searches and breaches of missives

Question 1

two types of due diligence

Answer 1

private - enquiries are made to the seller

public - public registers are interrogated to disclose the position of any relevant matter

Question 2

PECs

Answer 2

• should be obtained as early as possible from the seller
• has to be after conclusion of missives but no more than 3 motnhs before the date of entry
• need to check if lender will accpet a pec from a private firm

Question 3

planning

Answer 3

• dislcose any plannign applications and consent
• ask purchasers solicitor of any drawings or plans
• whether it is listed in a conservation area
• 3 grades of legal protection for listed buildings ABC

Question 4

building control

Answer 4

• if there are any building warrants applied for in respect of the prop
• need to ensure all work has been properly documented
• need to get confirmation from the council that they will not use an enforcement action

Question 5

roads

Answer 5

• will need to know if the road is adopted ex adverso (to the boundary)
• if not adopted investigate who owns it and who has responsibilty for maintenance

Question 6

statutpry notices

Answer 6

• if the council has served any stat nptices

- the purchasers solicitor will normally retain an adequate amount from the purchase price to cover the liability

Question 7

water and sewage

Answer 7

• Scottish water will prodcue a report saying whether they are connected to the sewage mains.

Question 8

contamianted land

Answer 8

• most council will only disclose if on contaminated land, will be on a register

Question 9

coal mining report

Answer 9

• get a search from the coal mining authrity

- don’t need to if an area that has never been mined

Question 10

companies search

Answer 10

• need to be satisfied of the continued good standing of the comp
• a specialsit searcher cearches the records held byt the companies house, for prop to stike off and wind up the company

Question 11

property register search

Answer 11

• need to do this to ensure good and marketable title

- must ensure you have seen recent evidence of this

Question 12

the principal types of searches

Answer 12

• legal reports
• company searches
• register of insolvencies
• register of community interests in land

Question 13

legal report over unregistered land

Answer 13

• will disclose any advance notices that have been put in the sasines register
• the legal report and a continuation report means there will be no last minute surprises
• the prop will usually be identified by a descriptive writ

Question 14

what do you need to check when receiving a land report

Answer 14

• the foundation writ
• a prescritpive progress
• any undischarged securities
• any split offs
• miscellaneous deeds

Question 15

different parts of a planning report are

Answer 15

part 1 - suitability of submitted plan and or bounding description for registration
part 2 - comaprison with the ordanance survey map
part 3 - exisitng exclusive registered areas which conflict with the prop
part 4 - exisitng shared registered areas which affect the prop
part 5 - additional registered interests affecting the prop

Question 16

plans report level 1

Answer 16

• provides a basic comparison with the cadastral map, identifies any conflicts

Question 17

plans report level 2

Answer 17

• will provide a comaprison with the ordanance map

- will tell if conflict but will not provide details of them

Question 18

plans report level 3

Answer 18

• all the info in each of the 5 sections, provide extracts providing the extent of any cadastral units.

Question 19

register of insolvencies

Answer 19

• statutory register which provides info on the insolvency of individuals, businesses and companies
• info regarding sequestration is avaliable for 2 years after the dsicharge of a trustee.

Question 20

register of community interests in land

Answer 20

• set up after the community right to buy

- has the name and the office of the registered company, and a descritpion includign drawings

Question 21

environmental search

Answer 21

• not a standard search
• once been made aware then can become a knowing permitter
• many solicitoes will include liability for this in their letters of engagement

Question 22

private roads

Answer 22

there might be a public right of passage but the only requirment is not to obstruct the right of passage
need to distinguish between a public right of passage for the public and a private right of passage for the adj prop

Question 23

johnstone v sweeney

Answer 23

towpath, fell down a gap covered by a metal plate, there is no duty to make it safe for pedestrains

Question 24

access to rural prop

Answer 24

• need to usnure have an unrestricted right to all nec rights of access
• oftent he alrger estate is owned by soemone else who will have a servitude right of access

Question 25

roads in new developments

Answer 25

- normally once the roads are completed apply to the roads authotity to take over liabiltiy. - you must ask to see the roads contruction consent

Question 26

repudiation

Answer 26

indicate by words or acts that not going to perform the obligation but having no right to withhold or refuse performance. the other party can accept and claim damages

Question 27

recission

Answer 27

- in resposne to repudiation or material breach by the other party, puts you back to the position you were in before the contract was made

Question 28

resile

Answer 28

- withdraw lawfullt in the exercise of a right to do so, not in response to a repudiation or breach - look at the difference in the psg

Question 29

when are you due to perform

Answer 29

- the date of entry - the due date- the later of the date of entry or the date on which payment was due taking into regard any non performance - the date of settlement - the date on which settlement is actually affected

Question 30

remedies

Answer 30

- non performance by the seller - renegotating the missives - bridging finance - damages or penalty