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Real Estate and Commercial Practice > Searches > Flashcards

Searches Flashcards

1
Q

Why are searches necessary prior to purchase of a property?

A

CAVEAT EMPTOR - BUYER BEWARE

  • Lets the buyer know whether any defects are present in the property which allows them to make decisions on how to act.
  • Protection for purchaser e.g. if seller is bankrupt they may not have permission to give a good and marketable title
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2
Q

What are the two categories of due diligence?

A
  • Private: Enquiries made of the seller as to the position of any matter
  • Public: public registers are interrogated to disclose the position of the relevant matter
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3
Q

What is the Property Enquiry Certificate PECS?

A
  • Obtained from the local council the PECS is a search which draws together information from various public registers.
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4
Q

What does the PECS cover?

A
  • Planning
  • Building Control
  • Roads
  • Statutory Notices
  • Water and Sewage
  • Contaminated Land
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5
Q

What will the PECS disclose in respect of PLANNING?

A
  • Any planning applications, consents or refusals.
  • Will include building warrants to show alterations done to property
  • Whether the property is a listed building.
  • Whether it is in a conservationist area.
  • Whether the property is subject to any enforcement action.
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6
Q

What should a solicitor ensure when observing planning information?

A
  • If in abstract form ask seller’s solicitor for any drawings.
  • Make sure versions seen are certified copies or originals.
  • Solicitor should match up alterations the property with building warrants etc.
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7
Q

Why may the listing of a building make a big difference to the purchaser?

A
  • Some purchasers may be historians and welcoming listing

- Most purchasers will not as it will mean more restrictions are placed on what they can do in the property.

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8
Q

What are the three grades of legal protection for listed buildings?

A

A - Greatest protection for national treasures
B - Of regional importance
C - Of local importance

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9
Q

If a purchasers wishes to make alterations to a listed building what will they require?

A
  • Listed building consent which includes a consultation and approval of Historic Scotland
  • Patience
  • An influx of money.
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10
Q

What will the PECS disclose in respect of BUILDING CONTROL?

A
  • Will disclose if there are any building warrants that have been applied for in respect of alterations to the property
  • More crucially it will show either the corresponding completion certificate confirmation has been issued by the council approving the works.
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11
Q

What should the purchaser’s solicitor do when reviewing the PECS in respect of BUILDING CONTROL?

A
  • Analyse info about building warrants and completion certificates held by the council.
  • This is to ensure that the work has been properly documented and that the necessary documentation is in place.
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12
Q

If the purchasing solicitor discovers work carried out on the property has not had the proper authorisation what may he or she do?

A
  • Apply to the council for confirmation that they will not take action against the unauthorised works.
  • May take form of a letter of comfort (if council prepared to give one) - for works completed prior to 1 May 2005
  • After 1 May the Council may provide some from of confirmation such as a confirmation of completion or a property inspection report.
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13
Q

What will the PECS disclose in respect of ROADS?

A
  • Whether roads are adopted ex adverso (to the boundary) of the property by the Council.
  • If the road is adopted then the purchased need make no further enquires as they can assume a public right of passage, they are also not responsible for repairs and maintenance.
  • If not adopted purchaser will need to make further investigation
  • PECS will also disclose here whether the property is affected by transportation proposals such as proposal for bypass or road widening scheme.
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14
Q

What should the purchasing solicitor check in respect of ROADS within the PECS?

A
  • Whether the purchaser will enjoy adequate rights over adopted road to his property.
  • If road is not adopted purchaser will have to discover who has responsibility for maintenance and repair of road as it may be them.
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15
Q

What will the PECS disclose in respect of STATUTORY NOTICES?

A
  • Disclose whether council served any statutory notices for repairs.
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16
Q

If a statutory notice is served on a building who usually has responsibility? And what will the purchaser’s solicitor do as a result?

A
  • The Seller

- Solicitor will retain adequate funds from sale price to cover liability which would arise after settlement.

17
Q

What will the PECS disclose in respect of WATER & SEWAGE?

A
  • For a separate charge Scottish Water will produce a report stating whether the property is connected to water and sewage mains
  • Scottish Water will also provide a helpful OS Plan detailing this.
  • Most urban areas are connected to this.
18
Q

What should the purchaser’s solicitor be sure to check in relation to WATER & SEWAGE?

A
  • That the property enjoys adequate rights to the pipes to and from mains.
  • If not then the purchaser’s solicitor will need to consider the adequacy of private arrangements.
19
Q

What will the PECS disclose in relation to CONTAMINATED LAND?

A
  • Whether the property is actually contaminated by virtue of being on the Contaminated Land Register kept under Part II of the EPA 1990
20
Q

Why are there few properties actually on the Contaminated Land Register?

A
  • As the Council usually prefer to impose planning conditions to remediate properties.
  • This being an alternative to ‘blighting’ the land.
21
Q

Why is a Coal Mining Report necessary?

A
  • As some properties were unwillingly built on top of old coal mines.
  • This makes properties more susceptible to movement, subsidence or collapse.
22
Q

What does the Coal Mining Report detail and where can one be obtained?

A
  • The CMR will hold details on where mines were constructed

- This can be obtained from the Coal Authority

23
Q

When is a Coal Mining Report not required?

A
  • The Law Society of Scotland allow solicitors to dispense with a CMR where there is no history coal mines where ever built in an area where the property is being purchased.
  • A search can be done on the Coal Authority Website to check areas where coal mines were built.
24
Q

Why is a Companies Search required?

A
  • When buying from a company it is critical for the purchaser’s solicitor to ensure the company is of good standing.
25
Q

Who will conduct a Company Search on behalf of the purchaser? And what will their search disclose?

A

A SPECIALIST COMPANY SEARCHER

  • Search of Companies House will disclose whether the company has any proposals to strike of or wind up the company.
26
Q

In addition to a search of Companies House, what else should the purchasing solicitor ensure the searcher checks?

A
  • Companies Register of Charges to check whether the company has granted any charges over the property as these will have to be dealt with prior to settlement.
  • Also should have a search conducted which shows the current directors and secretary so that these can be checked against details of signatories to the disposition.
27
Q

How will the purchaser’s solicitor ensure that the purchaser is gaining a good and marketable title?

A
  • By checking either that deeds have been registered in the General Register of Sasines or by examining the title sheet in the Land Register.
  • The titles examined clearly show a historical position.
  • Solicitor should also check there is nothing prejudicial to the granter’s title e.g. a lease when they expect vacant possession or a sale to someone else, outstanding securities, or inhibitions against seller.
28
Q

What will property register reports usually detail?

A
  • A searcher’s findings in respect of deeds, documents another entries.
  • The search will typically include a search for records for a particular property.
  • A search of the ROI will be conducted to check any records appearing against individuals or legal persons
  • Will disclose any other title’s that need to be examined that are not already included.
29
Q

What are the principal types of search?

A
  • Legal Reports (property and personal)
  • Company/Charges Search
  • Register of Insolvencies
  • Register of Community interests in Land.
30
Q

What transactions does a ‘Legal Report - Unregistered Land’ apply to?

A
  • Report that is needed for first registration transactions (where the property is not yet in the LR)
31
Q

What will the Legal Report of Unregistered Land disclose?

A
  • Discharges of securities within the last 5 years
    any adverse entries in the ROI
  • Any extant advance notices or caveats
  • the prescriptive progress of title for the preceding 10 years
32
Q

If the Legal Report for Unregistered Land is obtained early it will likely not contain the Advance Notice application, what can the solicitor do?

A
  • Obtain a Legal Continuation Report for no extra cost from the Registers.
  • This can be done so long as it is within 6 months from the date of original report.
33
Q

What is the difference of the Legal Report of Unregistered Land to commercial and residential transactions?

A
  • For commercial the report is obtained early on in the transaction.
  • For residential transaction the report is usually ordered just before settlement - with no continuation report being. needed.
34
Q

Why may it be advisable to have the Legal Report for Unregistered Land done earlier even in residential transactions?

A
  • As as the report is conducted just before settlement usually it may disclose matters such as an inhibition or unexpected standard security.
  • This would cause a delay in settlement as there is little time to resolve the issue.
  • Therefore solicitor may choose to have report done earlier and then for no cost (using Register Service) have continuation report done.
  • This will lessen chance of any unexpected occurences.
35
Q

What should the purchasing solicitor ensure when drafting the request for, and inspecting legal reports?

A

That the search covers all property that the purchaser is interested in.

36
Q

What MUST the solicitor see within the legal report over Unregistered Land?

A
  • Foundation Writ (the first writ conveying property that was recorded more than 10years ago)
  • A prescriptive progress (all writs from the foundation writ to writ in favour of current granter)
  • Undischarged standard securities (usually discharged as part of transaction, or deed of restriction granted if the security is over land larger than that interested by the party)
  • Split offs (lets the solicitor know what parts of land are no longer owned by current granter)
  • Miscellaneous Deeds e.g. servitudes or real burdens.
37
Q

What should the length of search be in relation to the Legal Report over Unregistered Land?

A
  • Search back to ten years or more for the prescriptive progress.
  • This should start with the foundation writ.
  • Search relating to undischarged standard securities should go back at least 40years.
38
Q

What does the Legal Report over Registered Land disclose?

A
  • discloses any deeds registered affecting the subjects after the date of registration.
  • any deeds currently in the registration process that may affect the subjects
  • any adverse entries in the ROI
    any extant
  • advance notices or caveats

Real Estate and Commercial Practice (5 decks)

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