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Property Law and Practice > Pre-Contract Searches and Enquiries > Flashcards

Pre-Contract Searches and Enquiries Flashcards

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1
Q

What will the report on title identify?

A
  • material facts in respect of the property
  • issues and their implications
  • solutions available
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2
Q

Who is the report on title for?

A

It is for the client and will generally be confidential for them. Should not be relied upon by anyone else

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3
Q

What is the limitations of the report on title?

A

Report will state that it is based on reviewing the title documents, search results, planning documents and relies to enquiries.

Solicitor not liable if the report does not identify issues that should have been revealed by searches or surveys of physical condition of the land

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4
Q

When should searches be order?

A

Early in the transaction as some take sometime to complete.

Usually ordered after the buyer’s solicitor has received the draft contract and title from the seller’s solicitor

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5
Q

What searches should be undertaken in every purchase?

A
  • local search - enquiries of the local authority (CON29) and search of the local land charges (LLC1)
  • drainage and water enquires
  • desktop environmental search
  • chancel repair liability
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6
Q

What searches should be undertaken depending on title and 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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7
Q

What searches are optional searches?

A
  • 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, cross rail or HS2
  • Waterways
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8
Q

What is the local search?

A

It covers all matters relating to the property within the knowledge/records of the local authority. Comprised of three parts:

  • standard enquiries of the local authority (Form CON29)
  • Option enquires (Form CON29O)
  • Local Land Charges Search (LLC1)
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9
Q

What will the standard enquiries of the local authority (CON29) reveal?

A
  • planning consents, refusals and completion notices
  • building regulations
  • roads and public rights of way (such as footpaths)
  • environmental notices (including contaminated land notices)
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10
Q

What will optional enquiries (CON29O) reveal?

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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11
Q

What will the local land charges search (LLC1) reveal?

A
  • planning permissions that have been granted
  • planning enforcement or stop notices
  • article 4 directions (restricting General Permitted Development Order)
  • tree preservation orders
  • smoke control orders
  • financial charges such as road-marking charges
  • conservation areas
  • listed building status
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12
Q

What is the drainage and water search?

A

Will ask questions about drainage and water specific to the property to the relevant service company for the area.

Will check things such as whether found and surface water from the property drain to a public sewer and whether property is connected to mains water supply

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13
Q

What is the desktop environmental search?

A

Will look through historical records to see if property has potentially been used for contaminated land uses.

May miss things that don’t appear on records such as illegal dumping of waste.

Contains information on likelihood of flooding and susceptibility to natural subsidence and industrial land uses within 250 metres of the property

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14
Q

What is the chancel repair search?

A

Searches for chancel repair liability which affects property in parishes with pre-reformation churches. Responsibility for repair of the church roof was shared between the church and the parishioners.

If chancel repair liability exists, indemnity insurance should be taken out

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15
Q

When should a highways search be used?

A

Where there is any doubt about whether a property abuts a highway.

Highway search will show boundary of the public highway on a map.

If 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

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16
Q

When should a coal mining search be used (CON29M)? What does the search reveal??

A

When the property falls within an area that could be subject to coal mining.

Areas affected are listed in the gazetteer.

Search identifies risk of subsidence and whether any compensation has already been paid (which will mean no future compensation can be paid)

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17
Q

When should a Cheshire Salt Search be used?

A

When property falls within an area that could be subject to brine subsidence (parts of Cheshire)

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18
Q

When should a Tin, clay and limestone search be used?

A

When risk of subsidence from mining of the minerals. Area dependent

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19
Q

What is an Environmental Phase 1 Survey?

A

More detailed standard desktop environmental search and includes a site inspection

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20
Q

What is an Environmental Phase 2 Survey?

A

Will be taken out where Phase 1 survey indicates risk of contamination.

Soil/water samples will be tested to indicate whether land is contaminated or not

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21
Q

What is a flood search?

A

Goes into more detail than desktop environmental search and should be used where property is known to have flooded in the past

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22
Q

What is a utility provider search?

A

Checks the property has the benefit of utility connections (electricity, gas, telecom, broadband)

Should be used where property is a new development or site for development

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23
Q

What is a railways search?

A

No standard search, but specific enquiries should be made or relevant local provider on issues such as access rights across the property.

Should be used where a railway passes near the property or property may be within proximity of proposed railway

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24
Q

What is a waterways search?

A

Where the property has a waterway passing through it or next to it.

Will show 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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25
Q

What is the index map search and when should it be used?

A

Shows the extent of registered titles and unregistered land within the area search.

Should be used where the property is unregistered or comprises more than one title (registered or unregistered or the registered title refers to mineral rights

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26
Q

What is MapSearch and when should it be used?

A

Free searchable map of registered titles by Land Registry.

Useful reference tool but Land Registry does not guarantee the results

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27
Q

What is the Central Land Charge Search and when should it be used?

A

Where the property is unregistered, search carried out against full names of seller and all previous owners referred to in the epitome of title

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28
Q

When will a bankruptcy search be used?

A

Carried out against the seller normally only when the transaction is not at full market value

Also carried out at Central Land Charges Register and against buyer if taking a mortgage

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29
Q

When will a Companies search be used?

A

Should be used to check that the company is in existence and has not gone into liquidation or been dissolved.

Also shows security interests that the company has given

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30
Q

What is a development in terms of planning permission?

A

Carrying out certain building works on land or a material change of use of the land

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31
Q

What exceptions are there to the need to get planning permission for a development?

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
32
Q

When is planning permission required for a change of use?

A

What the change of use amounts to a change from one class to another

33
Q

What is a sui generis use and when will planning permission be needed for it?

A

Means the use does not belong to a specific use class.

Any change of use will require planning permission

34
Q

What use classes are there?

A

B2 - general industrial

C1 - Hotels

C2 - Residential Institutions

C3 - Dwelling Houses

E - Commercial, business and service - wide use class

F1 - Learning and non-residential institutions

F2 - Local community

Sui generis - miscellaneous - includes theatres, arcades, launderettes, fuel stations, pubs, nightclubs, takeaways, concert halls

35
Q

What is general permitted development?

A

Operates like a general planning permission and means that certain developments will not need planning permissions

36
Q

Can general permitted developments be excluded?

A

Yes, locality can exclude or amend GPDO by Article 4 direction meaning that development will need planning permission

37
Q

What should you do if you are ensure if development falls within GPDO?

A

Can get certificate of lawfulness.

Not planning permission but confirms that the work either does not constitute development or if it does, that it falls within the GPDO

38
Q

For what type of properties will planning permission be stricter for?

A

Listed buildings and conservation areas.

39
Q

What is listed building consent?

A

Separate from planning permission and may be necessary even where planning permission isn’t such as internal alterations.

Also required for demolishing, altering or extending building

40
Q

What are effects of there being a conservation area?

A
  • GDPO will be restricted so changes to external appearance may require planning permission
  • in England, planning permission is needed to demolish an unlisted within a conservation area
  • In Wales, conservation area consent is need to demolish an unlisted building within a conservation area
  • consent is needed to cut back or down trees
41
Q

When are building regulations required?

A
  • erection or extension of a building
  • installation or extension of a service or a fitting that is controlled under the Building Regulations (eg windows, boilers)
  • work required where there is a material change of use of the whole building
42
Q

What do building regs regulate?

A

Issues that affect health and safety such as structural integrity of the building, fire escapes, water supplies, and stairways

43
Q

What must be done if someone is proposing to carry out works covered by building regs?

A

They must obtain building regs consent

44
Q

How will compliance be ensured when works are undertaken?

A

Building control inspector may inspect the work.

If work aligns with relevant regs then inspector will issue a certificate of compliance

45
Q

What are the self-certification schemes?

A

For certain works, registered installers can self certify that their work complies with building regulations.

Certificate is then lodged with the building control department at the local authority

46
Q

When will there be a breach of planning permission?

A
  • when a development has taken place without planning permission
  • a condition or limitation of planning permission has been breached
47
Q

What should buyer’s do in relation to checking for breaches of planning?

A

They should check for breaches of planning as enforcement is against owner of the land not the person who cause the breach

48
Q

What four options does a local authority have in enforcing planning breaches?

A
  • enforcement notice
  • stop notice
  • breach of condition notice
  • injunction
49
Q

How does the enforcement notice work for planning breaches?

A

LA must give 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 LA can enter land and carry out work, recovering its expenses from land owner
50
Q

How does the stop notice work for planning breaches?

A

LA can serve stop notice after enforcement notice. It requires that a specified activity stops immediately.

Cannot be used to prohibit use of dwelling house or any activity that has been carried out for more than four years

51
Q

How does the breach of condition notice work for planning breaches?

A

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

52
Q

How does injunctions work for planning breaches?

A

LA can apply to court for injunction.

Discretionary remedy and LA will need to show good reason

53
Q

What time limits do LAs have for enforcement actions?

A

4 years for:

  • building works - starting with the date on which the building works were substantially completed’
  • change of use to single dwelling house - starting with the date the use started

10 years for:

  • other changes of use
  • breaches of planning conditions
54
Q

When can LA enforce breaches of planning permissions outside of the time limits?

A

When the breach of planning control has been deliberately concealed.

Time limit will only run from when then breach is no longer deliberately concealed

55
Q

Why should buyer be aware of breaches of building regulations?

A

As enforcement takes place against land owner no person that causes breach

56
Q

What enforcement options does the LA have for enforcing building controls?

A
  • prosecution
  • enforcement notice
  • injunction
57
Q

How does prosecution work for enforcing breach of building regulations?

A
  • LA has 6 months after discovering breach to prosecute person responsible for the breach in the Magistrates’ Court
  • Unlimited fines may be imposed
  • Prosecution can take place up to two years after completion of the building works
58
Q

How does an enforcement notice work for enforcing breach of building regulations?

A

LA has one year after completion of building works to serve enforcement notice.

Notice gives land owner 28 days to alter or remove the work.

If the landowner fails to comply then LA can undertake work at land owner’s expense

59
Q

How can the buyer’s solicitor check for compliance with planning law and building regs?

A
  • local search - for planning permission, building reg consents and approvals, and enforcement action, GDPO 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 - may reveal work not mentioned in replies to enquiries or searches
60
Q

What options are available if a breach of planning/building regs is discovered?

A
  • withdraw from transaction
  • invite seller to regularise matters before completion - term of contract of exchange
  • obtain indemnity insurance for breaches of planning or building regs
61
Q

What may the seller be able to obtain for breaches of planning/building regs?

A
  • retrospective planning permission for development
  • regularisation certificate for works that did not have building regs approval but otherwise comply
62
Q

What enquiries for sellers are normally used for Commercial Property?

A

Commercial Property Standard Enquiries and solicitors may add enquiries specific to the transactions

63
Q

What enquiries for sellers are normally used for Residential Property?

A

If parties using the Law Society Conveyancing Protocol, then relevant TransAction form.

Buyer’s solicitor should only add specific enquiries in limited circumstances

64
Q

What does CPSE1 cover?

A

Applies to all commercial property transactions and covers:

  • responsibility for boundaries and their extent
  • rights benefitting 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 treatment
65
Q

What does CPSE 2 cover?

A

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

66
Q

What does CPSE 3 cover?

A

Applies to grant of a new lease

67
Q

What does TransAction 6 Property Information form for residential property cover?

A

Always used. Covers:

  • boundaries
  • rights benefitting and burdening the property
  • disputes, complaints and notices
  • alterations
  • planning and building regulations
  • occupiers
  • services and utilities
  • energy efficiency
68
Q

What does TransAction 10 Fitting and Contents form for residential property cover?

A

Always used.

Identifies any fittings and contents included or excluded in the sale.

Identifies fitting and contents that buyer may buy in addition to the property.

69
Q

What does TransAction 7 Leasehold Information form for residential property cover?

A

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

70
Q

What does TransAction 8 New Home Information form for residential property cover?

A

Used where the property has been newly built

71
Q

What additional enquiries can a buyer’s solicitor raise in commercial transactions?

A

Can raise whatever enquiries they like but seller’s solicitor may decline to respond to enquiries that they feel are irrelevant, would incur unnecessary time and expense to answer

72
Q

What additional enquiries can a buyer’s solicitor raise in residential transactions?

A

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.

Additional enquires about the state and condition of the building should not be raised unless arising out of search results, standard replies to enquiries, inspection or surveyor’s report

73
Q

What happens if the replies are wrong?

A

The buyer could have an action against the seller for misrepresentation

74
Q

If the seller replies ‘not so far as the seller is aware’ what does this imply?

A

Implies that the seller has made reasonable investigations and has no actual knowledge of any defect.

If unable to make such investigations, then should state that

75
Q

What are the remedies for misrepresentation?

A

Rescission or damages.

Most contract will limit ability to rescind.

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

76
Q

What is the role of solicitors in assisting their client in replying to standard enquiries?

A

Solicitors should assist in filling out the form, check the replies against the title and any information they hold.

They should make sure there is nothing that is clearly incorrect or incomplete

They should be checked periodically throughout transaction to make sure they are still correct

77
Q

Is the Law Society Protocol mandatory?

A

No voluntary but solicitors who are member of the Law Society’s Conveyancing Quality Scheme have to adopt the protocol

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