Property (Freehold) - Searches and Enquiries (5) Flashcards
What searches and enquiries need to be undertaken?
Searches and Enquiries: Following investigation of title, the buyer’s solicitor must conduct a number of searches and enquiries to discover burdens over the land that the seller’s solicitor is not required to disclose (caveat emptor).
(1) General Checks: Certain searches and enquiries are relevant to all transactions. These are never mandatory, but are highly important (and could lead to claims in negligence for poor practice).
(2) Specific Checks: Certain searches and enquiries are relevant on a case-by-case basis, usually following discoveries in the investigation of title.
What seller enquiries need to be undertaken?
Seller Enquiries: Sellers should be asked for knowledge on land disputes, incumbrances, compliance with covenants, knowledge on planning permissions, third-party occupants, boundary maintenance, and purchase price VAT on Form TA6.
(1) Caveat Emptor: Sellers are not required to disclose anything other than ‘latent encumbrances’. They cannot lie, but can refuse to answer. There is no obligation to disclose physical defects, but cannot hide them (Hardy v Griffiths).
>Hiding physical defects can amount to the ‘Tort of Wilful Deceit’, i.e. painting over cracks in the wall.
(2) Latent Encumbrances: Latent encumbrances are burdens not apparent or discoverable on reasonable inspection, such as an easement by prescription not noticeable on inspection, i.e. to drains (if known to seller).
>I.e. They would have to disclose an unregistered lease protected by actual occupation.
When will personal inspection be necessary?
Personal Inspection: Purchasers may inspect the property in person. This is less usual for lower value commercial and most residential purchases. It may reveal discrepancies on the property plan, such as unknown drains, pathways, or occupiers.
What kind of survey or valuation should be undertaken?
Survey and Valuation: The property should be professionally valued and structurally surveyed. This is usually a requirement to confirm good and marketable title to a lender.
(1) Valuation: A valuation determines the market value of the property.
(2) Structural Survey: A structural survey provides a detailed comment on the structure of the property.
(3) Homebuyer’s Valuation and Survey: This is a cheaper and less detailed valuation and survey, usually adopted for properties less than 150 years old purchased without a mortgage. Not recommended if renovations are sought.
What is a water and drainage enquiry?
Water and Drainage Enquiry: The local statutory water undertaker (usually a water company) should be consulted on drains and sewers on the property.
(1) Enquiry: Enquiry is made on Form CON29DW (residential) or CommercialDW (commercial).
(2) Purpose: The undertaker will confirm whether the property is connected to public sewers and water supplies, and if so whether access points must be kept. If not, it can state whether any private piping is subject to public adoption, and whether the landowner would be required to upgrade it to ‘adoption standard’ if so.
What searches are required for environmental contamination?
Environmental Contamination: Several searches and enquiries should be made in respect of environmental contamination over the land.
(1) Purpose: Landowners are liable for the costs of cleaning contaminated land, even if they did not cause it. This may mean the purchaser would become liable following sale, and therein their solicitor in negligence (EPA 1990).
(2) Local Authority: The local authority can be asked about environmental notices on the land by optional enquiry. This is not definitive, nor does it confirm the extent or risk of contamination.
(3) Desktop Search: Specialist environmental companies can conduct searches of the local area and information published by authorities such as the Environment Agency.
(4) Environmental Survey: If contamination is flagged, a professional environmental surveyor should be hired to take and analyse soil samples. Purchasers can take out insurance if cost-effective, or avoid the purchase if not.
What is a flood risk search?
Flood Risk Search: Several searches should be made in respect of flood risk. Proximity to bodies of water is often irrelevant, as most flooding is surface water related (the result of heavy rainfall).
(1) Purpose: Flooding is a major risk to potential buyers and can affect resale value. Residential properties are protected by the ‘Flood Re’ government insurance scheme, but this does not reduce risk to life and health.
(2) Online Search: Information published online by the Environment Agency and Land Registry may be searched. This covers river, coastal and surface flood risk indicators, but are not property specific.
(3) In-Depth Search: Specialist businesses conduct more in-depth searches, varying in cost and coverage.
(4) Specialist Report: Where risk is high, specialist reports can be commissioned advising on specific risks.
What searches are made for mines and mineral rights?
Mines and Minerals Search: Properties in mining areas or with mines and minerals restrictions on title should conduct searches regarding existence or potential for mines over the land.
(1) Purpose: Landowners may be liable for trespassing on any mines over their land. Mines are also a major cause of subsidence. This should always be checked in Cornwall, Devon, Somerset, Dorset, Cheshire and the West Mids.
(2) Coal Authority Map: The Coal Authority Map should be consulted to determine existing coal mining areas.
(3) Coal Mining Search: The Coal Authority will confirm if an area is/will be subject to mining, has mine shafts on the land, has suffered subsidence and has been subject to subsidence damages claims on Form CON29M.
>Specific searches exist for certain other types of mining as well.
(4) Index Map Search: Index Map Searches identify all titles over the land on Form SIM. This is important as mines may be registered under a different title, with different rights attached therein.
When is a mines and mineral search required?
Mines and Minerals Search: Properties in mining areas or with mines and minerals restrictions on title should conduct searches regarding existence or potential for mines over the land.
(1) Purpose: Landowners may be liable for trespassing on any mines over their land. Mines are also a major cause of subsidence. This should always be checked in Cornwall, Devon, Somerset, Dorset, Cheshire and the West Mids.
(2) Coal Authority Map: The Coal Authority Map should be consulted to determine existing coal mining areas.
(3) Coal Mining Search: The Coal Authority will confirm if an area is/will be subject to mining, has mine shafts on the land, has suffered subsidence and has been subject to subsidence damages claims on Form CON29M.
>Specific searches exist for certain other types of mining as well.
(4) Index Map Search: Index Map Searches identify all titles over the land on Form SIM. This is important as mines may be registered under a different title, with different rights attached therein.
When will a canal and river enquiry be required?
Canal and River Enquiry: Properties adjoining canals and rivers should enquire about any maintenance liabilities.
(1) Purpose: Certain properties are liable for maintaining adjoining waterways at their own expense.
(2) Enquiry: Enquiries can be made of the ‘Canal and River Trust’, who will confirm liability for maintenance of waterways, banks, and towpaths. They may also provide information on flooding.
When will a common land rights enquiry be necessary?
Common Land Rights Enquiry: Properties on green-field sites or adjoining common land, such as village greens and public skateparks, may be subject to common rights over their property (Commons Registration Act 1965).
(1) Common Rights: Rights of common are effectively easements or profits of the public over a private property, such as a right of way, a right to pasture, a right to take produce, or a right to roam.
Effect: Occupiers can be liable for the injuries of the public on their premises (OLA 1984).
(2) Enquiry: Optional enquiries can be made of the local authority on Form CON29O enquiry 22.
When will a cancel repair search be neccessary?
Chancel Repairs Search: Properties in local parishes may be liable to fund local chancel repairs (Chancel Repairs Act 1932).
(1) Purpose: It is usually prudent to obtain insurance if liability is discovered. A husband and wife were charged £186,000 in 2003 when liability arose for them (Parish of Aston Cantlow v Wallbank).
(2) Registered Interest: This interest must be registered against title on any triggering event since 13 Oct 2013. As such, it will be on the title of any such property. It will be overriding if no triggering event has occurred since then.
(3) Commercial Search: A commercial business can conduct a search if the title does not record the interest.
(4) In Practice: Some firms will conduct the search on all properties, even in the absence of a local church, due to the high risk posed. Insurance is usually a more practical option, however.
When will a highways search be neccessary?
Highways Search: Properties adjoining roads, verges and pavements should enquire about access and liability.
(1) Purpose: It is important to determine whether roads and footpaths are publicly accessible, both for maintenance and accessibility reasons. If privately owned, enquiries will need to be made about rights of access.
>Private road access may be determined by enquiry, registered easement, or prescription.
>If private, it will need to be determined whether purchaser is required to contribute towards maintenance.
(2) Standard Enquiries: The standard enquiries will reveal roads, footpaths and footways that are not publicly maintained, and whether they are subject to adoption and liable to be raised to adoption standard (Form CON29).
(3) Highways Authority: The Highways Authority will indicate publicly maintained roads are accessible by the property, or whether there are gaps (meaning no access without permission of owner). They will confirm if a title plan is sent.
When will a railways search be neccessary?
Railways Enquiry: Purchasers may enquire about whether adjoining railways are to be maintained privately.
(1) Enquiries of Seller: Seller may have information, though is not obliged to answer.
(2) Railway Company Enquiries: Railway companies may provide information (Network Rail will not).
(3) Local Search: The local authority may indicate proposed rail schemes on enquiry 22 (Form CON29).
What searches should be made specifically for unregistered land?
Unregistered Land Search: Purchasers of unregistered title should make appropriate searches.
(1) Land Charges Search: A search against all current and former estate owners should be made on Form K15, to determine registered incumbrances.
(2) Index Map Search: An index map search should be made on Form SIM, to determine whether the land is in fact already registered under another title, or is pending registration, or is subject to a caution pending registration.
