Pre- contract Searches and Enquiries Flashcards
Why are pre-contract searches and enquiries necessary?
‘Caveat emptor’ (buyer beware)
What does the principle of ‘caveat emptor’ mean and what is the impact of this on the Seller’s level of DISCLOSURE?
‘Buyer beware’ - buyer must take the property as they find it
Seller - very LIMITED duty of disclosure
What are the 2 exceptions to the principle of ‘caveat emptor’?
(1)
(a) Example 1
(b) Example 2
(2)
(1) MISREPRESENTATION
(a) Concealement of physical defects (e.g. painting over damp)
(b) Providing a misleading reply to QUERY raised (by buyer’s solicitor)
(2) LATENT INCUMBRANCES - Incumbrance NOT DISCOVERABLE on inspection (e.g. covenant)
Is the seller or buyer’s solicitor responsible for carrying out pre-contract searches / enquiries?
Buyer
What 6 pre-contract searches should be carried out by the buyer’s solicitor in REGISTERED LAND?
(1) Survey and personal inspection
(2) Pre-contract enquiries (form TA6)
(3) Local search (CON29 / LLC1)
(4) Water and drainage search
(5) Desktop environmental search
(6) Chancel repair search
What 8 pre-contract searches should be carried out by the buyer’s solicitor in UNREGISTERED LAND?
(1) Survey and personal inspection
(2) Pre-contract enquiries
(3) Local search (CON29 / LLC1)
(4) Water and drainage search
(5) Desktop environmental search
(6) Chancel repair search
(7) Index Map search
(8) Land Charges search (K15)
What type of survey is recommended for a buyer who:
(a) Has concerns about the condition of the property or plans to make alterations after purchase?
(b) Does NOT?
(a) Full structural survey
(b) Homebuyer report
(a) What type of survey will be REQUIRED by a lender?
(b) What are the limitations of this survey?
(a) Basic valuation
(b) Lender NOT buyer focused - only identifies obvious defects
What are 3 common examples of issues a buyer’s solicitor will raise in the ‘Pre-contract enquiries’ (form TA6) to the seller?
(1) Disputes with neighbours
(2) Any third parties occupying property
(3) Compliance with covenants
What 3 searches make up the Local Search and are they mandatory or discretionary?
(1) CON29 (mandatory)
(2) LLC1 (mandatory)
(3) CON29O (discretionary - normally commercial only)
(1) What do the results of the Local Search reveal?
(2) What are 4 examples of these?
(1) Matters known by / imposed by local authority
(2)
(a) Planning permissions granted
(b) Restrictions on development (e.g. Art 4 Directions), Conservation Area, Listed Buidling
(c) Land designated as contaminated (in PAST)
(d) Public or private road / plans for ‘Adoptioin’
What is the main limitation of the Local Search?
Will give no information on neighbouring property / land
(e.g. planning permission on a field next to the house)
(a) What is the purpose of the Water and Drainage search?
(b) Why could this be an issue for the buyer?
(a) Check the property is connected to a PUBLIC water supply and sewer
(b) If NOT, buyer could be liable for maintenance of sewer and costs of bringing them up to adoption standard if adopted by water authority
(1) What does the Desktop Environmental Search reveal?
(2) How is this different from Local Search?
(1) Likelihood of contamination in the FUTURE
(2) Designated as contaminated in PAST (by LA notices)
(a) What 2 searches provide information about the risk of flooding?
(b) When should the second search be used?
(a)
(1) Desktop environmental search
(2) Flood search
(b) Flood search - IF property by a river / coast
(1) What search should be carried out if a property is near / adjacent to a river or canal?
(2) What does this search show?
(1) Canal and River Trust Search
(2) Buyer’s liability to maintain / repair the waterways and banks
(1) What does a Chancel Repair Search show?
(2) Under what 2 circumstances is the search the most important?
(1) Liability for maintenance / repair of a Chancel in a church
(2)
(a) No transfer for value since 13 October 2013 (why? - overriding interest if pre then)
(b) Property near church
(1) What 2 searches give information regarding roads adjoining a property (e.g public vs private, cost of maintenance)
(2) When should the second search be used?
(1)
(a) Local Search (CON29)
(b) Highway Search
(2) Highway Search - land in private ownership between the property and highway. Local search NOT cover e.g. pavements
If the seller is a COMPANY, what search MUST be carried out?
Company Search
What are the 2 main pre-contract searches that should be carried out in unregistered land?
(1) Index Map Search
(2) Land Charges Search (K15)
(1) What 2 key pieces of information are revealed by an Index Map Search?
(2) Where is the search carried out?
(1)
(a) Land is registered / unregistered
(b) Caution against first registration (i.e. does another person have a claim to the property)
(2)
(a) Land Registry
Where is an interest in UNREGISTERED LAND registered at the Land Charges Registry, against what should it be registered against?
Owner of the land at the TIME
In UNREGISTERED LAND, what class of land charge is needed to make the following binding?
(1) Equitable easement
(2) Estate contract
(1) D(iii)
(2) C(iv)
(1) What is the purpose of a Land Charges Search (K15)
(2) Against whom is the search carried out and for how long?
(3) Is the search in exact dates or years?
(1) 3rd PARTY INTERESTS binding on Buyer?
(2) OWNER(s) FULL NAME - Period of OWNERSHIP
(3) Years
A conveyance in the Epitome of Title lists the FIRST estate owner as Emily Bronte from 16/04/1948 to 12/01/1990. When carrying out the Land Charges Search (K15):
(1) Who should the search be against?
(2) From what years?
(3) Explain your answer to (2) ?
(1) Emily Bronte
(2) 1926 to 1990
(3) Search back to 1926 when register began
In UNREGISTERED LAND, if the property has a mortgage will this be in the Land Charges Registry?
1st Mortgage - Deeds
2nd etc Mortgage - Land Charges Registry
