutions)
* A change from one use class to another, such as C3 to C1 or C3 to B2, requires planning permission

Question 58

3.1.2 Use classes

Answer 58

• Some uses are sui generis, meaning that they do not belong to a use class
• this means that any change to or from that use will require planning permission
• The use classes were amended in 2020 to remove certain use classes within groups A, B and D, and introduced classes E (commercial, business and service), F1 (learning and non-residential institutions) and F2 (local community). Some of the more important new use classes are shown on the table below

Question 59

B2

Answer 59

General industrial

Question 60

C1

Answer 60

Hotels

Question 61

C2

Answer 61

Residential Institutions

Question 62

C3

Answer 62

Dwelling Houses

Question 63

E

Answer 63

Commercial, business and service – this is a wide use class, including retail of goods, food, professional services to the public,
etc

Question 64

F1

Answer 64

Learning and non-residential institutions

Question 65

F2

Answer 65

Local community

Question 66

Sui generis
- not a use class!
Miscellaneous - defies
classification

Answer 66

• theatres
• amusement arcades
• launderettes
• fuel stations
• pubs and nightclubs
• takeaways where food
  mostly consumed off the
  premises
• concert halls
  As well as recognised sui generis uses, any use that does not fit within a use class will be treated as sui generis

Question 67

3.1.3 Permitted development

Answer 67

The Town and Country Planning (General Permitted Development) Order 2015 (known as the ‘GPDO’) allows certain development without planning permission. It operates like a general planning permission.
Permitted development will need to fall within the conditions set out; otherwise, planning permission will be needed.

Question 68

Example

Answer 68

Decking is permitted in a residential garden providing it is no more than 30 cm above the ground, covers no more than half of the garden area, and is to the back of the house

Question 69

3.1.4 Using the GPDO to carry out development
Article 4 Direction

Answer 69

The GPDO can be excluded or amended in a locality by an Article 4 Direction, in which case the
proposed development will need planning permission If proposing to rely on the GPDO, therefore, an enquiry should be made of the local authority whether the GPDO has been excluded. This enquiry is part of the local search.

Question 70

3.1.4 Using the GPDO to carry out development

Answer 70

If unsure whether a development falls within the GPDO, it is possible to apply for a certificate of lawfulness. This is not planning permission but confirms that the work either does not constitute ‘development’ or if it does, that it falls within the GPDO.

Question 71

3.1.5 Listed buildings

Answer 71

Note that planning rules are stricter for properties that are listed buildings or fall within conservation areas

Question 72

Listed buildings

Answer 72

Listed buildings are of special architectural or historic interest.

Question 73

Grade 1

Answer 73

Grade I listed buildings are buildings of exceptional interest (eg, Tower Bridge)

Question 74

Grade II

Answer 74

Grade II* listed buildings are particularly important buildings of more than special interest (eg,
Battersea Power Station)

Question 75

Grade II

Answer 75

Grade II listed buildings are of special interest (eg, Adelphi Hotel, Liverpool)

Question 76

Consent

Answer 76

Listed building consent is needed to demolish, alter or extend a building.

Question 77

Separate requirement

Answer 77

It is a separate requirement from planning permission, and may be necessary even where planning permission isn’t, such as internal alterations. Various matters in the GPDO do not apply to listed buildings

Question 78

Conservation areas

Answer 78

Conservation areas are areas of special historic or architectural interest, the character or
appearance of which it is desirable to preserve or enhance. The local authority is under a duty to designate conservation areas within its locality.

Question 79

Some effects of a conservation area:

Answer 79

• The GPDO will be restricted, so changes to external appearance may require planning permission
• In England, planning permission is needed to demolish an unlisted building within a conservation area
• In Wales, conservation area consent is needed to demolish an unlisted building within a conservation area (conservation area consent in England was abolished in 2013)
• Consent is needed to cut back or cut down trees

Question 80

3.2 Building Regulations

Answer 80

Building regulations are a separate matter from planning permission and should not be confused. The Building Act 1984 creates a statutory system under which building regulations are created and adapted using secondary legislation. The Building Regulations 2010 (SI 2010/2214) (‘BR2010’) apply to ‘building work’ (regulation 3,
BR2010), which includes

Question 81

3.2 Building Regulations

Answer 81

erection or extension of a building
* installation or extension of a service or fitting that is controlled under the Building Regulations (for example, windows, boilers)
* work required where there is a material change of use of the whole building. Building Regulations regulate issues that affect health and safety, such as the structural integrity
of the building, fire escape, water supply, stairways, etc

Question 82

3.2.1 Building regulations – consent and approval

Answer 82

Where someone proposes to carry out building work covered by the building regulations, they
must first obtain building regulations consent. This is a separate requirement from planning
permission. Work of various kinds may require both planning permission and building regulations;
others may only require one of the two. To ensure compliance with building regulations, the building control inspector may inspect the
work. If the work aligns with the relevant regulations, then the inspector will issue a certificate of
compliance

Question 83

3.2.1 Building regulations – consent and approval

Answer 83

For certain types of work, there are self-certification schemes. A window installer registered with the FENSA (Fenestration Self-Assessment) scheme, for example, can self-certify that their work complies with the building regulations. This certificate is then lodged with the building control
department of the local authority. Other self-certification schemes include roof replacement (NAPIT or CompetentRoofer), gas boiler (Gas Safe Register) and cavity walls (Blue Flame Certification Scheme). These schemes provide an efficient way to ensure compliance with building regulations.

Question 84

3.3 Summary

Answer 84

• Planning permission is needed for ‘development’, being building work or a material change of use
• Some building work is excluded from development, such as internal alterations
• The General Permitted Development Order 2015 (GPDO) acts like a general planning permission for various listed works and changes of use

Question 85

3.3 Summary

Answer 85

• The GPDO can be amended or restricted by an Article 4 Direction
• Listed buildings and buildings within conservation areas are subject to stricter controls
• Building regulations are a separate matter from planning permission and are concerned with health and safety

Question 86

4 Planning and building enforcement
4.1 Planning permission: enforcement

Answer 86

A breach of planning control is when:
(a) development has taken place without planning permission; or
(b) a condition or limitation of planning permission has been breached
The local authority have different options for enforcement, but there are time limits within which
they must use them. A buyer’s solicitor must check for breaches of planning control, as enforcement is against the current land owner, not the person who caused the breach.

Question 87

4.1.1 Local authority’s enforcement options
Enforcement notice

Answer 87

Local authority gives 28 days’ notice that:
* land must be restored to condition it was in before unauthorised development; or
* comply with any conditions or limitations imposed by planning permission
* After 28 days, land owner may be fined, and the local authority can enter the land to carry out the work, recovering its expenses from the land owner

Question 88

Stop notice

Answer 88

Local authority can serve a stop notice only after serving an enforcement notice – requires
that specified activity (for example, an unauthorised use) stop immediately. Cannot prohibit use as a dwelling house or any activity that has been carried out for more than four years

Question 89

Breach of condition notice

Answer 89

Similar to enforcement notice, but only concerned with breach of conditions or limitations to planning permission

Question 90

Injunction

Answer 90

Local authority can apply to court for an injunction, but it is discretionary, and local authority needs to show good reason

Question 91

4.1.2 Enforcement time limits

Answer 91

The local authority must take enforcement action (whichever type it is) within the following time
limits:
4 years
* Building works – starting with the date on which the building works were ‘substantially completed’
* Change of use to single dwelling house – starts with the date the use was begun 10 years
* Other changes of use
* Breach of planning condition

Question 92

4.1.3 Enforcement outside time limits

Answer 92

Where a breach of planning control has been deliberately concealed, the local authority can apply to a magistrates’ court for a planning enforcement order. In the case of Fidler v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin), a landowner built a house without planning permission, and concealed it behind bales of straw covered with a tarpaulin.

Question 93

4.1.3 Enforcement outside time limits

Answer 93

The landowner waited for the four years to elapse, and then removed the straw to reveal the house. The high court held that the landowner had always intended to remove the straw bales, so considered it part of the building operation, and the four year period ran from the date on which the bales were removed.

Question 94

4.2 Building regulations: enforcement

Answer 94

If there is a breach of building regulations, then the local authority may take enforcement action.
However, the options for enforcement and time limits are different from those for a breach of
planning control. As with breaches of planning control, a buyer’s solicitor must check for possible breaches of
building regulations, as enforcement may affect the current land owner

Question 95

4.2.1 Enforcement options for breach of building regulations
Prosecution

Answer 95

Local authority has six months after
discovering breach to prosecute the person responsible (builder, installer or main contractor) for the breach in the Magistrates’ Court. Unlimited fines may be imposed. Prosecution may take place up to two years
after completion of the building work.

Question 96

Enforcement notice

Answer 96

Local authority has one year after completion of the building work to serve an enforcement notice. Similar to a planning enforcement notice, this gives the land owner 28 days to
alter or remove the work. Again, if the land owner fails to comply, the local authority can undertake the work at the land owner’s expense

Question 97

Injunction

Answer 97

Local authority can apply to court for an injunction. If the work is unsafe, then there is no time limit.

Question 98

4.3 Implications for a buyer’s solicitor

Answer 98

The buyer’s solicitor needs to check for compliance with planning law and building regulations. The following sources will help:
* Local search – for planning permissions, building regulations consents and approvals, and
enforcement action, GPDO and Article 4 Direction, Conservation Area, Listed Building status
* Seller’s replies to enquiries – for work done or change of use that may have required planning permission or building regulations approval
* Buyer’s survey – the survey may reveal work that is not mentioned in replies to enquiries

Question 99

If a breach is discovered, then the buyer’s solicitor will need to advise on the options available as
follows:

Answer 99

• Withdraw from transaction – drastic, and in most cases will not be necessary unless the issue is central to the purchase.
• Invite seller to regularise matters before completion, whether by removing/altering work, or further paperwork (see below). This may need to be a term of the contract on exchange.
• Obtain indemnity insurance (usually at seller’s expense) for breaches of planning or building regulations. However, only covers financial loss for enforcement. For breaches of building regulations, buyer should be advised of health and safety risk, and policy will not cover claims for personal injury or death.

Question 100

In some circumstances, seller may be able to obtain:

Answer 100

• retrospective planning permission for development;
• regularisation certificate for works that did not have building regulations approval but otherwise comply.

Question 101

4.4 Summary

Answer 101

• Either breaches of planning control or of building regulations are enforceable by the local authority in various ways
• Planning enforcement is subject to limits of 4 years or 10 years
• Building regulations enforcement is subject to limits of 1 year or 2 years, but injunctions have no time limit

Question 102

4.4 Summary

Answer 102

• The buyer’s solicitor must identify any breaches as liability can pass to the buyer if not addressed
• Options for the buyer include withdrawing from the transaction, insisting that the seller correct
  the situation (whether physically or by acquiring further paperwork), or indemnity insurance (usually at the seller’s expense)

Question 103

5 Pre-contract enquiries
5.1 Why raise pre-contract enquiries?

Answer 103

Again, caveat emptor places the burden on the buyer to investigate the property that they intend
to buy as thoroughly as possible.
However, the seller will usually know much about the property that is not readily available in public records or inspection. The seller may be unwilling to volunteer information that would deter the buyer from proceeding with the purchase. They may also be anxious to avoid responsibility for misrepresentation. However, most sellers will accept that without giving the buyer the information they need, the buyer may delay or even withdraw from the transaction.

Question 104

5.1 Why raise pre-contract enquiries?

Answer 104

Sometimes the seller will not have actual knowledge of the property. For example, an executor of a deceased person’s estate may be a relative who has not lived in the house, or even a solicitor. In such cases, they will be unable to give much meaningful information. In such cases, the seller may reasonably choose not to give replies to enquiries. It is then for the buyer to decide whether they
are willing to take the risk of not having this information.

Question 105

5.1 Why raise pre-contract enquiries?

Answer 105

A seller providing replies to enquiries should take care to give correct information. Nonetheless, a
buyer’s solicitor will usually use replies to enquiries to complement other investigations, not as a
sole source of knowledge about the property. The form of enquiries differs for commercial property and residential property, but the principle is the same.

Question 106

5.1.1 Commercial

Answer 106

Solicitors usually use the Commercial Property Standard Enquiries (CPSE), and may add enquiries specific to the transaction.

Question 107

5.1.2 Residential

Answer 107

If the parties adopt the Law Society Conveyancing Protocol (discussed in the next section), enquiries usually use the relevant TransAction form.
Under the protocol, the buyer’s solicitor should only add specific enquiries in limited circumstances.

Question 108

5.2 Commercial Property Standard Enquiries (CPSE)
CPSE1

Answer 108

Applies to all commercial property
transactions, and covers such matters as:
* responsibility for boundaries, and their extent
* rights benefiting and burdening the
property
* access to the property
* physical condition
* contents
* utilities and services
* planning and building regulations
* occupiers and employees
* notices and disputes
* Value Added Tax (VAT) treatment

Question 109

CPSE2

Answer 109

Applies where the property is subject to commercial tenancies (for example, the purchase of an office block or an industrial estate)

Question 110

CPSE3

Answer 110

Applies on the grant of a new lease (for example, when acting for a tenant on an industrial estate)

Question 111

CPSE4-6

Answer 111

Applies to specific other circumstances (less commonly used)

Question 112

5.3 Residential property – protocol forms
TA6: Property information form

Answer 112

Always used. Covers such matters as:
* boundaries
* rights benefiting and burdening the
property
* disputes, complaints and notices
* alterations
* planning and building regulations
* occupiers
* services and utilities
* energy efficiency

Question 113

TA10
Fittings and contents form

Answer 113

Always used. Identifies any fittings and contents included or excluded in the sale. Also identifies those fittings or contents that the buyer may buy in addition to the property.

Question 114

TA7
Leasehold information form

Answer 114

Used where the property is a long leasehold (eg, a flat on a 99-year lease)

Question 115

TA8
New home information form

Answer 115

Used where the property has been newly built

Question 116

5.4 Raising additional enquiries

Answer 116

The buyer’s solicitor will usually want to raise additional enquiries to follow up issues that are raised in the title investigation, results and searches and, sometimes, to expand on information given in standard replies to enquiries. In commercial transactions, the buyer’s solicitor can raise whatever enquiries they like, but the seller’s solicitor may decline to respond to enquiries that they feel are irrelevant, would incur
unnecessary time and expense to answer, etc.

Question 117

5.4 Raising additional enquiries

Answer 117

In residential transactions that follow the conveyancing protocol (see next section), the buyer’s solicitor may only raise additional enquiries to clarify issues arising out of the documents provided, or which are relevant to the title, existing or planned use, nature or location of the
property. They should not raise additional enquiries about the state and condition of the building
unless arising out of the search results, standard replies to enquiries, inspection or their surveyor’s report.

Question 118

5.5 What if the replies are wrong?

Answer 118

• A misrepresentation is when the seller misrepresents a fact (not an opinion). If the buyer relies upon the misrepresentation and suffers loss, the buyer could have an action against the seller in misrepresentation.
• The seller cannot deliberately mislead the buyer by concealing physical defects or answering
  enquiries dishonestly.

Question 119

5.5 What if the replies are wrong?

Answer 119

A seller must take care if answering a question ‘not so far as the seller is aware’ as this implies that the seller has made reasonable investigations and has no actual knowledge of any defect. The seller should check its records and make reasonable enquiries (for example, a company selling should check with its employees). If the seller is unable to make such investigations, the seller
should state this in their reply.

Question 120

5.6 Limiting responsibility for incorrect replies to pre-contract enquiries

Answer 120

Remedies for misrepresentation are rescission or damages.

Question 121

5.6 Limiting responsibility for incorrect replies to pre-contract enquiries

Answer 121

Most commercial and residential property contracts include standard conditions which limit the buyer’s ability to rescind the contract:
‘An error or omission only entitles the buyer to rescind the contract:
1. where it results from fraud or recklessness, or
2. where the buyer would be obliged, to his prejudice, to accept a property differing substantially (in quantity, quality or tenure) from that which the error or omission had led it to expect.’

Question 122

5.6 Limiting responsibility for incorrect replies to pre-contract enquiries

Answer 122

Damages are only available where there is ‘a material difference between the represented and the
actual description or value of the property’. These provisions are in 7.1.1 of the Standard Conditions of Sale (Fifth Edition) for residential
contracts and 10.1 of the Standard Commercial Property Conditions (Third Edition) for commercial
contracts.

Question 123

5.7 Acting for a seller

Answer 123

CPSEs are complex, and some solicitors assist their client by part-completing drafts, asking their
client to fill the gaps and to check the answers already provided.They should check the replies against the title and any information they hold (for example, if the firm manages the tenancies at a property).

The seller’s solicitor should exercise caution with stock answers, such as ‘not so far as the seller is aware’, and ensure that the seller has approved any replies and enclosures before they are sent to the buyer’s solicitor.

Question 124

5.7 Acting for a seller

Answer 124

Residential solicitors usually have a large volume of cases, and will send the standard enquiries to their client to answer (but they are more user-friendly than CPSEs).They should still, however, check replies before sending to the buyer’s solicitors, and make sure there is nothing that is clearly incorrect or incomplete. Whether residential or commercial, replies to enquiries should be checked by the seller’s solicitors before exchange to ensure that they remain up to date.

Question 125

5.8 Summary

Answer 125

• A buyer’s solicitor will find pre-contract enquiries a useful part of the investigation, but they must be treated with caution and do not replace the need to carry out searches and other investigations.
• Standard form enquiries for commercial property are the CPSE enquiries
• Standard form enquiries for residential property are the TransAction forms.
• A seller can face liability for incorrect replies, and a seller’s solicitor should help reduce the risk.

Question 126

6 The Law Society Conveyancing Protocol

Answer 126

‘The use of the Protocol is intended to ensure that all clients are treated fairly and are protected when dealing with high value assets and liabilities. Processes that are open and transparent help make the experience more efficient and reduce wasted time and costs.’ Introduction to the Law Society Conveyancing Protocol

Question 127

6.1 Overview (residential conveyancing transactions only)

Answer 127

• The Law Society Conveyancing Protocol aims to make the conveyancing process more
  efficient and transparent to the benefit of all parties involved.
• It is a set of steps to take when acting in the sale or purchase of a home for an owner-occupier.
• The Protocol is not appropriate for new build homes.

Question 128

6.1 Overview (residential conveyancing transactions only)

Answer 128

• Transparency means sharing information to assist the progress of the transaction (but subject
  to client confidentiality).
• The Protocol is voluntary, but any solicitor or licensed conveyancer can adopt the Protocol.
• Solicitors who are members of the Law Society’s Conveyancing Quality Scheme, however, have to adopt the Protocol, as well as undergoing specific training. This accreditation is to provide a recognised quality standard for residential conveyancers and reduce the risk of fraud.

Question 129

6.2 The Protocol and enquiries

Answer 129

Buyer’s solicitor should only make enquiries that are essential to act in their client’s best interests. The seller’s solicitor should confirm and update, where necessary, replies to enquiries if completed more than two months earlier
A solicitor may breach the Protocol if they:
* use non-Protocol ‘standard’ enquiries indiscriminately
* raise enquiries that seek the seller’s opinion rather than fact. The seller’s solicitor does not have to deal with any enquiries that do not comply with the Protocol

Question 130

6.3 Consequences of breaching the Protocol

Answer 130

Solicitors who choose to adopt the Protocol, who are obliged (as they are part of the Conveyancing Quality Scheme) agree:
* to comply with its terms; and
* act within the spirit of the Protocol.
If a solicitor breaches the Protocol, then the Law Society may require an explanation, potentially leading to their being monitored and even removed from membership of the Conveyancing Quality Scheme.

Question 131

6.4 Summary

Answer 131

• The Protocol is applicable only to conveyancing transactions
• The Protocol is designed to make the conveyancing process more efficient and transparent
  (and therefore less stressful) for the parties
• Observance of the Protocol is voluntary except for conveyancers who have the Conveyancing
  Quality Scheme accreditation
• Breaches of the Protocol can lead to removal from the Conveyancing Quality Scheme