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Property Practice (FLK2) > Pre-contract searches and enquiries > Flashcards

Pre-contract searches and enquiries Flashcards

1
Q

What is a report on title and what does it identify?

A

The report in which a solicitor reports to its client on its investigation of title, search results and replies to enquiries. It can take the form of a letter or a standalone document. It is prepared before exchange of contracts.

It will identify:

-Material facts in respect of the property
-Issues and their implications
-Solutions available

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2
Q

Who usually carries out pre-contract searches?

A

Usually carried out by the buyer’s solicitor. They will usually be submitted as early as possible as some searches can take several weeks.

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3
Q

What are the three parts of the local search and what does the local search cover?

A

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

-Standard enquiries of local authority (Form CON29)

-Optional enquiries (CON29O)

-Local Land Charges Search (LLC1)

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4
Q

What do replies to Form CON29 enquiries reveal?

A

Replies to these enquiries will reveal information about the property and its immediate surroundings, such as:

-planning permissions, refusals and completion notices
-building regulations
-roads and public rights of way
-environmental notices

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5
Q

What do replies to Form CON29O enquiries reveal?

A

These will include:

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

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6
Q

What is a Local Land Charges (LLC1) search?

A

This is a search of the local authority’s register of local land charges. There are 12 parts to the land charges register which will reveal matters such as:

-planning permissions that have been granted
-planning enforcement or stop notices
-TPOs
-smoke control orders
-conservation areas
-listed building status

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7
Q

What is a drainage and water search?

A

These will be dealt with by the relevant water service company for the area. The search checks matter such as whether foul and surface water from the property drain to a public sewer, and whether property is connected to a mains water supply.

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8
Q

What is a desktop environmental search?

A

This should always be considered as an owner may be liable for the costs of cleaning up contaminated land. It also contains information on the likelihood of flooding and susceptibility to natural subsidence.

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9
Q

What is a chancel repair search?

A

This affects properties in parishes where there is a pre-Reformation church. Responsibility for repair of the church roof is shared between the church and the parishioners.

If the search shows potential for liability, indemnity insurance is readily available to cover the risk.

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10
Q

What is a highways search?

A

An optional search that is carried out where there is doubt about adopted highways.

The search shows the boundary of the public highway on a map.

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11
Q

What is a mining search?

A

A coal mining search may be necessary if the area falls within an appropriate area. The search will identify the risk of subsidence and any compensation already paid.

A Cheshire Salt search may be appropriate in parts of Cheshire.

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12
Q

What does an Environmental Phase 1 survey consist of?

A

A site inspection of the property to determine its ecological nature.

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13
Q

What is an Environmental Phase 2 survey?

A

A detailed investigation into the potential presence of hazardous materials or environmental contamination in the subsurface of a property.

If a Phase 1 study indicates risk of contamination, this should be taken.

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14
Q

What is a flood search?

A

An environmental search carried out against a property known to have flooded in the past.

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15
Q

What is a waterways search?

A

A search carried out where the property is near a waterway as there may be liability for maintenance of river bank.

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16
Q

What are the standard replies to commercial property enquiries known as?

A

CPSE1 (Commercial Property Standard Enquiries).

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17
Q

What are the standard replies to residential property enquiries known as?

A

The standard forms are Form TA6 for property information and Form TA10 for fittings and contents.

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18
Q

Will the phrase “not so far as the seller is aware” absolve the seller of responsibility if the answer should have been “yes”?

A

No, it does not absolve them of responsibility but a seller who answers this way can be taken to have made reasonable investigations in the matter.

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19
Q

What is the meaning of development?

A

Development means carrying out of certain building works on land or a material change of use of the land: s65, Town and Country Planning Act 1990.

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20
Q

What are the exceptions to the rule that planning permission is needed wherever there is development on land?

A

-Building works that only affect the interior of the building; or

-Building works that do not materially affect the external experience of the building; or

-Changes of use that are within the same use class (s3(1), Town and Country Planning (Use Classes) Order 1987)

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21
Q

Does change from one use class to another require planning permission?

A

Yes, a change from one use class to another, such as C3 to C1 or C3 to B2, requires planning permission.

22
Q

What are the use classes defined in the Town and Country Planning (Use Classes) Order 1987

A

B2: General industrial

C1: Hotels

C2: Residential institutions

C3: Dwelling houses

E: Commercial, business and service

F1: Learning and non-residential institutions

F2: Local community

23
Q

What are the sui generis uses?

A

Sui generis examples include theatres, amusement arcades, fuel stations, pubs/nightclubs and concerts halls.

24
Q

What does the Town and Country Planning (General Permitted Development) Order 2015 (GDPO) allow?

A

It allows certain development without planning permission.

Permitted development will need to fall within the conditions set out otherwise planning permission will be needed.

25
Q

How can the GDPO 2015 be excluded or amended in a locality?

A

By an Article 4 direction, in which case the proposed development will need planning permission.

26
Q

What is a certificate of lawfulness in relation to the GDPO 2015?

A

If unsure whether a development falls within the GDPO, it is possible to apply for a certificate of lawfulness which confirms that the work does not constitute “development” or if it does, it falls within the GDPO.

27
Q

What are listed buildings and how are they graded?

A

Buildings that are of special architectural or historic interest and are graded as follows:

-Grade I are buildings of exceptional interest eg Tower Bridge

-Grade II* are particularly important buildings of more than special interest eg Battersea Power Station

-Grade II are of special interest eg Adelphi Hotel, Liverpool

28
Q

What are conservation areas?

A

Areas of special historic or architectural interest, the character or appearance of which is desirable to preserve or enhance.

29
Q

What are the effects of a conservation area?

A

-The GDPO will be restricted, so changes to external appearance may require planning permission

-Planning permission is needed to demolish an unlisted building with a conservation area

-Consent is needed to cut back or cut down trees

30
Q

What did the Building Act 1984 create?

A

It created a statutory system under which building regulations are created and adapted using secondary legislation.

31
Q

What constitutes building work under the Building Act 1984?

A

-Erection or extension of a building

-Installation or extension of a service or fitting that is controlled under Building Regulations eg windows, boilers

-Work required where there is a material change of use of the whole building

32
Q

When will a breach of planning control occur?

A

-When a development has taken place without planning permission; or

-A condition or limitation of planning permission has been breached

33
Q

Who is enforcement for breaches of planning permission brought against?

A

Enforcement is against the current land owner, not the person who caused the breach.

34
Q

What is an enforcement notice for breach of planning permission and what notice period is required?

A

Local authority gives 28 days’ notice that:

-land must be restored to condition it was in; or
-comply with any conditions or limitations imposed by planning permission

After 28 days, land owner may be fined and the local authority can enter the land to carry out the work and recover expenses.

35
Q

What is a stop notice for breach of planning and when is it used?

A

Only after an enforcement notice-requires that specified activity to stop immediately

Cannot prohibit use as a dwelling house or any activity that has been carried out for more than four years.

36
Q

What is a breach of planning condition notice?

A

Similar to an enforcement notice, but only concerned with breach of conditions or limitations to planning permission.

37
Q

What is the enforcement time limit for building works/change of use into a single dwelling house before 25 April 2024?

A

4 years.

Building works-starting with the date on which the works were “substantially completed”.

38
Q

What is the enforcement time limit for other changes of use/breach of planning condition before 25 April 2024?

A

10 years.

39
Q

What is the enforcement time limit for all planning breaches committed after 25 April 2024?

A

Limitation is now 10 years for all planning breaches.

40
Q

What can the local authority do if a breach of planning control has been deliberately concealed, refer to Fidler v SoS for Communities and Local Government (2010)?

A

The local authority can apply to a magistrates’ court for a planning enforcement order.

Fidler v Secretary of State for Communities and Local Government (2010): a landowner built a house without planning permission, and concealed it behind bales of straw. He waited 4 years to elapse and then revealed the house. The 4 year period was held to run from the date on which the bales were removed.

41
Q

What is the time limit for prosecution for breach of building regulations in Wales?

A

Local authority has 6 months after discovering breach to prosecute the person responsible in the Magistrates Court.

Prosecution may take place up to 2 years after completion of the building work.

42
Q

What is the time limit to serve an enforcement notice for breach of building regulations in Wales?

A

Local authority has one year after completion of the building work to serve. Gives land owner 28 days to alter or remove work.

43
Q

What is the time limit to apply for an injunction for breach of building regulations in Wales?

A

Local authority can apply to the Court for an injunction. There is no time limit if the work is unsafe.

44
Q

What is the time limit for prosecution for breach of building regulations in England?

A

Local authority has unlimited time to prosecute the person responsible in the Magistrates Court.

45
Q

What is the time limit to serve an enforcement notice for breach of building regulations in England?

A

Local authority has ten years after completion of the building work to serve. Gives land owner 28 days to alter or remove work.

46
Q

What is the time limit to apply for an injunction for breach of building regulations in England?

A

Local authority can apply to the Court for an injunction. There is no time limit if the work is unsafe.

47
Q

What is the purpose of the Law Society Conveyancing Protocol (LSCP)?

A

The Protocol is applicable only to conveyancing transactions. It is designed to make the conveyancing process more efficient and transparent.

48
Q

Under the LSCP, when should the seller’s solicitor provide replies to enquires?

A

The seller’s solicitor should confirm and update, where necessary, replies to enquiries if completed more than two months earlier.

49
Q

When may a solicitor breach the LSCP?

A

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

50
Q

What are the consequences if a solicitor breaches the LSCP?

A

The Law Society may require an explanation which could lead to their monitoring and even removal from membership of the Conveyancing Quality Scheme.

Property Practice (FLK2) (11 decks)

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