Pre-contract Searches and Enquiries Flashcards
(34 cards)
What is the report on title?
A report on title is the report in which a solicitor reports to its client on the its investigation of title, search results and replies to enquiries. It can take the form of a letter or a standalone document.
The report on title will identify:
- Material facts in respect of the property
- Issues and their implications
- Solutions available
It will summarise, and put into plain English for the client, the solicitor’s findings.
Typical contents page of a report on title:
Interpretation Scope of the review and limitation of liability Executive summary Purchase price and other contract terms The Property Matters benefiting the Property Matters burdening the Property Search results Replies to enquiries Planning and building regulations Insurance Stamp Duty Land Tax Conclusion
What is the solicitor’s liability regarding the report on title?
- The report will state any limitations to the solicitor’s liability and any matters that are not considered
- CCS 6.4 requires that a solicitor inform their client fully of material facts to their transaction
- CCS 8.6 requires that a solicitor give their client information in a way that they can understand
- A client should not proceed to exchange of contracts until they have read the report on title and fully understand what they are buying
What searches are standard?
Standard searches:
- “Local search” – enquiries of the local authority (CON29) and search of the local land charges (LLC1)
- Drainage and water enquiries
- Desktop environmental search
- Chancel repair liability
Depending on type of title/seller:
- land charges search (unregistered land)
- search of the index map (unregistered or registered land subject to mineral rights)
companies search
What are the optional searches?
- CON29O (including commons registration search)
- Highways search
- Coal mining search
- Cheshire Salt
- Tin, clay and limestone
- Phase I/Phase II survey
- Flood search
- Utility providers
- Railways – overground, underground, crossrail or HS2
- Waterways
What is the NLIS?
National Land Information Service (NLIS)
Traditionally, searches had to be raised by sending letters or forms to the appropriate institutions.
Nowadays, most solicitors order searches via an online portal. The National Land Information Service act as an intermediary between solicitors and the various institutions. The solicitor will need to register with a ‘channel provider’. Examples are Searchflow, Thames Water Property Searches, Big Property Data and Index.
The solicitor (or a secretary or assistant) inputs the address of the property, and can sketch the boundaries on an Ordnance Survey map.
Some searches will be available almost immediately, but others can still take several weeks.
What is the local search?
The “local search” covers all matters relating to the property within the knowledge/records of the local authority. It comprises three parts which are usually ordered together:
Optional enquiries (Form CON29O)
These are usually only ticked in specific circumstances, such as the commons search (enquiry 22)
Standard enquiries of the local authority (Form CON29)
The local authority gives replies based on its records as to various matters such as planning and building regulations, roads and public rights of way.
Local Land Charges Search (LLC1)
Each local authority keeps a register of local land charges.
Local land charges may require the payment of money (such as to bring a road to adoptable standard) or may affect the use of the property (such as a listed building status)
What is the CON29?
The “local search” – CON29
Replies to the standard enquiries of the local authority (CON29) will reveal information about the property and its immediate surroundings, such as:
- planning consents, refusals and completion notices
- building regulations
- roads and public rights of way (such as footpaths)
- Environmental notices (including contaminated land notices)
Examples of optional enquiries (CON29O) are:
- Common land and town or village green (land which is designated for communal use is very restricted)
- Road proposals by private bodies
- Areas of outstanding natural beauty and national parks
- Pipelines
- Noise abatement zones
What is the LLC1?
The “local search” – LLC1
The local land charges search (LLC1) is a search of the local authority’s register of local land charges
There are 12 parts to the land charges register which will reveal matters such as:
- planning permissions that have been granted
- planning enforcement or stop notices
- article 4 directions (restricting the General Permitted Development Order)
- tree preservation orders
- smoke control orders
- financial charges such as road-making charges
- conservation areas
- listed building status
What is the Drainage and Water Search?
Questions about drainage and water specific to the property are dealt with by the relevant water service company for the area.
For example, in Leeds, the search would be raised with Yorkshire Water.
The search checks matters such as whether foul and surface water from the property drain to a public sewer, and whether the property is connected to a mains water supply.
Form CON29DW enquiries (residential property) or CommercialDW enquiries (commercial property) are submitted to the relevant water company.
What is a desktop environmental search?
An environmental search should always be considered. This is because an owner may be liable for the costs of cleaning up contaminated land, even if not responsible for the contamination.
Some information is given in the local search, but only whether notices have been served. A desktop search is based on historical records and will indicate if the property has been used for potentially contaminative land uses (for example, industrial).
It also contains information on the likelihood of flooding and susceptibility to natural subsidence, and industrial land uses within 250 metres of the property.
What is a chancel repairs search?
Chancel repair liability affects properties in parishes where there is a pre-Reformation church. Responsibility for repair of the church roof was shared between the church and the parishioners. It can be very expensive if the parish church claims this.
This search is therefore usually carried out as standard, and if the search shows the potential for liability, indemnity insurance is readily available to cover the risk.
What is a highways search?
The local search (specifically CON29) will show whether roads included in the search are adopted highway (ie, maintained by the local authority at its expense for public use).
For most residential properties, this will usually be sufficient, as it will be clear that the property immediately abuts the highway. However, where there is any doubt, or for most commercial properties, a highways search is needed.
The highways search shows the boundary of the public highway on a map. If the results show that the property does not immediately abut the highway, then it will be necessary to ensure that there are appropriate rights of access.
What are the other environmental searches?
Coal mining (CON29M) - When property falls within an area that could be subject to coal mining. Areas affected by coal mining are listed in a gazetteer, which is freely available. The search identifies the risk of subsidence, and whether any compensation has already been paid (which will mean no future compensation can be paid).
Cheshire Salt search - When property falls within an area that could be subject to brine subsidence (parts of Cheshire). Similar to coal mining search (and some search companies incorporate it in the coal mining search)
Tin, clay and limestone - Similar to coal mining search, but specifically for the minerals indicated. Like other mineral searches, it is dependent on area (eg, there were tin mines in Cornwall and Somerset).
Other searches - environmental
Environmental Phase 1 Survey - This is more detailed than the standard desktop environmental search and includes a site inspection.
Environmental Phas 2 Survey - This will be taken where Phase 1 study indicates risk of contamination. Soil/water samples are tested to indicate whether there is contamination or not.
Flood search - Where property is known to have flooded in the past. Desktop flooding search goes into more detail than desktop environmental search.
What other miscellaneous searches might be conducted?
Utility providers - Where property is a new development or a site for development.
Checks that the property has the benefit of utility connections (electricity, gas, telecom, broadband, etc)
Railways - Where a railway passes near the property or property may be within proximity of proposed railway.
There is no standard railway search, but specific enquiries may be made of Network Rail or the relevant railway company (London Underground, Crossrail, HS2, etc) about such issues as access rights across the property
Waterways search - Where property has a waterway (river or canal) passing through or next to it.
Search shows liability for maintenance of river bank or canal, rights of way for banks and tow paths, drainage and fishing rights, and owner’s liability for flooding (but do not use to assess flood risk).
What are the different replies to standard enquiries?
Commercial property – the standard replies to enquiries are known as CPSE1 (Commercial Property Standard Enquiries). There are additional CPSE forms (CPSE2, CPSE3, etc) for different transactions.
Residential property – the standard forms are:
- Property information form (Form TA6) – contains information about boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters, etc
- Fittings and contents form (Form TA10) – items that are included or not in the sale, such as curtains, light fittings, carpets, etc
Does the seller have to respond to enquiries?
The replies rely on the seller being co-operative and truthful.
A seller may decline to answer enquiries if they have no knowledge of the property (eg, an executor of a deceased’s estate)
The seller cannot deliberately mislead the buyer, by concealing physical defects or answering enquiries dishonestly. A misleading statement may give rise to an action in misrepresentation.
“Not so far as the seller is aware”
This phrase does not absolve the seller of responsibility if the answer should have been “yes”.
What are the searches relating to title?
Index map search (SIM) - Where the property is unregistered, or comprises more than one title (registered or unregistered) or the registered title refers to mineral rights.
The index map search shows the extent of registered titles and unregistered land within the area searched. It does not show ownership, and the official copies must be ordered if this information is required.
MapSearch – The Land Registry portal contains a free searchable map of registered titles. It is a useful reference tool, but unlike an index map search, the Land Registry do not guarantee the result.
Central Land Charge Search (Form K15) (Don’t confuse this with the local land charges register (part of the local search!) - Where the property is unregistered, the central land charge search is carried out against the full names of the seller and all previous owners referred to in the epitome of title (refer to notes on investigating title)
What are the searches relating to the seller?
Bankruptcy search (K16) - This is usually only carried out against the seller if the transaction is not at full market value.
This is also carried out at the Central Land Charges Registry.
It is carried out against a buyer taking a mortgage, but this will be dealt with in Week 5.
Companies Search - If the seller is a company, then a company search should be made to check that the company is in existence, and has not gone into liquidation or been dissolved.
This also shows security interests that the company has given.
Central Land Charge Search (Form K15) - Where the property is unregistered, the central land charge search is carried out against the full names of the seller and all previous owners referred to in the epitome of title (refer to notes on investigating title)
What is the local search?
The local search is carried out in every transaction whether residential or commercial and is one of the most important searches to carry out.
The local search is the name used in practice for a combination of various searches which you have probably already heard about. It comprises the local land charges search [or LLC1] [and the local authority enquiries being the standard enquiries using CON29 form and the optional enquiries using CON29O form.
Where is can you find information about planning permission and building regulations?
While there is some overlap between the LLC1 and the CON 29 in relation to planning information, the key difference is that the LLC1 will only give you details of what planning permissions have been granted, the CON 29 will give you some more information.
The CON 29 will tell you about what planning permissions have been granted, and in addition it will actually tell you what planning refusals there have been and also what applications are currently going through so it gives a wider picture of the planning applications for the property.
The Con 29 also informs you whether Building Regulations Approvals and Building Regulations Completion Certificates have been obtained for works carried out.
Where can you find information about roads and highways?
In relation to roads, the main question on the CON 29 is: are the roads adjacent to the property actually adopted i.e. public highways, or not?
One of the key issues when looking at any private right of way benefitting a property is will it be adopted? The CON 29 tells you of any current adoption plans.
NB Highways Search
Just a point here to mention you might remember we would always carry out a highways search – but you might be thinking why do the highways search when the CON29 confirms the road situation?
The highways search tells you the exact boundary between private land and the highway with reference to a plan. It is carried out so that a buyer can ensure that the property they intend to purchase either;
· Abuts a public highway; or
· Any right of way, which the land has the benefit of, abuts the public highway.
This is slightly different information to what the local authority enquiries tell you, as they simply say whether a particular road is adopted or not, and do not go on to look at the boundaries between the public highway and the property or any private land
When is planning permission needed?
Planning permission is needed whenever there is development on land, unless it falls within certain exceptions, such as:
- building works that only affect the interior of the building; or
- building works that do not materially affect the external appearance of the building; or
- changes of use that are within the same use class (s3(1), The Town and Country Planning (Use Classes) Order 1987
What is sui generis?
- Some uses are sui generis, meaning that they are do not belong to a use class – this means that any change to or from that use will require planning permission
- Theatres
- amusement arcades
- launderettes
- fuel stations
- pubs and nightclubs
- takeaways where food mostly consumed off the premises
- concert halls
What is the GPDO?
The Town and Country Planning (General Permitted Development) Order 2015 (known as the ‘GPDO’) allows certain development without planning permission. It operates like a general planning permission.
Permitted development will need to fall within the conditions set out; otherwise, planning permission will be needed.
The GPDO can be excluded or amended in a locality by an Article 4 Direction, in which case the proposed development will need planning permission
If proposing to rely on the GPDO, therefore, an enquiry should be made of the local authority whether the GPDO has been excluded. This enquiry is part of the local search.
If unsure whether a development falls within the GPDO, it is possible to apply for a certificate of lawfulness. This is not planning permission but confirms that the work either does not constitute “development” or if it does, that it falls within the GPDO
