Pre-contract searches and enquiries undertaken when acquiring a freehold/leasehold property

Question 1

Who carries out Pre-Contract Searches and Enquiries?

Answer 1

They are usually carried out by the BS under the principle of caveat emptor, to ascertain as much information from the seller and 3P.

Question 2

Are sellers under a duty to disclose?

Answer 2

They may be liable in misrepresentation if they give misleading replies to enquries.

They are under no duty to disclose adverse matters, save for specified incumbrances affecting the title.

Question 3

When would you consider Enquiries before Contract?

Answer 3

Always Search

Question 4

When would you consider Personal Inspection/Survey?

Answer 4

Always Search

Question 5

When would you consider a Local Search?

Answer 5

Always Search

Question 6

When would you consider a water/drainage search?

Answer 6

Always Search

Question 7

When would you consider a Environmental Search?

Answer 7

Always Search

Question 8

When would you consider a Flood Search?

Answer 8

Always Search

Question 9

When would you consider a Chancel Repair Liability Search?

Answer 9

Often Always Search.

Especially where no prior disposal for value since 13 October 2013.

Insurance may be more cost effective.

Question 10

When would you consider a Mining Search?

Answer 10

In mining areas or where mines and minerals are expected and reserved from the title.

Question 11

When would you consider a Canal and River Trust/Environment Agency/Natural Resources Wales Search?

Answer 11

Where the property is near/adjacent to a river or a canal.

Question 12

When would you consider a Commons Registration Search?

Answer 12

Where open land is nearby, or property is constructed on a greenfield site.

Question 13

When would you consider a Highways Search?

Answer 13

Where there is a potential gap between the property and the highway.

Question 14

When would you consider a Railways Search?

Answer 14

Where the property is near/adjacent to a railway line and development works are proposed.

Question 15

When would you consider a Index Map Search?

Answer 15

Where the title is apparently unregistered or where mines and minerals are excepted and reserved from the title.

Question 16

When would you consider a Company Search?

Answer 16

Where the seller is a company, or title unregistered and the epitome of title reveals company estate owners.

Also, where the buyer is a company and a lender is involved.

Question 17

When would you consider a Land Charges Search?

Answer 17

Where the title is unregistered.

Question 18

When would you consider a Bankruptcy/Insolvency search?

Answer 18

Where a lender is involved.

Question 19

What are the Always Searches?

Answer 19

F - Flood Search
E - Enquiries Before Contract
E - Environmental Search
L - Local Search

D - Drainage/Water Search
I - Inspection/Survey
C - Chancel Repair Liability

Question 20

What are Enquiries Before Contract?

Answer 20

Enquiries raised by BS to SS that concern information that should be known by the seller.

Question 21

What Enquiries Before Contract are made for Residential Property?

Answer 21

Standard protocol forms will be used for solicitors under the LSCP:

• TA6: Property Information Form
  Boundaries, fences, complaints, notices, proposals, warranties, flooding, parking etc….
• TA10: Fitting and Contents Form
  Details fixtures that are to be removed and fittings that are to be included in the sale.
• TA7: Leasehold information form (also include LPE1 and LPE2)
• TA8: New Home information form.

Question 22

What Enquiries Before Contract are made for Commercial Property?

Answer 22

More detailed enquires inline with the Commercial Property Standard Enquiries (CPSE):

CPSE 1: General enquiries from all commercial property transactions.

CPSE 2: Additional enquiries form property subject to commercial tenancies.

CPSE 3: Additional enquiries on the grant of a new lease.

CPSE 4: Additional enquiries on the assignment of a lease.

CPSE 7: A shorter more straightforward form in comparison to CPSE 1.

These are more detailed that standard residential enquiries and include questions on VAT.

Question 23

What is Personal Inspection and Survey?

Answer 23

A personal inspection of the property should be done by the BUYER to ascertain the physical boundary and condition of the property as checking the boundaries, and checking for 3P rights.

Buyer should be advised whether to comission a survey of the property before exchange.

Question 24

What is a Local Search?

Answer 24

Submitted to the local authority together with a plan of the property and the fee.

2 Parts:

LLC1: LOCAL LAND CHARGES SEARCH

CON29: ENQUIRIES OF LOCAL AUTHORITY

Question 25

What does LLC1 Contain?

Answer 25

12 parts to land charges register which will reveal matters like:

• Planning permissions that have been granted
• Planning enforcement or stop notices
• Article 4 directions (restricting the General Permitted Development Order)
• Tree preservation orders
• Smoke control orders
• Financial charges such as road-making charges
• Conservation areas
• Listed building status
• Smoke control orders.

Question 26

What does the CON29 Contain?

Answer 26

Will reveal information about the property and its immediate surroundings:
- Planning consents, refusals and completion notices (not just granted, but also applications pending)
- Building regulations (informs whether approvals or completion certificates obtained for works carried out)
- Roads and public rights of way (footpaths) (any adoption plans)
- Environmental notices.

Can be followed up by the CON29O (optional).

Question 27

What does the CON29O Contain?

Answer 27

These are usually only ticked in specific circumstances (relevant to property), such as:
- The commons search (enquiry 22)
- Common land and town or village green (land designated for communal use is very restricted)
- Road proposals by private bodies
- Areas of outstanding natural beauty and national parks
- Pipelines
- Noise abatement zones

Question 28

What is a Drainage/Water Search? CON29DW

Answer 28

Questions about drainage and water specific to the property are dealt with by the relevant water service company for the area.

The 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.

Form CON29DW enquiries (residential property) or CommercialDW enquiries (commercial property) are submitted to the relevant water company.

If the drains and sewers are not adopted, the buyer will be responsible for their maintenance.

Question 29

What is an Environmental (Desktop) Search?

Answer 29

An environmental search should always be considered; an owner may be liable for the costs of cleaning up contaminated land, even if not responsible for the contamination.

Some information is given in the local search, but only whether notices have been served; desktop search is based on historical records and will indicate if the property has been used for potentially contaminative land uses (for example, industrial).

Likelihood of flooding and susceptibility to natural subsidence, and industrial land uses within 250 metres of the property.

Question 30

What are the provisions of the Environmental Protection Act 1990?

Answer 30

A buyer needs to informed that under the act, the local authority has the power to carry out investigations and designate land as contaminated, requiring it to be remediated.

Principle is that the ‘polluter pays’ for the remediation of the contamination they case.

If they cannot be found, liability may fall on the owner/occupier.

Question 31

What is a Flood Search?

Answer 31

Made routine is most transations and reveals whether the property is, or is likely to be affected by river/coast/surface water or ground water flooding.

A government scheme (Flood Re) provides assurance that insurance will be available for owners of residential properties, but it does not cover:
- Properties built after 01 January 2009.
- Buy-to-let.
- Commercial Properties.
- Most Leasehold Blocks.

Question 32

What is a Chancel Repair Search?

Answer 32

Chancel repair liability affects properties in parishes where there is a pre-Reformation church.
- Responsibility for repair of the church roof was shared between the church and the parishioners; very expensive if the parish church claims this.
- This search is therefore usually carried out as standard; indemnity insurance is readily available to cover the risk.

Question 33

What are the Depends Searches?

Answer 33

C - Company
H - Highway
I - Index
L - Land Charges
M - Mining
E - Environmental Phase 1/2
R - Railwys
I - Insolvency/Bankruptcy
C - Commons

Question 34

What is a Mining Search? CON29M

Answer 34

Reveals past and present mining activity within the proximity of the property, including underground work and mining shafts.

May be specific searches dependant on the area:

1. Tin
   Cornwall, Devon and Somerset.
   - Cornwall Mining Consultants.
2. Clay
   Cornwall, Devon and Dorset.
   - Kaolin and Ball Clay Association.
3. Limestone
   Dudley, Sandwell, Walsall, Wolverhamption, Telford.
   - Relevant local authority.
4. Brine/Sale
   Cheshire and Greater Manchester.
   - Cheshire Salt Search.

Question 35

What is an Environmental Phase Survey?

Answer 35

Environmental Phase 1 Survey:
More detailed than the standard desktop environmental search and includes a site inspection

Environmental Phase 2 Survey:
Taken where Phase 1 study indicates risk of contamination. Soil/water samples are tested to indicate whether there is contamination or not

Question 36

What is a Commons Search? CON29O Q22

Answer 36

If the property has been constructed recently on a greenfield site, on the edge of an ubran area of has open space adjacent or within the vicinity of it a commons registration search is essential.

Reveals whether the property is designated as village green which the public have access to use and rights of use.

Question 37

What is a Highways Search?

Answer 37

Where there is any doubt from CON29, or for most commercial properties, a highways search is needed.

Shows the exact boundary between private land and public highway with reference to a plan (map).

For buyer to ensure that property abuts public highway or any right of way that land has benefit of; so land can be accessed.

If the results show that the property does not immediately abut the highway - will be necessary to ensure that there are appropriate rights of access.

Question 38

What is a Railways Search?

Answer 38

Where railway passes near property/is within proximity of proposed railway - no standard railway search; specific enquiries may be made to Network Rail or relevant company (London Underground, HS2) about issues like access rights across property.

Question 39

What is an Index Map Search (SIM)?

Answer 39

Search to ascertain details of any registered title(s) affecting the property, any pending applications for registration and cautions against registration.

Question 40

What are Land Charges Searches?

Answer 40

Used if the title to property is unregistered.

Land Charges Searches must be made against all relevent estate owners.

Using a K15 form to identify the charges that could be binding on a buyer.

Question 41

What is a company search?

Answer 41

Checks whether the company is in existence, subject to any insolvency procedures, or granted any fixed or floating charges.

If the seller is a company, a company search must be made at Companies House.

If URL the search should also be made against corporate owners referred to in the epitome of title.

If acting for a lender, a company search should be made against the buyer.

Question 42

What is a bankruptcy/insolvency search?

Answer 42

Usually a pre-completion search, but may also be taken at the pre-exchange stage and then repeated.

Needed when the buyer is borrowing to fund the acquisition.