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Property Practice > Pre - Contract Searches And Enquires > Flashcards

Pre - Contract Searches And Enquires Flashcards

1
Q

Whose solicitor investigates title, raises searches and standard enquiries?

A

The buyers solicitor

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2
Q

What does the report on title identify?

A

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.

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3
Q

Should the report on title be relied on by anyone else?

A

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.

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4
Q

Who are searches usually carried out by?

A

The buyers solicitor

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5
Q

Who else could carry out searches?

A

Lender’s solicitor might carry out searches, particularly for a remortgage with no associated purchase.

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6
Q

What searches will always be necessary?

A

Standard searches

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7
Q

What are the standard searches?

A

Local search (CON29), drainage and water enquiries, desktop environmental search, chancel repair liability.

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8
Q

What type of searches are carried out depending on the type of title/seller?

A

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

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9
Q

What are the optional searches?

A

CON29O, highways search, coal mining search, Cheshire Salt, tin, clay and limestone, Phase I/Phase II survey, flood search, utility providers, railways, waterways.

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10
Q

What information does the CON29 Local Search reveal?

A

Planning permissions, refusals and completion notices, building regulations, roads and public rights of way, environmental notices.

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11
Q

What additional enquiries can be made under CON29O?

A

Common land and town or village green, road proposals by private bodies, areas of outstanding natural beauty and national parks, pipelines, noise abatement zones.

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12
Q

What enquiry number is Common land and town or village green?

A

Enquiry 22

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13
Q

What is included in the LLC1 local search?

A

Planning permissions granted, planning enforcement or stop notices, article 4 directions, tree preservation orders, smoke control orders, financial charges, conservation areas, listed building status.

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14
Q

What does the drainage and water search check?

A

Whether foul and surface water from the property drain to a public sewer, and whether the property is connected to a mains water supply.

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15
Q

Why should a desktop environmental search always be conducted?

A

Because an owner may be liable for the costs of cleaning up contaminated land, even if not responsible for the contamination.

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16
Q

What information is provided in a desktop environmental search?

A

Indicates if the property has been used for potentially contaminative land uses, likelihood of flooding, susceptibility to natural subsidence, and industrial land uses within 250 metres.

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17
Q

What properties does chancel repair liability affect?

A

Affects properties in parishes where there is a pre-Reformation church.

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18
Q

What does a chancel repair search show?

A

Whether the property is responsible for church repairs - any potential liability can be covered by indemnity insurance.

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19
Q

What does a highways search show?

A

The boundary of the public highway on a map. If the property does not immediately abut the highway, appropriate rights of access must be ensured.

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20
Q

When is a highways search needed?

A

When there is any doubt as to whether the property immediately abuts the highways and for most commercial properties.

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21
Q

What does a coal mining search identify?

A

The risk of subsidence, and whether any compensation has already been paid.

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22
Q

What is a Cheshire salt search?

A

When property falls within an area that could be subject to brine subsidence.

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23
Q

What is a tin, clay and limestone search?

A

Similar to coal mining search, but specifically for the minerals indicated.

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24
Q

What is an environmental phase 1 survey?

A

More detailed than the standard desktop environmental search and includes a site inspection.

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25
Q

What is an environmental phase 2 survey?

A

Taken where Phase 1 study indicates risk of contamination. Soil/water samples are tested.

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26
Q

When is a flood search needed?

A

Where property is known to have flooded in the past.

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27
Q

When would you carry out a utility providers search?

A

Where property is a new development or a site for development.

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28
Q

When would a railways search be needed?

A

Where a railway passes near the property or property may be within proximity of proposed railway.

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29
Q

Is there a standard railway search?

A

No, but specific enquiries may be made of Network Rail or the relevant railway company.

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30
Q

When would a waterways search be needed?

A

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

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31
Q

What does a waterways search not show?

A

Flood risk

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32
Q

What are the standard enquiries forms for commercial property?

A

CPSE1 (Commercial property standard enquiries)

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33
Q

What are the standard enquiry forms for residential property?

A

Under the law society conveyancing protocol, the following forms are always used:
• Property information form (Form TA6) - – contains information about boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters, etc

• Fittings and contents form (Form TA10) - items that are included or not in the sale, such as curtains, light fittings, carpets, etc

34
Q

Can a seller deliberately mislead a buyer when they are carrying out pre-contract enquiries?

A

No - The seller cannot deliberately mislead the buyer, by concealing physical defects or answering enquiries dishonestly.

35
Q

What can a seller be taken to have done if they answer pre-contract enquiries with the answer ‘Not so far as the seller is aware’?

A

Can be taken to have made reasonable investigations in the matter.

36
Q

When can a seller decline to answer pre-contract enquiry questions?

A

A seller may decline to answer enquiries if they have no knowledge of the property (e.g., an executor of a deceased’s estate).

37
Q

When is a central land charges search conducted?

A

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.

38
Q

When would a companies search be undertaken?

A

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.

39
Q

When is planning permission needed?

A

Whenever there is a development on land.

40
Q

What are the exceptions to planning permission being needed?

A

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.

41
Q

Does planning permission change of use include changes of use that remain in the same letter group but just change number?

A

Yes - covers changes from different letters and a different number even if same letter.

42
Q

Will a change from or to a use that is Sui generis require planning permission?

A

Yes.

43
Q

What are some examples of sui generis uses?

A

Theatres, amusement arcades, pubs and nightclubs, fuel stations.

44
Q

Do you need planning permission if the development falls within the GDPO (general permitted development order)?

A

No.

45
Q

When can the GDPO be excluded?

A

By an article 4 direction (these can only be made in conservation areas).

46
Q

What search is an enquiry into whether an article 4 direction has been made and therefore the GDPO is excluded?

A

This enquiry is part of the local search - LLC1.

47
Q

What are listed buildings?

A

Listed buildings are of special architectural or historic interest.

48
Q

When are planning rules stricter?

A

For properties that are listed buildings or fall within conservation areas.

49
Q

When is listed building consent needed?

A

To demolish, alter or extend a listed building.

50
Q

Can listed building consent be needed even if planning permission isn’t?

A

Yes - internal alterations.

51
Q

Does some GDPO matters not apply to listed buildings?

A

Yes.

52
Q

What are conservation areas?

A

Areas of special historic or architectural interest, the character or appearance of which it is desirable to preserve or enhance.

53
Q

Is the GPDO restricted in conservation areas?

A

Yes.

54
Q

Is consent needed to cut back or down trees in conservation areas?

A

Yes.

55
Q

Where are the building regulations found?

A

The Building Act 1984.

56
Q

What do the building regulations apply to?

A

Building work.

57
Q

What does building work include?

A

Erection or extension of a building; installation or extension of a service or fitting that is controlled under the Building Regulations; work required where there is a material change of use of the whole building.

58
Q

Can work require building regulation consent and not planning permission?

A

Yes.

59
Q

What will be issued if the work is in accordance with the building regulations?

A

Certificate of compliance.

60
Q

Where will certificates of compliance and self-certifications apply in relation to searches?

A

The CON29.

61
Q

Who are breaches of planning control enforced against?

A

The current land owner, not the person who caused the breach.

62
Q

What are the local authority’s enforcement options in relation to breach of planning permission?

A

Enforcement notice, stop notice, breach of condition notice, injunction.

63
Q

What is an enforcement notice?

A

Local authority gives 28 days notice that the land must be restored to condition it was in before unauthorized development, or comply with any conditions or limitation imposed by planning permission.
After 28 days land owner may be fined, and the local authority can enter land to carry out works and charge the land owner

64
Q

What is a stop notice?

A

Can be served only after serving an enforcement notice, requires the unauthorized use to stop immediately.

65
Q

What is a breach of condition notice?

A

Similar to enforcement but only concerned with breach of condition or limitation to planning permission.

66
Q

What is an injunction?

A

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

67
Q

What are the enforcement time limits for work completed before 25 April 2004 (planning permission)?

A

4 years for building works; 10 years for other changes of use or breach of a planning condition.

68
Q

What are the enforcement time limits for work completed after 25 April 2004 (planning permission)?

A

10 years for all planning breaches.

69
Q

When can enforcement happen outside of the time limits?

A

Where a breach of planning control has been deliberately concealed.

70
Q

What are the enforcement options for breach of building regulations?

A

Prosecution, enforcement notice, injunction.

71
Q

What is the time limit for prosecution in relation to building regulations?

A

Local authority has unlimited time to prosecute.

72
Q

What is the time limit for enforcement notice for breach of building regulations?

A

10 years after completion of building work.

73
Q

Is there a time limit for local authority to apply to the court for an injunction in relation to breach of building regulations?

A

No.

74
Q

What are the options available to a buyer on discovering a breach of planning or building regulations?

A

Invite seller to regulate matters before completion;

Seller may be able to obtain retrospective planning permission for devlopment or regularisation certificate for works that did not have building reg approval but otherwise comply

obtain indemnity insurance (usually at sellers expense). Hwoevr this only covers finacial loss for enforcemnt, for building reg breaches healt and safety risk not covered e.g for claims of personal injury/death

withdraw from transaction (not usually necessary unless breach central issue to the purchase)

75
Q

What enquiries can be raised in commercial transactions?

A

The buyer’s solicitor can raise whatever enquiries they like, but the seller’s solicitor may decline to respond to irrelevant enquiries.

76
Q

Under the law society conveyancing protocol, what additional enquiries may a buyer’s solicitor raise?

A

Only those that are essential to act in their client’s best interest.

77
Q

What are the remedies for misrepresentation to buyers’ enquiries?

A

Rescission or damages.

78
Q

Do most commercial and residential property contracts include standard conditions which limit the buyer’s ability to rescind the contract?

A

Yes.

79
Q

When are damages available for misrepresentation?

A

Damages are only available where there is a material difference between the represented and the actual description or value of the property.

80
Q

When is the law society conveyancing protocol not appropriate?

A

For new build homes.

81
Q

Is observance of the protocol mandatory?

A

No - except for conveyancers who have the Conveyancing Quality Scheme accreditation.

Property Practice (9 decks)

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