Searches and Enquiries

Question 1

Who conducts the due diligence process?

Answer 1

Buyer solicitor.

Question 2

What are the implications on withdrawing from a property transaction after the exchange of contract?

Answer 2

Likely to be in breach of contract.

Question 3

Failure for buyer solicitor to recommend relevant searches can lead to…

Answer 3

a buyer potentially bringing a claim for negligence against the solicitor.

Question 4

Results of the enquiry responses are crucial for a buyer. Who else may be interested in the results of the enquiries?

Answer 4

Lender.

Question 4

Explain survey and personal inspection.

Answer 4

• Professional survey should always be carried out. Lenders will require this.
• There are various degrees of survey which can be undertaken and the survey used will depend on age and location of the property.
• Lender will also require borrower to pay for a valuation (assessing whether property is adequate security for the loan).

Question 5

What is a structural survey?

Answer 5

Necessary if buyer is concerned about the structure of the property/ is planning alterations.

Also if BRC has not been obtained.

Question 6

What is a home buyers valuation and survey?

Answer 6

A less detailed version of the structural survey, but still contains advice on necessary repairs and maintenance.

Question 7

What is a local search?

Answer 7

• required for every sale and purchase of property.
• it encompasses local land charges search and standard enquiries of the local authority.
• provides details of any financial charges over the property/ restrictions on land imposed by the local authority under statute (eg planning consents).
• NOTE: only applies to the property and not adjoining land (optional enquiries may need to be raised to see if development is planned on adjoining land).

Question 8

What is the purpose of standard enquiries (form CON29)?

Answer 8

Reveals lots of info like planning permissions, restrictions on permitted developments and whether land is designated as contaminated land. Also tells buyer about liabilities for road repair.

Question 9

Define optional enquiries.

Answer 9

Raised in a separate form (CON290) and tend to be raised dependant on locality of property.

Gives buyer info on environmental and pollution notices, as well as rights over communal land.

Question 10

Explain water and drainage searches.

Answer 10

• raised with the statutory undertaker (usually a water company).
• main purpose is to establish whether the drains/ sewers serving the property are adopted by, and therefore the responsibility of statutory undertaker rather than the owner of the property.
• mainly reveals whether property is connected to a public sewer and public water supply.
• if not draining to public sewage supply, buyer may be responsible for drainage, liable for costs of maintenance and brining the drainage system up to the adoption standard if water authority decides to adopt them.

Question 11

Explain the typical pre-contract enquiries seller is required to answer.

Answer 11

• whether the seller has any disputes regarding the property;
• whether there are third parties occupying the premises;
• questions about abiding with covenants;
• any planning permissions, issues with boundary maintenance.
• with commercial properties they will be asked about VAT status of the transaction.

Question 12

Explain the purpose of environmental searches.

Answer 12

• Checks for contaminated land (sol may be liable if not);
• Most common search is a desktop search carried out by environmental specialists and looks at all plans of the area and info published by LA and Environment agency.
• if it comes back saying there is a risk it may be contaminated, buyer should get physical survey of the land to be carried out by specialist environmental surveyors.
• Insurance may also be an option is risks are found.

Question 13

Where do details on the covenants affecting the land appear for unregistered land?

Answer 13

In or around the first operative paragraph of the conveyance.

Question 14

Regarding unregistered land, the buyer will be entitled to assume that there has been no severance of a joint tenancy. List these three conditions (set out in the Law of Property Joint Tenants Act 1964).

Answer 14

1) There is no memorandum (written record) of severance endorsed on the conveyance of the property to the joint tenants;
2) There are no bankruptcy proceedings registered against either of the joint tenants at the Land Charges Registry;
3) The transfer by the surviving joint owner to the buyer contains a statements that the survivor is solely and beneficially entitled to the land.

Question 15

Explain implications of the Halsall v Brizell rule?

Answer 15

The rule refers to the fact that sometimes there is a right of way contained on the property register provided the proprietor contributes to the maintenance of the road.

The buyer solicitor should therefore raise enquiries to determine how frequently and how much (if at all) the seller is currently contributing to the road.

Question 16

Where does one find details of easements over a property for unregistered land?

Answer 16

The conveyance (usually in the first operative paragraph).

Question 17

If it appears the title to a property should have been registered already, what is the best course of action?

Answer 17

Before any further sale, the seller must register the property.

Question 18

What is the seller’s solicitor looking for with regards to finding the root of title?

Answer 18

A document in the title deeds which is a good place to examine the title from. This will usually be the most recent document, and therefore it is most likely that documents predating the root of title document can be ignored.

Question 19

What is an epitome of title?

Answer 19

A schedule put together by the seller’s solicitor where they detail all of the documents fro the root of title document up util the present day in chronological order.

Question 20

S44 LPA 1925 sets out the requirements for a good root of title. List these requirement.

Answer 20

Root of title must:
1) deal with or show who owns the entire interest (legal and equitable) which is being sold by the current owner;
2) contain a recognisable description of the land;
3) do nothing to cast doubt on the seller’s title
4) be at least 15 years old

Question 21

What are there two most commons forms of root of title?

Answer 21

1) A conveyance;
2) A mortgage.

Question 22

What is the next best root of title if the preferred two aren’t available?

Answer 22

Deed of gift or agent.

Question 23

When is a land charges search used?

Answer 23

In relation to unregistered land.