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Property Practice II > Pre-contract searches and enquiries > Flashcards

Pre-contract searches and enquiries Flashcards

1
Q

What is a report on title?

A

A report on title is the report in which a solicitor reports to its client on its investigation of title, search results and replies to enquiries.

Can take the form of a letter or standalone document.

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2
Q

Why do a report on title?

A

Buyer’s solicitor needs to find out as much as possible about a property before exchange of contracts. Caveat emptor means that once contracts are exchanged, in general the buyer has no means of objecting to any issues that arise.

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3
Q

How is a report on title done?

A

Buyer’s solicitor investigates title, raises searches and standard enquiries. If they identify any issues that require further information they may raise additional enquiries with the seller’s solicitor.

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4
Q

What will be identified in a report on title?

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

Will summarise and put into plain English for the client, the solicitor’s findings.

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5
Q

Typical contents page of a report on title

A
  1. interpretation
  2. Scope of the review and limitation of liability
  3. executive summary
  4. purchase price and other contract terms
  5. the property
  6. matters benefitting the property
  7. matters burdening the property
  8. search results
  9. relies to enquiries
  10. planning and building regulations
  11. insurance
  12. SDLT
  13. Conclusion
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6
Q

Scope of the report on title

A
  • Addressed to client and generally confidential to that client: should not be relied upon by anyone else
  • Report should state that it is based on reviewing the title documents, search results, planning documents and replies to enquiries
    Not solicitor’s fault if the report does not identify an issue that should have been revealed in a search by wasn’t
  • Report should set out limitations to the solicitor’s liability
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7
Q

Who carries out searches?

A
  • usually carried out by the buyer’s solicitor
  • seller’s solicitor might carry out searches, eg, if dividing land in plots to different buyers
  • Lender’s solicitor might carry out searches, particularly for a remortgage with no associated purchase
  • Searches usually submitted as early as possible, as some searches can take several weeks
  • Standard searches will always be necessary; optional searches will depend on the particular circumstances
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8
Q

Standard searches

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

Depending on title/seller
- land charges search (unregistered land)
- search of the index map (unregistered or registered land subject to mineral rights)
- companies search

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9
Q

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, crossrail or HS2
  • Waterways
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10
Q

National Land Information Search (NLIS)

A

Online portal to order searches. Different channel providers (Searchflow etc)

Acts as an intermediary between solicitors and various institutions.

Solicitor inputs address of property and sketch boundaries on an Ordnance Survey map.

Some searches are immediate but some take several weeks.

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11
Q

What is the local search?

A

Covers all matters relating to the property within the knowledge/records of the local authority. Comprises three parts:

  • Local Land Charges Search (LLC1): register of local land charges e.g. payment of money to bring road up to adoptable standard, listed building status etc.
  • Standard enquiries of the local authority (Form CON29): matters such as planning and building regulations, roads and public rights of way
  • Optional enquiries (Form CON29O: usually on ticked in specific circumstances - e.g. commons search
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12
Q

Local search - CON29

A

Replies to the standard enquiries of the local authority:
- planning permissions, refusals and completion notices
- building regulations
- roads and public rights of way (footpaths)
- Environmental notices (contaminated land notices)

Optional enquiries 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

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13
Q

Local search - LLC1

A

12 parts which reveal:
- planning permissions that have been granted
- planning enforcement or stop notices
- article 4 directions (restricting GPDO)
- tree preservation orders
- smoke control orders
- financial charges such as road-making charges
- conservation areas
- listed building status

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14
Q

Drainage and water search

A

Search checks matters such as whether foul and surface water from the property drain to a public sewer and whether the property is connected to a mains water supply.

Questions are submitted to the relevant water service company for the area e.g. Yorkshire water in York.

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15
Q

Desktop environmental search

A

Desktop search of environmental records and will look at if the property has been used for potentially contaminative land uses.

Contains information about the likelihood of flooding and susceptibility to natural subsidence and industrial uses within 250 metres.

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16
Q

Chancel repair

A

Should be run where there is a pre-Reformation church in the area.

If has one should get insurance.

After end of 2013 became registrable.

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17
Q

Highways search

A

Local search will show whether roads included in the search are adopted highways (maintained by the local authority).

For most residential properties, usually sufficient.

Will show boundary of the highway on a map. If the 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.

18
Q

Mineral searches

A

Coal mining: if in an area affected by coal mining - check. Will id risks of subsidence and if compensation has been paid.

Cheshire salt search: brine subsidence and if comp has been paid.

Tin, clay and limestone: similar coal and salt - areas of Cornwall and Somerset

19
Q

Environmental searches

A

Run if desktop shows risks:

Phase 1: more detailed and includes site inspection

Phase 2: taken where phase 1 indicates risk. Soil/water sampled are tested to indicate whether there is contamination or not

Flood: where property is known to have flooded in the past. Foes into more detail than the environmental desktop search

20
Q

Miscellaneous searches - utility, railway, waterways

A

Utility: used for a new development or site, check property has benefit of utility connections

Railways: where railway passes near a property or property may be within proximity. No standard search but check with each rail

Waterways: If property has a river or canal near it - shows liability for maintaining river bank or canal, rights of way for banks or two paths, drainage and fishing rights and liability for flooding.

21
Q

Pre-contract enquiries

A

Standard Commercial: CPSE1
Commercial property standard enquiries

Residential:
- Property info form TA6: info about boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility metres

  • Fittings and contents form (TA10): items that are included or not in the such as curtains, light fittings, carpets etc.
22
Q

Additional enquiries

A

Buyer’s solicitor will typically raise additional enquiries on specific issues from the investigation of title, search results or standard replies.

May bounce back and forth a number of times until satisfied.

Note: seller cannot deliberately mislead the buyer by concealing defects or answering enquiries dishonestly. Misleading statement may give rise to an action in misrepresentation.

23
Q

Searches relating to title/seller

A

Index Map search (SIM): where property is unregistered or comprises more than one title or title refers to mineral rights. Shows extent of registered titles and unregistered land within the area searched.

MapSearch: Land Registry portal contains a free searchable map of registered titles. Useful reference tool but no guarantee.

Central Land Charges Search (K15): if unregistered carried out against full names of seller and previous owners.

Bankruptcy Search (K16): only carried out if sale is not a full market value.

Companies search: If seller is a company then a company search should be made to check that the company is in existence and has not gone into liquidation or been dissolved. Also shows any security interests which have been given.

24
Q

12 parts of the LLC1

A

1 - General financial charges

2 - specific financial charges

3- planning charges
+ planning permissions granted
+ conservation area
+ tree preservation order

4- miscellaneous charges
+ smoke control order

5- Fenland ways maintenance charges

6 - Land compensation charges

7 - New towns charges

8 - Civil aviation charges

9 - Opencast coal charges

10 - Listed buildings charges

11 - Light obstruction notices

12 - Drainage scheme charges

25
Q

Planning permission CON29 and LLC1

A

LLC1: what planning permissions there have been

CON29: what planning permission requested, granted, refused and any pending applications
- building regs approvals and certificates

26
Q

CON29

A

CON29: what planning permission requested, granted, refused and any pending applications
- building regs approvals and certificates
- roadways: adjacent roads and adoption plans (not highway search shows exact boundary)
- notices served regarding contaminated land

  • public footpaths
27
Q

CON29O

A

Additional enquiries cost more money

Only raise if relevant to property

  • road proposals by private bodies
  • advertisements
  • completion notices
  • parks and countryside
  • pipelines
  • houses in multiple occupation
  • noise abatement
  • urban development areas
  • enterprise zones, local development orders
  • inner urban improvement areas
  • simplified planning zones
  • land maintenance notices
  • mineral consultation and safeguarding areas
  • hazardous substance consents
  • environmental and pollution notices
  • food safety notices
  • hedgerow notices
  • flood defence and land drainage
  • common land and town or village green
28
Q

Where would you expect to find out whether a public footpath crosses a property?

A

The Local Authority Search Result (CON29).

29
Q

Why raise pre-contract enquiries?

A
  • caveat emptor: onus is on the buyer to find out as much information as possible
  • seller usually knows information about the property that is not available in public records or on inspection
  • seller can face liability for incorrect answers
  • if the seller does not actual knowledge of the property then they may decline to give replies.
30
Q

Commercial property standard enquiries

A

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

CPSE2: applies where the property is subject to commercial tenancies

CPSE3: Applies on the grant of a new lease

CPSE4-6: Applies to specific other circumstances

31
Q

Residential property enquiry forms

A

TA6: always used
- boundaries
- rights benefiting and burdening the property
- disputes, complaints and notices
- alterations
- planning and building regulations
- occupiers
- services and utilities
- energy efficiency

TA10: always used
- fittings and contents included in the sale or may buy

TA7: used where the property is a long leasehold

TA8: used where the property has been newly built

32
Q

Additional enquiries

A

Commercial: can ask whatever they like

Residential: conveyancing protocol - buyer’s solicitor may only raise additional enquiries to clarify issues arising out of the documents provided - relevant to title, existing or planned use, nature of location of the property.
Should not ask about state and condition unless arising out of the search results, standard replies, inspection or surveyors report.

33
Q

What if replies are wrong

A

Will have made a misrepresentation.

If the buyer relies on this and suffers a loss the buyer could have an action against the seller in misrepresentation.

Seller cannot deliberately mislead the buyer by concealing physical defects or answering enquiries dishonestly.

Saying ‘not so far as the seller is aware’ implies reasonable investigation has taken place so care should be taken. If unable to investigate, seller should state this in their reply.
Includes making reasonable efforts to check records and speaking to the appropriate people in the organisation.

34
Q

Limiting responsibility for incorrect replies

A

Remedies for misrepresentation are rescission or damages.

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

An error or omission on entitles the buyer to rescind the contract:
(a) where it results from fraud or recklessness
(b) where the buyer would be obliged to his prejudice to accept a property differing substantially 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.

35
Q

Replies when acting for seller

A

Residential: usually passes on enquiries to client as these are more user friendly. But should still check answers and make sure nothing incorrect or incomplete.

CPSE: complex and solicitor may need to assist in filling these out. Check CPSE against title. Make sure client approves the answers before selling.

36
Q

Law society conveyancing protocol

A
  • aims to make the conveyancing process more efficient and transparent to the benefit of all parties involved.
  • a set of steps to take when acting in the sale or purchase of a home for an owner-occupier
  • Protocol is not appropriate for new build homes
  • Transparency means sharing information to assist the progress of the transaction
  • Protocol is voluntary but any solicitor or licensed conveyancer can adopt the protocol (but must do it if part of the Law Society’s Conveyancing Quality Scheme)
37
Q

Protocol: enquiries

A

Buyer’s solicitor:
- should only make enquiries that are essential to act in their client’s best interest

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 enquiries that do not comply with protocol

38
Q

Enquiries: breaching protocol

A

May breach if:
- use non standard enquiries
- raise enquiries that seek the seller’s opinion rather than fact

39
Q

Consequences of breaching protocol

A

Solicitors who adopt the protocol agree:
- to comply with its terms; and
- act within the spirit of the protocol

If a solicitor breaches protocol then the Law Society may require an explanation, potentially leading to their being monitored or removed from the Conveyancing Quality Scheme

40
Q

What do solicitors using the code agree to adopt?

A
  • Standard Conditions of Sale (incorporated into the contract)
  • Property Forms
  • Formulae for exchange
  • Code for Completion by Post

Property Practice II (12 decks)

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