Pre-contract searches and enquiries

Question 1

What is the report on title?

Answer 1

Report in which buyer’s solicitor reports to its clients on its investigation of title, search results and replies to enquiries - can take the form of a letter or a standalone document.

Question 2

What are the standard searches that should be undertaken in every purchase?

Answer 2

Local search (CON29 enquiries of the local authority and LLC1 search of local land charges).

Drainage and water enquiries.

Desktop environmental search.

Chancel repair liability.

Question 3

What searches should be undertaken depending on the title and seller?

Answer 3

Land charges search for unregistered and.

Search of the index map for unregistered or registered land subject to mineral rights.

Companies search.

Question 4

What will replies to the the standard enquiries of the local authority (CON29) search show?

Answer 4

Information about pottery and its immediate surroundings, e.g. planning permissions, refusals and completion notices;

Building regulations;

Roads and public rights of way;

Environmental Notices - including contaminated land notices.

Question 5

What optional enquiries may be revealed by CON290 in the local search?

Answer 5

If there is common and and town/village green;
Road proposals by private bodies;
Areas of outstanding natural beauty and national parks;
Pipelines;
Noise abatement zones.

Question 6

What is the local land charges search (LLC1)?

Answer 6

A search of the local authority’s register of local land charges. Reveals e.g. planning permissions granted, tree preservation orders, conservation areas.

Question 7

What are drainage and water searches?

Answer 7

Dealt with by relevant water service company for the area.

Checks whether there is drainage to a public sewer, and if property is connected to mains water supply.

Question 8

What is the chancel repair search?

Answer 8

Checks if there’s responsibility for the repair of the church roof.

Question 9

What will be in the desktop environmental search?

Answer 9

based on historical records, indicates if property has been used for potentially contaminative land used. Likelihoodf of flooding, industrial land uses within 250 m of property.

Question 10

What are the additional environmental searches/surveys?

Answer 10

Environmental Phase 1 Survey - includes site inspection, more detailed than desktop.

EP2 Survey - will be taken where P1 indicates risk of contamination - soil and water samples are tested to see if there is contamination or not.

Flood - taken where property is known to have flooded in the past.

Question 11

What searches are there that relate to title/seller?

Answer 11

INDEX MAP SEARCH (SIM): Where property is unregistered or registered title refers to mineral rights.

MAPSEARCH: Free searchable map or registered titles.

CENTRAL LAND CHARGE FORM (K15): Unregistered - search against full names of seller and all previous owners in epitome or title.

BANKRUPTCY (K16): Usually only carried out against seller if T is not at full market value. Also carried out against a buyer taking a mortgage.

COMPANIES SEARCH: If seller is a company, check that it is existence and hasn’t gone into liquidation. Also shows security interests that the company has given.

Question 12

When is planning permission needed?

Answer 12

When there is a development on land, unless it falls into certain exceptions like building works that only affect the interior of the building, building works that do not materially affect the external appearance of the building, or changes of use that are within the same use class.

Question 13

What are the use classes?

Answer 13

Examples:
B2 General Industrial
C1 Hotels
C3 Dwelling Houses.

Question 14

What is ‘sui generis’ use?

Answer 14

This is not a use class - it is miscellaneous and includes theatres, fuel stations, pubs, concert halls - any change to or from that use will require planning permission.

Question 15

What is the Town and Country Planning (General Permitted Development) Order 2015?

Answer 15

It allows certain development without planning permission.

It can be excluded or amended by a locality by an Article 4 direction. Enquire of the local authority to see if the GDPO has been excluded.

If you are unsure, you can apply for a certificate of lawfulness to confirm that work does not constitute development, or falls within the GDPO.

Question 16

What do the Building Regulations 2010 apply to?

Answer 16

Erection, extension of a building, installation, extension of a service or fitting controlled under BR 2010; Work required where there is a material change of use of the whole building.

Question 17

Building regulations consent and approval?

Answer 17

When you want to carry out building work under the regulations, you first need to obtain building regulations consent. This is separate from planning permission.

Some things have self-certification schemes, like window installers can be registered with FENSA. This certificate is then lodged with the building control department of the local authority. Once lodged it will appear in a local search of the property.

Question 18

When is there a breach of planning control?

Answer 18

Development has taken place without planning permission, or a condition or limitation of planning permission has been breached.

Question 19

What are the local authority’s enforcement options if there has been a breach of planning control?

Answer 19

1. Enforcement notice: LA gives 28 days notice that land must be restored to condition it was in before unauthorised development, or it complies with any conditions or limitations imposed by planning permission, or after 28 days the landowner may be fined and the LA can enter the land to carry out the work, recovering its expenses from the Land Owner.
2. Stop notice: Can only serve after serving an enforcement notice. It requires that specified activity stop immediately. Cannot prohibit use as a dwelling house, or any activity that has been carried out for more than four years.
3. Breach of condition notice: Similar to enforcement notice, only concerned with breach of conditions or limitations to planning permission.
4. Injunction: LA Can apply to court for an injunction, but it is discretionary and LA needs to show good reason.

Question 20

What are the time limits for local authority to take enforcement action for planning controls breach (pre and post April 2024)?

Answer 20

Work completed before 25 April 2024 = four years for building works, starting on date they were substantially completed, and change of use to single dwelling house/
= ten years for other changes of use and breach of planning condition.

Work completed after 25 April 2024
= ten years for all building works and changes of use.

Question 21

Can the local authority enforce when the enforcement time limits have run out?

Answer 21

Where a breach of planning control has been deliberately concealed, they can apply to the Magistrates Court for a planning enforcement order.

Question 22

What are the enforcement options and time limits for the local authority when there has been a breach of building regulations?

Answer 22

1. Prosecution - there is no Time limit for this (in Wales there still is).
2. Enforcement notice: LA has ten years in England after completion of the building work to serve an enforcement notice. Gives land owner a specific time to alter or remove the work. IF owner fails to comply, the LA can undertake the work at the owners expense.
3. Injunction: Can apply to court. No time limit if the work is unsafe.

Question 23

How should the buyer’s solicitor check for compliance with planning law and building regulations?

Answer 23

Local search for planning permissions, building reg consent and approval, enforcement action, GDPO and Article 4, conservation area and 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.

Buyers survey- may reveal work that is not mentioned in replies to enquiries.

Question 24

What pre-contract enquiries are used for commercial and residential transactions?

Answer 24

Commercial - Commercial Property Standard Enquiries

Residential - If using the Law Society Conveyancing Protocol, enquiries usually use the relevant TransAction form

Question 25

What do the Commercial Property Standard Enquiries cover?

Answer 25

CPSE1: Responsibility for boundaries and their extent, rights benefitting and burdening, physical condition, contents, utilities, VAT treatment etc.

CPSE2: Applies where property is subject to commercial tenacious

CPSE3: Applies on the grant of a new lease

CPSE4-6: Apples to other specific circumstances.

Question 26

What residential property protocol forms are used?

Answer 26

The TA6 Property information form is always used - it covers matters like boundaries, rights benefitting and burdening, disputes, alterations, planning and building regulations, occupiers, service and utilities, energy efficiency.

TA10 fittings and contents form is always used - it identifies any fittings and contents included or excluded in the sale.

TA7 Leasehold Information form is used where the property is a long leasehold.

TA8 New Home Information form used where property newly built.

Question 27

What is the replies are wrong?

Answer 27

Misrepresentation is when the seller misrepresents a fact and buyer relies on this and suffers loss.

Most commercial and residential contracts include standard conditions which limit the buyer’s ability to rescind the contract. (usually to only rescind where it results from fraud of recklessness, or where the buyer would be obliged to accept a property fingerling substantially from that which the error had led it to expect.