Pre-contract searches and enquiries Flashcards
what should buyer solicitor generally do in relation to pre-contract searches and enquiries? (4)
- standard pre-contract searches and standard pre-contract enquiries must be raised in every transaction
- optional searches may be appropriate in some cases
- title and seller searches may be appropriate depending on the particular title and seller (e.g., unregistered land/company seller)
- additional enquiries will usually be raised as the matter progresses
why does the buyer solicitor conduct pre-contract searches and enquiries? (5)
- caveat emptor = burden on buyer to find out
- to assess if property is suitable for buyer intended use
- to remedy issues before parties are bound to complete at exchange
- allow the buyer to walk away before it is bound if issue is serious
- raises issues which buyer solicitor thought they would find but did not e.g., lack of planning permission or building work consent when they already know building words / change of use occurred
who orders pre-contract searches, when, and from where?
- who = buyer solicitor, lender solicitor if there is no related sale, seller solicitor if seller is dividing a plot and retaining a part of it
- when = as early as possible when draft contract is received from seller solicitor as searches can take weeks
- from where = searches are ordered from the local authority and channel providers - can be ordered online - National Land Information Service acts as an intermediary between solicitors and providers
- there are standard searches (must be done in every transaction), and optional searches (depending on particular circumstances)
Standard searches - always required (5)
1) Local Land Charges Search (LLC1)
2) CON29
3) Desktop Environmental Search
4) Water and Drainage Search
5) Chancel Repair Search
Optional Searches (11)
1) CON29O
2) Highways Search
3) Coal Mining
4) Cheshire salt search
5) Tin, clay, and limestone
6) Environmental Phase I
7) Environmental Phase II
8) Flood Search
9) Railways Search = where property passes near railway
10) Waterways search = where property is near body of water
11) Utility providers = where property is a new development
Local Land Charges Search (LLC1): from where? what does it reveal? (5)
ALWAYS REQUIRED - from local authority
The official search certificate is guaranteed by the local authority as at the date of the local search result
There are 12 parts to the land charges register which reveal matters like:
- planning permissions that have been granted - not refused/pending
- planning enforcement or stop notices
- article 4 directions (restricting GPDO)
- if property is in conservation areas
- listed building status (protected historical buildings)
Form CON29: from where? what does it reveal? (8)
Standard enquiries of the local authority - ALWAYS REQUIRED
- planning permissions granted, refusals, pending applications
- building regulations consents
- certificate of lawfulness
- listed building consent
- roads and public rights of way (such as footpaths)
- whether roads are adopted highway (sufficient for residential not for commercial)
- Environmental notices (including contaminated land notices)
- completion notices
Drainage and water search: what does it reveal?
- ALWAYS REQUIRED
- reveals = whether foul and surface water from the property drain to a public sewer, and whether the property is connected to a main water supply
- if it is not make sure there is a private easement for right to drainage
Desktop environmental search: what does it reveal? (3)
ALWAYS REQUIRED
reveals =
- Flooding likelihood –> enough for when the land is not known to have flooded before ; if it has better do flood search
- Contamination –> if yes, buyer may be liable to clean
- Industrial uses within 250 m of property
Chancel repair search: when is it required?
ALWAYS REQUIRED
- Chancel repair liability affects properties in parishes where there is a pre-reformation church.
- Buyer may be liable to contribute to repair the church roof which is expensive (get insurance).
CON290: what does it reveal?
OPTIONAL ENQUIRY FROM LOCAL AUTHORITY
reveals:
- commons search = find out if property is in a village green (land designated for communal use - very restricted use of land)
- road proposals by private bodies
- national parks
- pipelines
- noise abatement zones
what does a highways search reveal and when must it be conducted?
OPTIONAL
- search shows boundary of public highway and whether it abuts the property
- if it does not abut = ensure there is an adequate right of passage via easement
- not necessary for residential contexts as CON29 is enough but is necessary for commercial context
what are the mining searches?
OPTIONAL - do if you think property is in area where mining is possible
1) coal mining = search identifies risk of subsidence + whether compensation is already paid (so future compensation cannot be paid to buyer)
2) cheshire salt search
3) tin, clay and limestone search
environmental searches and when to do them
1) desktop environmental search - required = likelihood of flood, contamination, industrial use
2) Environmental Phase I - optional = more detailed + includes a site inspection
3) Environmental Phase II - optional = only after Phase I was done and it indicates a risk of contamination
4) Flood Search - optional = where property is known to have flooded before (more detailed than desktop)
what is a waterways search and when is it conducted?
OPTIONAL
- conducted where property has a waterway (river/canal) passing through it or near it
- not used to assess a risk of flood
- reveals = owner liability for maintenance of a river bank or canal, rights of way, drainage and fishing rights, and owner’s liability for flooding
