Pre-contract searches and enquiries

Question 1

What is a report on title?

Answer 1

Th report in which a solicitor reports to its client on the investigation of title, search results and replies to enquiries. Can take the form of a letter or a standalone document. It summarises and puts into plain English for the client the solicitor’s findings.

Will identify:
- material facts in respect of the property
- issues and their implications
- solutions available

Question 2

Who can rely on a report on title?

Answer 2

Will be addressed to the client and generally will be confidential to that client. It should not be relied upon by anyone else.

Should state that it is based on reviewing the title documents, search results, planning documents and replies 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.

Report should set out limitations to the solicitor’s liability.

Question 3

Standard Searches

Answer 3

• Local search: CON29 (local authority) and LLC1 (local land charges)
• Drainage and water enquiries
• Desktop environmental search
• Chancel repair liability

Depending on seller:
- Land charges search (unregistered land)
- Index map (unregistered or reg subject to mineral rights)
- Companies search

Question 4

Optional searches

Answer 4

• CON290
• 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

Question 5

National Land Information Service (NLIS)

Answer 5

Most solicitors order searches via an online portal. The National Land Information Service act as an intermediary between solicitors and various institutions.
Solicitor will register with a ‘channel provider’.

Question 6

The local search

Answer 6

Covers all matter relating to the property within the knowledge/records of the local authority. It comprises three parts which are usually ordered together:

CON29: LA gives replies based on all its records as to various matters such as planning and building regulations, roads and public rights of way.

LLC1: register of local land charges such as payment of money or listed building status

Optional enquiries: These are usually only ticked in specific circumstances such as the commons search

Question 7

CON29 and CON29O

Answer 7

Con29:
- planning consents, refusals and completion notices
- building regulations
- roads and public rights of way (such as footpaths)
- environmental notices

CON29O:
- common land and town or village green
- road proposals by private bodies
- areas of outstanding natural beauty and national parks
- pipelines
- noise abatement zones

Question 8

LLC1

Answer 8

Local authority’s register of local land charges:

• 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 changes
• conservation areas
• listed building status

Question 9

Drainage and Water search

Answer 9

• relevant water service company
• checks connections to sewer and mains water supply

Question 10

Desktop environmental search

Answer 10

Based on historical records and will indicate if the property has been used for potentially contaminative land uses.

Also contains flooding information and susceptibility to natural subsidence

Question 11

Chancel repair

Answer 11

if it affects properties in parishes where there is a pre-reformation church.

After 13 Octover 2013 do not need to do bc no longer an overriding interest.

Question 12

Highways search

Answer 12

Con29 shows whether roads included in the search are adopted highways.
For most residential properties this will usually be sufficient.

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

Question 13

Mining searches

Answer 13

Coal (CON29M) - coal mining areas - risk of subsidence and whether compensation has already been paid.

Cheshire Salt search - subsidence

Tin, clay and limestone - tin mines in cornwall and somerset

Question 14

Environmental searches

Answer 14

Phase 1 - more detailed and includes site inspection

Phase 2 - where phase 1 indicates risk of contamination - samples are collected

Flood search - where property is known to have flooded in the past or desktop reveals flooding risk.

Question 15

Other searches

Answer 15

Utility providers - benefit of utility connections (electricity, gas, telecom, broadband etc)

Railways - where a railway passes near property - no standard search, have to reach out to relevant railway company

Waterways search - river/canal passing by. 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

Question 16

Standard form for pre-contract enquiries: commercial property

Answer 16

CPSE - commercial property standard enquiries

Question 17

Standard form for pre-contract enquiries: residential property

Answer 17

Property information form (TA6) - boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters

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

Question 18

“not so far as the seller is aware”

Answer 18

Phrase does not absolve the seller of responsibility if the answer should have been yes.

A seller who answers in this way can be taken to have made reasonable investigations in the matter.

Question 19

Searches relating to title/seller

Answer 19

• Index map search: unregistered, comprises of more than one title or the registered land is subject to mineral rights
• Mapsearch: 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 - unregistered land, against full names of sellers
• Bankruptcy search - usually only carries out when transaction is less than full market value

Companies Search - if the seller is a company then a company search should be made to check that the company is in existence

Question 20

Pre-contract enquiries

Answer 20

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

Residential: If the parties adopt the Law Society Conveyancing Protocol enquiries usually use the relevant TransAction form

Under the protocol the buyer’s solicitor should only add specific enquiries in limited circumstances

Question 21

CPSE

Answer 21

CPSE1: all commercial property transactions:
- responsibility for boundaries and their extent
- rights burdening and benefitting the property
- access to the property
- physical condition
- contents
- utilities and services
- planning and building regulations
- occupiers and employees
- notices and disputes
- VAT

CPSE2: Where property is subject to commercial tenancies

CPSE3: Applies on the grant of a new lease

Question 22

Residential property protocol forms

Answer 22

TA6: 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

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
- used where the property is a long leasehold

TA8: new home information
- used where the property has been newly built

Question 23

Raising additional enquiries: commercial

Answer 23

Buyer’s solicitor can raise whatever enquiries like wish in addition to follow up on issues raised in the title investigation, results and searches and, to expand on information given in standard enquiries.

But seller’s solicitor may decline to respond to enquiries they feel are irrelevant or would incur unnecessary time and expense to answer.

Question 24

Raising additional enquiries: residential

Answer 24

Residential transactions that follow the conveyancing protocol: solicitors 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.

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 surveyors report.

Question 25

Remedies for misrepresentation

Answer 25

Rescission or damages.
Most commercial and residential property contracts include standard conditions which limit the buyer’s ability to rescind the contract.

Error or omission only entitles buyer to rescind contract:
(a) where it results form fraud or recklessness or
(b) where the buyer would be obliged to his prejudice to accept a property differing substantially in quality, quantity or tenure from that which the error or omission had led it to expect

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

Question 26

What is the Law Society Conveyancing protocol?

Answer 26

• Set of steps to take when acting in the sale or purchase of a home for an owner-occupier
• Aims to make the conveyancing process more efficient and transparent to the benefit of the parties involved
• Voluntary but any solicitor or licensed conveyor can adopt it: but members of the Law Society’s Conveyancing Quality Scheme have to adopt the Protocol

Question 27

Can you use the Law Society Conveyancing protocol for new build homes?

Answer 27

No it is not appropriate for these.

Question 28

Law Society Conveyancing protocol and enquiries

Answer 28

• Buyer’s solicitor should only make enquiries that are essential to act in their client’s best interests
• Seller’s solicitor should confirm and update where necessary replies to enquiries if completed more than two months earlier
• Seller’s solicitor does not have to deal with any enquiries that do not comply with the Protocol
• 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

Question 29

Consequences of breaching the protocol

Answer 29

Solicitors who choose to adopt the Protocol or who are obliged agree:
- to comply with the terms; and
- act within the spirit of the Protocol

If breached: Law Society may require an explanation, potentially leading to their being monitored and even removed from membership of the Conveyancing Quality Scheme

Question 30

What do solicitors using the Law Society’s Conveyancing Protocol agree to adopt?

Answer 30

Standard Conditions of Sale
Code for Completion by Post
property forms
formulae for exchanging contracts