Pre-contract searches and enquiries

Question 1

What are the essential searches?

Answer 1

Local search CON29: Local Authority gives replies based on its records on planning permission or building regulations sought, environmental notices and public rights of way

Search of local land charges register (LLC1): listed building status or anything that affects the use of the property

Desktop environmental search: identifies if the land had been used for potential contaminative uses, any industrial land use within 250m, likelihood of flooding

Drainage and water enquiries: search raised with the local water company re: sewage and mains water supply

Question 2

What other optional searches are there?

Answer 2

Coal mining search (property falls in an area that could be subject to local mining): identifies risk of subsidence and whether any compensation had been paid already

Railways search: where a railway passes near the property or property may be within proximity of proposed railway; specific enquiries can be made of Network Rail / relevant rail company about issues such as access rights across property

Waterways: where property has a waterway (river or canal) passing through or next to it; shows liability for maintenance of river bank or canal, drainage and fishing rights, owner’s liability for flooding

Question 3

Environmental surveys

Answer 3

Environmental Phase I survey: more detailed than the standard desktop environmental search and includes a site inspection

Environmental Phase II survey: taken where Phase I indicates risk of contamination; soil/water samples are tested to indicate whether there is contamination or not

Question 4

Residential enquiries

Answer 4

TA6 property information form

TA10 fittings and contents form

(TA7 leasehold information form: used where a property is a long leasehold)

(TA8 new home information form)

In residential transactions that follow the conveyancing protocol, 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

Question 5

What if the replies are wrong?

Answer 5

The buyer could have remedies for misrepresentation (rescission or damages)

A seller may decline to answer enquiries if they have no knowledge of the property (e.g. executor)

“Not so far as the seller is aware”: seller can be taken to have made reasonable investigations in the matter

Question 6

Caveat emptor – ‘buyer beware’

Answer 6

Buyer’s solicitor is responsible for Investigating title and raising pre-contract searches and enquiries

Misrepresentation: false statement which induces a buyer to contract to buy. Alternatively, buyer can rely on the contract itself (only need to prove that there was an error/omission, not that they were induced)

Latent incumbrances: seller is under a duty to disclose latent incumbrances of which it is aware or of which it has the means to know, acting reasonably and diligently

Question 7

Surveys

Answer 7

Basic valuation: minimum that the lender will insist on if a mortgage is being obtained

Homebuyer report: more detailed, suitable for most properties in reasonable condition aged less than 150 years

Full structural survey: most expensive option; considered where the property is listed, has had extensive renovations, or where extensive alterations are planned