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Property Law and Practice > U2. Pre Contract - Searches and Enquires > Flashcards

U2. Pre Contract - Searches and Enquires Flashcards

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1
Q

What is the purpose of pre contract searches and enquires?

A

Pre Contract Searches and Enquires are usually carried out by the buyers solicitor to ascertain as much information as possible about the property from sellers and third parties.

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2
Q

Why must the buyer carry out pre searches and enquires?

Can the seller ever be liable for not disclosing ?

A

The Buyer takes on the property under the principle of ‘Caveat Emptor’, meaning buyer beware. Thus the buyer must take care to ascertain as much information about the property as possible.

Thus, sellers are under no positive duty to disclose adverse matters, save for specified incumbrances affecting the title.

However, Sellers may be liable in misrepresentation for misleading replies to enquires

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3
Q

What 6 Searches must ALWAYS be undertaken?

A
  1. Enquires before contract
  2. Personal Inspection Survey
  3. Local Search
  4. Water / Drainage Search
  5. Environmental Search
  6. Flood Search

(LAND CHARGES SEARCH and INDEX MAP SEARCH IF UNREGISTERED )

(BANKRUPTCY AND INSOLVENCY SEARCH IF LENDER INVOLVED)

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4
Q

What search must always be undertaken (in addition to the standard 5) when the there is a lender involved?

A
  1. Bankruptcy and Insolvency Search
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5
Q

What 2 Searches must always be undertaken (in addition to the standard 5) when the land is unregistered?

A
  1. Land Charges Search
  2. Index Map Search (SIM)
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6
Q

What 3 circustances require a company search must be undertaken?

A

Where the seller is a company or

Title is unregistered and the epitome of title reveals company estate owners.

Where the buyer is a company and a lender is involved

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7
Q

When must a railway search be undertaken?

A

Where the property is near/adjacent to a railwayline AND development works are proposed

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8
Q

When must a highway search be undertaken?

A

Where there is a potential gap between the property and the high way

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9
Q

What 2 circustances require an Index Map Seach?

A

Where title is apparently unregistered or

Where mines and minerals are excepted and reserved from title

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10
Q

When is a Commons Registration Search Required?

A

Where Open land is nearby, or

property is constructed on a greenfield site

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11
Q

When is Canal and River Trust / Enviorment Agency / Natural Resoruces Wales Search?

A

Where property is near or adjacent to a river or canal

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12
Q

When must mining searches be undertaken?

A

In Mining Areas

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13
Q

When must a Chancel Repair Liability Search be undertaken?

A

Where no prior disposal for value since 12 October 2012.

However, taking insurance may be more cost effective

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14
Q

When must there be a flood search?

A

Always

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15
Q

When must there be an Enviormental Search?

A

Always

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16
Q

When must there be a Local Search?

A

Always, sometimes with optional enquires

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17
Q

When must there be a personal inspection survey?

A

Always

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18
Q

When must there be enquires before contract?

A

Always

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19
Q

When does the buyers solicitor raise addintional enquires?

A

As a result of replies to enquires and pre contract searches

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20
Q

When must the Standard Protocol forms be used?

A

For residential property transactions, the standard protocol forms must be used in the firm is apart of the Law Society Conveyancing Protocols - which most are.

Even if they are not, most of the time these forms are used.

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21
Q

What are the 4 Standard Protocol Forms?

What 2 are always used?

A

TA6 - Property Information Form - ALWAYS

TA10 - Fittings and Contents Form - ALWAYS

TA7 Leasehold Information form - Leaseholds Only

TA8 - New Home Information Form - New Builds Only

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22
Q

When is the TA7 Leasehold Information form used?

A

When the residental transaction is for a leasehold

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23
Q

When is the TA8 New Home Information Form used?

A

When the residental property is a new build

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24
Q

When is the TA10 Fittings and Contents Form Used?

What does it do?

A

Always used for residental transaction if firm apart of the Law Society Conveyacning Protocols, and often used in all cases irrespectivley

		Details Fixtures that are to be removed 
		
		Fittings that are to be included

(The standard is fixtures will be included and fittings will be removed, so this is needed if the otherwise)

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25
Q

When is the TA6 Property Information Form Used?

What does it contain?

A

Always used for residental transaction if firm apart of the Law Society Conveyacning Protocols, and often used in all cases irrespectivley

Contains Enqurie questions on:

		§ Boundaries and fences 
		§ Disputes and Complaints
		§ Notices and proposals 
		§ Alterations 
		§ Planning
		§ Building control and use 
		§ Guarantees and warranties 
		§ Insurance
		§ Environmental matters and flooding 
		§ Rights and information arrangement 
		§ Parking 
		§ Other charges 
		§ Occupiers 
		§ Services and facilities 
                       Transaction information
26
Q

What is the TA6 form?

A

Property Information Form

27
Q

What is a TA10 form?

A

Standard Protocol Fixture and Fitting Forms

28
Q

What is a TA7 Form?

A

Leashold Information Form

29
Q

What is a TA8 Form?

A

New Home Information Form

30
Q

What are the 2 standard protocol forms that are always used for residential property transactions if the Solicitors are using the Law Society Conveyancing Protocol?

A
  1. TA6 - Propery Information Form
  2. TA10 - Fittings and Contents Form
31
Q

What are the Law Societys LPE1 Form and LPE2 Form?

A

LPE1 - Leasehold Property Enquires Form

LPE2 - Buyers Leasehold Information Summary Form (to give back to the buyer)

There are used in residential transactions instead of the TA7 form

32
Q

What are Commercial Property Standard Enquires (CPSEs)?

What are the forms?

A

Commonly used in Commerical Transactions, providing a more detailed enquiries

33
Q
A

CPSE1 OR CPSE 7

* Provides general enquires for all commercial property transactions, with CPSE7 being a shorter form for more straightforward transactions 

CPSE2 
* Additional Enquires for property's subject to commercial leases

CPSE3 
* Additional enquires on a grant of a new lease 

CPSE4 Additional Enquires on the assignment of a lease
34
Q

What are the 2 parts of the Local Search?

A
  1. Local Land Charges Search (Form LLC1)
    (Provides details of financial charges or restrictions imposed by or known by the Local Authority)
  2. Enquires of the Local Authority (CON29)

-This may also ential the optional additional enquires using form C0N290)

35
Q

Who is the Local Search made to and how?

A

To the local authority by sending a plan of the property and the associated fee.

36
Q

What does form CON29 - Enquires of the Local Authority entail?

A

Provides information in relation to planning and building regulations approvals and pending decisions, listed buildings and conservation area consents, and the adoptions of roads and footbaths.

37
Q

What does the Form CON290 - Optional Additional Enquires entail?

A

Provides Several Property Specific enquires, including environmental and pollution notices, food safety notices, and commons registrations.

Solicitors will assess the need for these on a case by case basis.

38
Q

Does a Local Search reveal information on adjoining or neighboring properties?

What is the effect of this?

A

No

These properties may be subject to a future change of use or construction works which could affect the use and enjoyment of the land.

39
Q

How do you get a local water / drainage search and what does it tell you?

A
  • Submitted to the local water authority together with a plan of the property and the associated fee.
    • Confirms whether the property’s water drains into public waters, whether the property Is connected to the main water supply, and what charges are paid (ie is it metered).

It will also confirm if any ‘assets’ (sewers) owned by the local water authority are in the properties boundaries. This is significant because they will have statutory rights of access and may restrict potential development.

40
Q

What happens if Water and Drainage Search shows the sewers and drains have not been adopted?

A

The buyer will be responsible for maintaining them and

may be liable to adopt them if the local water authority requests them to

41
Q

What happes if the seller has built over the local water authorities ‘assets’ (sewers) within the properties boundaries?

A

If there has been any building works over the local water authorities assets, the buyer should get a copy of consent to build or If not a suitable indemnity insurance policy from the buyer.

42
Q

How is an environmental search undertaken?

A

An environmental search is made to submitted to an environmental search provider together with a plan of the property and the associated fee.

43
Q

What does the enviormental search undercover, and what is the significance of this?

A

Contaminated Land.

If the land is contaminated, the local authority can require it to be remedied by the person who caused the pollution, however if that person is unknown or insolvent, the buyer will pay.

44
Q

What is the diffrence between the enviormental search and the Local Searches?

A

Although the 2 Local Searches will reveal land already designated as contaminated, the environmental search will reveal whether such designation is likely in the future.

45
Q

What should happen if cotamination is found by the environmental search?

A
  • If there is adverse results from the search, a further survey may be required, or an indemnity insurance policy from the seller.

Such results should be reported to the buyer, their mortgagee and potentially the surveyor.

46
Q

What is Chancel Repair Liability Search?

A

This reveals if the property is , or is likely too, be made to contribute to the costs of repairing and maintaining the chancel (a specific part) of a medieval parish church.

47
Q

Wheh is a buyer liable for Chancel Repair?

A

○ If there is no notice on the on the chargers register (For registered land) or no Caution in the title documents or a caution against first registration (For unregistered land) + there has been transfer for value on or after 13th of October 2013 = No liability
§ (However, there is always the possibility of a protective unilateral notice being entered before completion)

○ If there is no notice on the on the chargers register (For registered land) or no Caution in the title documents or a caution against first registration (For unregistered land), but there has not been transfer for value on or after 13th of October 2013 = There is a remote chance of a notice of caution being entered before completion.

Despite the low risk, most firms will carry out chancel repair liability searches, and if potential liability is uncovered take indemnity insurance, or in some cases take out indemnity insurance policy from the seller without undertaking the searches.

48
Q

What does a mining search reveal?

A

It reveals details of past and proposed mining activity within the proximity of the property, including underground workings and any mine shafts (treated or untreated - ie capped to allow a safe build over) as well as any subsidence claims.

49
Q

When is a mining search requeired?

A

If the property is in a former mining area.

You can check if the area is a former mining area by:

  1. Checking the Law Society Coal Mining Directory
  2. Checking the postcode on the Coal Authorities Website
  3. The Reservation of Mines and Minerals within the title will also be a good indication
50
Q

When is the Canal and River Trusts / Environmental Agency / Natural Resources Wales Search required?

A

If the property is situated next to a canal or river, this search is made accompanied by the property plan and the necessary fee.

51
Q

What does the the Canal and River Trusts / Environmental Agency / Natural Resources Wales Search check?

A

This will acertain the liability for the repair, rebuilding, or maintenance of the waterways, banks, and towpaths.

It will also show any adverse rights over the property, ownership of boundaires, and details of past flooding.

52
Q

What does the Commons Registration Search Reveal?

A

This search reveals whether the property is designated as common land or a town or a village green, to which the general public have access and possibly rights of use.

If so, development or enclosure of the land will not be permitted and its use and value will be affected

53
Q

When is a Commons Registration Search required?

A

If the property has:

 1. Been constructed recently on a greenfield site
2. Is on the edge of an urban area, or 
3. Has open space adjacent to or within the vincinity of it
54
Q

How is the Commons Registration Search undertaken?

A

As an optional enquiry as part of the local search CON290, question 22

55
Q

When is a highway search required?

Why is the Local Search Not sufficient?

A
  • If there are concerns that the property does not immediately abut a highway maintainable at public expense, a highway search can be commissioned of the local highways authority, accompanied by a plan of the property and the required fee.
    • Although the CON29 Part of the local search reveals whether the roads abutting the property are maintainable at public expense, it does not necessarily cover verges and pavements. Therefore if there is a significant gap between the property and the road, a highway search should be undertaken.

Such Gaps are known as ransom strips, as if that part of the land belongs to another, they are able to prevent accesses or charge a fee for it.

56
Q

What is the effect of a property being located close to a railway line?

A

If the property is located close to a railway line, Network rail will need to be consulted about any proposed development work close to the boundary.

Specific enquires should also be made of the seller as to whether any notices have been served by Network rail and whether any payments have been paid, made, demanded, or are anticipated in respect of the of the maintenance boundary features.

57
Q

When should an Index Map Search (SIM) be undertaken and what does it provide?

A

If the property or part of it appears to be unregistered, a Index Map search should be submitted to HM Land Regisgry, together with a plan and the fee, to verify this.

A Sim should also be undertaken if mines/minerals are reserved from the title, and can be useful for complex sites (ie where there are a number of registered titles to make sure all land is within the relvent titles)

The search will asccertain deails of any registered titles affecting the property, any pending applications for registration, and cautions against registration.

58
Q

When are Land Charges Searches required and what do they show?

A

If the title to the property is unregistered, land charges searches should be made against all relevant estate owners.

A search of the land charges register , using a form K15, identifies land charges that could be binding on a buyer

59
Q

What does a companys search check?

A

If the title to the property is unregistered, land charges searches should be made against all relevant estate owners.

A search of the land charges register , using a form K15, identifies land charges that could be binding on a buyer

60
Q

When are Bank Ruptcy and Insolvency Searches carried out?

A

Although usually pre-completion searches, bankruptcy and insolvency charges must be undertaken at the pre-exchange and repeated pre-completion if the buyer is borrowing to fund the acquisition.

Bankruptcy is used if individuals.

Insolvency for companies.

Property Law and Practice (17 decks)

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