Pre-Contract Searches and Enquiries Flashcards
What is the report on title?
A report that the buyer’s solicitor compiles for its client on the investigation of title, search results, and replies to any enquiries about the property
Should identify material facts in respect of the property, issues and their implications, and any solutions available
List as many of the things that would be included in a typical report on title as possible
Interpretation
Scope of review, limitation of liability
Executive summary
Purchase price and other contract terms
The Property
Matters benefitting Property / matters burdening property
Search results
Replies to enquiries
Planning and building regulations
Insurance
SDLT
Summary
Who can use the report on title?
Only client - strictly confidential
Who carries out pre-contract searches?
Generally, buyer’s solicitor
Sometimes lender’s solicitor may do - example, remortgage, with no associated purchase
What are the two main categories of searches?
Standard searches - always needed
Optional searches - depends on particular circumstances
**
What kind of searches depend on the type of seller / title?
Land Charges - unregistered land
Index map search
Companies House search
How are searches conducted?
Online portal; National Land Information Service
Solicitor should register with a specific service provider and put the address in, and the boundaries of an OS Map
What does the “local search” constitute? Which elements are mandatory versus compulsory?
Standard enquiries of the local authority - CON29 - always
Local Land Charges Search - LLC1 - always
Optional additional enquiries - CON29O - sometimes
What will the CON29 form reveal?
Planning permissions, refusals and completion notices
Building regulations
Roads and public rights of way
Environmental Notices
What are common examples of enquiries on the CON29O?
Common land / town / village green
Road proposals by private bodies
AONBs and national parks
Pipelines
Noise abatement zones
What will a LLC1 form often reveal?
Planning permissions which have been granted
Planning enforcement or stop notices
Article 4 directions (restricting the GPDO)
Tree preservation orders
Smoke control orders
Financial charges such as road-making charges
Conservation areas
Listed building status
What changes are currently being made to the Local Land Charges Registers?
Slow phased transfer of responsibility from local authorities to Land Registry
Either make local land charges search at Land Registry or Land Charges Registry, depending
What form should be used for Drainage and water search?
CON29DW
What does a desktop environmental search reveal?
Will show if the property has been used for potentially contaminative land uses
Likelihood of flooding / subsidence / industrial land uses 250m from the property
What would be the appropriate search to do if a desktop environmental search reveals some contamination?
Phase 1 / Phase 2 search
What does church chancel repair search reveal?
If Property is in a parish where there is a pre-Reformation Church
What does a Highways Search reveal? When is it needed?
If roads included in the search are adopted highway
Not often needed for residential properties, but for large scale commercial ones might be necessary to confirm there are appropriate additional rights of access
What does a coal mining search show?
Property in an area subject to mining, risk of subsidence, and whether any compensation has already been paid (would prevent further compensation).
What does Cheshire Salt search show?
Brine subsidence risk
Similar to coal mining search
What does tin / clay / limestone search show?
Specific mineral search - dependent on area
What does an Environmental Phase 1 survey show?
More detailed inspection than desktop - site inspection
What does an Environmental Phase 2 survey show?
Phase 1 survey shows risk of contamination - soil / water samples tested
When should a utility providers search be made?
When a property is a new development or a site for development
When / how should a railways search be made?
No standard search - have to enquire after each railway service
When should a waterways search be used?
Shows liability for maintenance of river bank / canal / rights of way for banks / tow paths / drainage and fishing rights
DO NOT use to assess flood risk
When will a seller provide replies to standard enquiries?
At the beginning of a transaction
What are standard replies known as in commercial transactions?
CPSE1 - Commercial Property Standard Enquiries
What are standard replies known as in residential transactions?
TA 6 - Property Information Form
TA 10 - Fittings and contents form
How truthful must a seller be when answering enquiries?
Cannot deliberately mislead buyer - could lead to an action in misrepresentation
Can decline to answer enquiries if they have no knowledge of the property
What is the effect of the phrase ‘not so far as the seller is aware’ in a response to enquiries?
Does not absolve the seller of responsibility if the answer should have been yes
A seller who answers like this can be taken to have made reasonable investigations into the matter
What searches might you make relating to title or seller?
Index map search (SIM)
MapSearch
Central Land Charge Search - Form K15
Bankruptcy Search
Companies House Search
What does a SIM show and when might you need to use it?
If property is unregistered / has more than one title - SIM search shows the extent of registered titles and unregistered land. Does not show ownership but useful to show boundaries.
Result is guaranteed
What does MapSearch show you?
Land Registry search portal tool of registered titles
Result is not guaranteed.
What does the Central Land Charge Search show?
Unregistered land - looks for land charges against all owners of property in epitome of title
When should a bankruptcy search be carried out?
Carried out against seller when transaction is not at full market value
What would a companies search show?
Company exists and any security interests that have been given
Which search gives the best results for planning permissions?
CON29, as opposed to the LLC1 - gives more details about pending / delayed / denied planning permission applications.
When is planning permission needed?
Whenever there is development on land -
development = carrying out of certain building works on land or a material change of use of the land
What are the exceptions where no planning permission is required?
Interior only building works
Building works that do not materially affect the external appearance of the building
Material changes of use that are within the same use class
When will a change in use class need planning permission, and when will it not?
Yes - change from one class to another
Yes - changing from a sui generis class
No - changes within class
Give examples of sui generis use classes
- Theatres
- Amusement arcades
- Launderettes
- Fuel stations
- Pubs and nightclubs
- Takeaways where food is mostly consumed off the premises
- Concert halls
What is the effect of a Town and Country Planning (GDPO) Order 2015?
Acts as a general planning permission which allows certain development without planning permission
How can the GDPO be excluded or amended?
Article 4 direction
How can you find out whether GDPO has been excluded or not?
Part of the local search
What should you do if you are not sure whether a development falls within the GDPO or not?
Apply for a certificate of lawfulness - confirms whether work constitutes ‘development’ or not, or if it is development, if it does not need planning permission thanks to the GDPO
When are planning rules stricter?
Listed buildings
Conservation areas
What do you need to demolish / alter a listed building?
Listed building consent
What is a conservation area?
- Areas of special historic or architectural interest - character / appearance of which is desirable to preserve or enhance
What is the effect of a conservation area?
- The GPDO will be restricted – changes to external appearance may require planning permission
- In England - planning permission needed to demolish an unlisted building within a conservation area
- Wales - Conservation area consent needed to demolish an unlisted building
- Consent needed to cut back / cut down trees
What will you need to acquire before carrying out work covered by building regulations?
Building regulations consent
Certificate of compliance, issued by a building control inspector
Self-certification schemes can exist
What do the Building Regulations 2010 apply to?
- Erection or extension of a building
- Installation or extension of a serve of fitting that is controlled under the Building Regulations
- Work required where there is a material change of use of the whole building
When has planning permission been breached?
- Development has taken place without planning permission
- Condition / limitation of planning permission has been breached
How must a buyer’s solicitor be cautious regarding breaches of planning permission?
Must check as any breaches of planning permission are enforceable against the current landowner - not the person who caused the breach
In order, what options does a local authority have to enforce a breach of planning permission?
Enforcement notice
Stop notice
Breach of condition notice
Injunction
What is the effect of a local authority issuing an enforcement notice?
Gives owner 28 days to restore land to original condition, or comply with any conditions / limitations imposed by planning permission
After 28 days, landowner can be find, LA can enter land to carry out the work, and recover expenses from the land owner
What is the effect of a local authority issuing a stop notice?
Once an enforcement notice has been issued - a stop notice requires that a specified activity e.g. unauthorised use stop immediately
Can’t prohibit use as a dwelling house or restrict any activity that has been carried out for more than four years
What is the effect of a breach of condition notice?
Same as an enforcement notice, but only concerned with breach of conditions / limitations to planning permission
What final remedy does a local authority have?
Apply to court for an injunction - discretionary, and must show good reason.
What are the pre- 25 April 2024 enforcement time limits for planning permission?
4 years for building works - starting with the date on which building works were substantially completed
4 years for change of use to a single dwelling house - starting with date on which use began
10 years for other changes of use, breach of planning condition
What are the post- 25 April 2024 enforcement time limits for planning permission?
10 years for all breaches
Can the local authority enforce a planning permission outside time limits for planning permission?
Yes - can apply to the magistrates’ court for a planning enforcement order, if a breach has been deliberately concealed
What enforcement options exist for breach of building regulations in Wales?
Prosecution: LA has 6 months after discovering a breach to prosecute the person responsible in MC. Unlimited fines can be imposed. Can take place up to 2 years after completion of work.
Enforcement notice: 1 year to serve, gives landowner 28 days to alter / remove violation.
Injunction - if work is unsafe, no time limit applies here.
What enforcement options exist for breach of building regulations in England?
Prosecution: LA has unlimited time to prosecute person responsible for breach in MC
Enforcement notice: LA has 10 years after completion of the building work to serve an enforcement notice
Injunction: If work is unsafe
What options does a buyer have available when discovering a breach of planning or building regulations?
Withdraw from transaction - drastic
Obtain indemnity insurance - usually at seller’s expense - only covers financial loss for enforcement; no cover re health + safety + claims for PI / death
Invite seller to regularise matters pre completion:
- Seller could get retrospective planning permission
- Regularisation certificate for works
Which form should commercial property enquiries be on?
Commercial Property Standard Enquiries form
Any specific enquiries tacked on
Which form should residential property enquiries be on?
Law Society Conveyancing Protocol - TransAction form
Buyer’s solicitor should only add any specific enquiries here in limited circumstances
What does CPSE1 include?
Responsibility for boundaries and their extent
Rights
Access
physical condition
contents
utilities and services
planning and building regulations
occupiers and employees
notices and disputes
VAT
When is CPSE2 used?
Where property is subject to commercial tenancies
When is CPSE3 used?
Grant of a new commercial lease
Which forms are always used for residential property enquiries? What do they include?
TA6 - Property Information Form
Boundaries
Rights
Disputes
Alterations
Planning and building regs
Occupiers
Services and utilities
Energy efficiency
TA10 - Fittings and contents form
Which forms are sometimes used for residential property enquiries? What do they include?
TA7 - Leasehold information form - used if property is a long leasehold
TA8 - New home information form
What is the difference between ability to raise additional enquiries in commercial transactions versus residential ones?
- Commercial transactions: buyer’s solicitor can raise whatever enquiries they like seller’s solicitor may decline to respond to enquiries they feel are irrelevant, would incur too much time, etc
- Residential transactions: buyer’s solicitor may only raise additional enquiries to clarify issues arising out of the documents provided or which are relevant to title, existing or planned use, nature or location of the property
- Should NOT raise enquiries about:
o State and condition of building
o Standard replies to enquiries
o Inspection of their surveyor’s report
How do solicitors often limit responsibility for incorrect replies to pre-contract enquiries?
Standard conditions which limit buyer’s ability to rescind the contract
What must a seller’s solicitor consider regarding CPSEs?
Work alongside client to answer questions
Check replies against any information you already have
Careful with stock answers - check client approves before sending
What are the aims of the Law Society Conveyancing Protocol?
- Make conveyancing process more efficient and transparent to the benefit of all parties in volved
- Set of steps to take when acting in sale or purchase of a home for an owner / occupier
- Not appropriate for new build homes
- Voluntary – can be adopted by anyone
- Transparency remains subject to client confidentiality
- Solicitors who are members of Law Society’s Conveyancing Quality Scheme - must adopt Protocol and undergo specific training
What is the key feature of the Law Society Conveyancing Protocol?
Buyer’s solicitor should only make enquiries that are essential to act in their client’s best interests
When might a solicitor breach the Law Society Conveyancing Protocol?
Use non-protocol standard enquiries indiscriminately
Raise enquiries that seek seller’s opinion, not facts
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
Breaching Protocol
If you adopt Protocol obliged to comply with terms and act within the spirit of the Protocol
Law Society may require an explanation, may monitor solicitor + remove from Conveyancing Quality Scheme
