Searches and Breach Flashcards
paid by who
usually seller, but important to buyer and lender
Why do searches?
make sure the purchaser knows of anything wrong with the title and to show that they are getting a good and marketable title
What to do if acting for the purchaser?
Make sure all the usual and necessary searches done and you examine these searches and deal with anything that does not look right
Property Enquiry Certificate
get from local authority or specialist searcher
essential info on the status of the property
get as early as poss from the seller
after missives but no more than 3 months before DoE
PEC - planning
any planning applications that have been made
(a) Alerts purchaser as to whether any alterations have the proper permissions – should be looked at alongside the Single Survey in the Home Report….
PEC - building control
if there are any building warrants that have been applied for in respect of alterations to the property.
Need to ensure that all work has been properly documented. If not been need to get confirmation from the council they will not make any enforcement action in relation to unauthorised works. compare with single survey again
PEC - Roads
will identify whether the road is adopted ex adverso (to the boundary) of the property. If the road is adopted (as a public road) then it is maintained at public expense and it can be assumed that a public right of passage exists over the road, which provides rights for any type of traffic to use the road at any time. This will also disclose whether the property is affected by any transportation proposals.
If the road is not adopted then will need to further investigate who owns it and who has responsibility for maintenance.
PEC - statutory notices
whether the council has served any statutory notices under a variety of statutes, including requiring the owners to deal with defects or disrepair to their building. It will also disclose whether the council has served any notices under housing, environmental protection, and health & safety legislation
The purchaser’s solicitor would normally retain an adequate amount from the purchase price to cover liability which would arise after settlement
PEC - water and sewage
Scottish Water will produce a report stating whether the property is connected to the water and sewage mains, and will usually produce a helpful OS plan with the route of the mains. Most urban properties will be connected.
The purchaser’s solicitor should ensure that the property enjoys adequate rights for the pipes to and from the mains. If it is not, the purchaser’s solicitor will need to consider the adequacy of any private arrangement
PEC - contaminated land
most councils will disclose only whether the property is actually contaminated, by virtue of being on the contaminated land register.
The purchaser’s solicitor should ensure the property is not on the contaminated land register.
Coal Mining Report
The search is necessary to ensure that the property has not been built over old, disused coal mines and might be subject to movement, or subsidence or collapse. It is important to ensure that a search is requested from the Coal Authority, which holds records of where mines were constructed.
You can check lists on the Coal Authority website to find out whether the property your client is selling (or buying) in an area where a coal mining search is necessary. A purchaser would not want to proceed with the purchase of a property which is built on a coal mine.
Companies Search
If the seller is a company, the purchaser’s solicitor requires to be satisfied as to the continued good standing of the company
must be satisfied that the company will encounter no problems during the transaction. A purchaser would not want the company going into liquidation during the transaction and the property repossessed by the seller’s lender.
Property register search
one of the main concerns of the purchaser is to get a good and marketable title. The purchasers solicitor must ensure they have seen recent evidence of this. A search report will disclose whether there is any other that you need to examine that are not included in the pack that you have been given.
Legal Report (unregistered) and continuation
needed when a transaction induced land registration for the first time
Will disclose any advance notices that have been put in the sasines register. This will be disclosed through a continuation report.
The legal report then continuation report means there should be no last minute surprises.
The prop will usually be identified by a descriptive writ.
should check for:
- The foundation writ
- A prescriptive progress
- Any undischarged securities
- Any split offs
- Miscellaneous deeds
Should be more than ten years for foundation writ and 40 years to show any undischarged standard securities. 5 years for discharged securities
Legal Report (registered) and continuation
already in LR covers details on title sheet will tell you : - any leases or real burdens affecting the property -any miscellaneous deeds or alienations - any valid advance notices
Plan Reports
first reg. keeper will expect a plan of subject
1 - basic comparison with cadastral map to identify any conflicts
2- confims whether or not the subject can be identified and whether they match the features on the ordnance map. also shows if property is affected by any other title
3- everything in 2 but also any conflict or servitudes etc
Register of Insolvencies
provides information on the insolvency of individuals, businesses and companies.
- Info regarding sequestration is available for 2 years after the discharge of a trustee.
Register of community interests in land
if the property is subject to a community body interest
essential to do
set up after community right to buy
Environmental search
highlight risk of contaminated land
other risks, flooding, ground stability, energy projects etc
Advance Notice
35-day protection period for purchaser to register title deed in the LR. Safeguards the purchase from a competing deed to a third party
added the conservatory forming pat of the property without obtaining any local authority permissions. Your client is very relaxed about the absence of documentation and asks you in an email to simply “go ahead without the paperwork as I am happy to deal with the absence of paperwork if I ever plan to sell the property”. Can you follow their instructions?
Likely won’t be able to get mortgage if you don’t provide all the correct paperwork. Need to get confirmation from the council they will not enforce any action
Since you received this email, you have also seen the Property Enquiry Certificate which discloses that the pavement outside the property is not adopted by the local authority for maintenance. Do you need to advise your client about the matter of the pavement?
If the road is not adopted then will need to further investigate who owns it and who has responsibility for maintenance. You might own the road and have to maintain it – prepared for extra cost? or apply to council for them to adopt
What options do the Scottish Standard Clauses provide to the purchaser for breach of missives by the seller?
Damages for any reasonable loss
breach continues after 14 days then can treat it as repudiation (a refusal to perform the duty or obligation owed to the other party) or rescind missives (ending the contract)
what options does the seller have if the missives are breached by the purchaser?
damages for proper and reasonable losses from late payment
interest on the amount (4.75%)
more than 14 days after due date - rescind missives and damages or interest damages. Look at wasted expenditure
