Pre-contract Searches and Enquiries

Question 1

What is the report on title?

Answer 1

A report on title is 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.

The report on title will identify:

• 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.

Typical contents page of a report on title:

Interpretation Scope of the review and limitation of liability Executive summary Purchase price and other contract terms The Property Matters benefiting the Property Matters burdening the Property Search results Replies to enquiries Planning and building regulations Insurance Stamp Duty Land Tax Conclusion

Question 2

What is the solicitor’s liability regarding the report on title?

Answer 2

• 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
• 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 3

What searches are standard?

Answer 3

Standard searches:

• “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

Depending on type of title/seller:

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

companies search

Question 4

What are the optional searches?

Answer 4

• CON29O (including commons registration search)
• Highways search
• Coal mining search
• Cheshire Salt
• Tin, clay and limestone
• Phase I/Phase II survey
• Flood search
• Utility providers
• Railways – overground, underground, crossrail or HS2
• Waterways

Question 5

What is the NLIS?

Answer 5

National Land Information Service (NLIS)

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.

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 6

What is the local search?

Answer 6

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:

Optional enquiries (Form CON29O)

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

Standard enquiries of the local authority (Form CON29)

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.

Local Land Charges Search (LLC1)

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 7

What is the CON29?

Answer 7

The “local search” – CON29

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

Examples of optional enquiries (CON29O) are:

• 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 8

What is the LLC1?

Answer 8

The “local search” – LLC1

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

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 9

What is the Drainage and Water Search?

Answer 9

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.

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 10

What is a desktop environmental search?

Answer 10

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 not responsible for the contamination.

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).

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 11

What is a chancel repairs search?

Answer 11

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 12

What is a highways search?

Answer 12

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.

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 13

What are the other environmental searches?

Answer 13

Coal mining (CON29M) - 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).

Cheshire Salt search - 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)

Tin, clay and limestone - 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).

Other searches - environmental

Environmental Phase 1 Survey - This is more detailed than the standard desktop environmental search and includes a site inspection.

Environmental Phas 2 Survey - 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.

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

Question 14

What other miscellaneous searches might be conducted?

Answer 14

Utility providers - 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)

Railways - 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

Waterways search - 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 do not use to assess flood risk).

Question 15

What are the different replies to standard enquiries?

Answer 15

Commercial property – the standard replies to enquiries are known as CPSE1 (Commercial Property Standard Enquiries). There are additional CPSE forms (CPSE2, CPSE3, etc) for different transactions.

Residential property – the standard forms are:

• 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

Question 16

Does the seller have to respond to enquiries?

Answer 16

The replies rely on the seller being co-operative and truthful.

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

The seller cannot deliberately mislead the buyer, by concealing physical defects or answering enquiries dishonestly. A misleading statement may give rise to an action in misrepresentation.

“Not so far as the seller is aware”

This phrase does not absolve the seller of responsibility if the answer should have been “yes”.

Question 17

What are the searches relating to title?

Answer 17

Index map search (SIM) - 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.

MapSearch – 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.

Central Land Charge Search (Form K15) (Don’t confuse this with the local land charges register (part of the local search!) - 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 18

What are the searches relating to the seller?

Answer 18

Bankruptcy search (K16) - 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, but this will be dealt with in Week 5.

Companies Search - 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.

Central Land Charge Search (Form K15) - 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 19

What is the local search?

Answer 19

The local search is carried out in every transaction whether residential or commercial and is one of the most important searches to carry out.

The local search is the name used in practice for a combination of various searches which you have probably already heard about. It comprises the local land charges search [or LLC1] [and the local authority enquiries being the standard enquiries using CON29 form and the optional enquiries using CON29O form.

Question 20

Where is can you find information about planning permission and building regulations?

Answer 20

While there is some overlap between the LLC1 and the CON 29 in relation to planning information, the key difference is that the LLC1 will only give you details of what planning permissions have been granted, the CON 29 will give you some more information.

The CON 29 will tell you about what planning permissions have been granted, and in addition it will actually tell you what planning refusals there have been and also what applications are currently going through so it gives a wider picture of the planning applications for the property.

The Con 29 also informs you whether Building Regulations Approvals and Building Regulations Completion Certificates have been obtained for works carried out.

Question 21

Where can you find information about roads and highways?

Answer 21

In relation to roads, the main question on the CON 29 is: are the roads adjacent to the property actually adopted i.e. public highways, or not?

One of the key issues when looking at any private right of way benefitting a property is will it be adopted? The CON 29 tells you of any current adoption plans.

NB Highways Search

Just a point here to mention you might remember we would always carry out a highways search – but you might be thinking why do the highways search when the CON29 confirms the road situation?

The highways search tells you the exact boundary between private land and the highway with reference to a plan. It is carried out so that a buyer can ensure that the property they intend to purchase either;

· Abuts a public highway; or

· Any right of way, which the land has the benefit of, abuts the public highway.

This is slightly different information to what the local authority enquiries tell you, as they simply say whether a particular road is adopted or not, and do not go on to look at the boundaries between the public highway and the property or any private land

Question 22

When is planning permission needed?

Answer 22

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 23

What is sui generis?

Answer 23

• Some uses are sui generis, meaning that they are do not belong to a use class – this means that any change to or from that use will require planning permission
• Theatres
• amusement arcades
• launderettes
• fuel stations
• pubs and nightclubs
• takeaways where food mostly consumed off the premises
• concert halls

Question 24

What is the GPDO?

Answer 24

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.

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.

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 25

For what kinds of properties is planning permission stricter?

Answer 25

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

Listed buildings are of special architectural or historic interest.

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

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

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

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

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

Conservation areas

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.

Some effects of a conservation area

• 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 26

When do building regulations apply?

Answer 26

The Building Regulations 2010 (SI 2010/2214) (“BR2010”) apply to “building work” (regulation 3, BR2010), which includes:

• 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

Building regulations – consent and approval

• Before carrying out work covered by the regulations, building regulations consent is needed. This is separate from the requirement for planning permission, and it may be that some works will require both, and some will require one but not the other.
• The work may be inspected by a building control inspector, who will issue a building regulations certificate of compliance if the work is in accordance with building regulations.
• Self-certification schemes exist for certain types of work. For example, a window installer registered with the Fensa (Fenestration self assessment) scheme will certify to Fensa that windows comply with building regulations. Fensa will then lodge the certificate with the local authority.
• Other work covered by self-certification schemes include roof replacement (NAPIT or CompetentRoofer), gas boiler (Gas Safe Register), cavity walls (Blue Flame Certification)

Question 27

When does a breach of planning control take place?

Answer 27

development has taken place without planning permission; or 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 28

What are the local authority’s enforcement options?

Answer 28

Enforcement notice - 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

Stop notice - 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

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

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

Question 29

What are the planning control enforcement time limits?

Answer 29

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

Where a breach of planning control has been deliberately concealed, the local authority can apply to a magistrates’ court for a planning enforcement order. 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 30

What are the enforcement options for a breach of building regulations?

Answer 30

Prosecution - 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.

Enforcement notice - 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.

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

Question 31

What is the Commercial Property Standard Enquiries (CPSE)?

Answer 31

CPSE1 - 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

CPSE2 - Applies where the property is subject to commercial tenancies (for example, the purchase of an office block or an industrial estate)

CPSE3 - Applies on the grant of a new lease (for example, when acting for a tenant on an industrial estate)

CPSE4-6 - Applies to specific other circumstances (less commonly used)

Question 32

What are the protocol forms for residential properties?

Answer 32

TA6 Property information form - 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

TA10 Fittings and contents form - 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.

TA7 Leasehold information form - Used where the property is a long leasehold (eg, a flat on a 99 year lease)

TA8 New home information form – used where the property has been newly built

Question 33

What is the law society conveyancing protocol?

Answer 33

• 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.
• 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 to provide a recognised quality standard for residential conveyancers and reduce the risk of fraud.

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

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.