Pre-contract searches and enquiries Flashcards
Report on title?
Report on title – is the report in which a BUYERS solicitor depicts the investigation of title, search results and replies to enquiries. It will identify:
Buyers’ solicitor needs to find out as much as possible about a property before exchange because of caveat emptor
- Material facts in respect of the property
- Issues and their implications
- Solutions available
Typical contents of a report on title
Scope of review and imitation on liability: - Will be addressed to client and confidential and should not be relied upon by anyone else.
- It should state that it’s based on reviewing the documents and results. So that a solicitor will not be at fault if something should have been included in the searches and wasn’t.
- ‘We express no opinion on the commerciality of the transaction. We are unable to advise on the value of the Property.’
Searches purpose?
Purpose of searches: buyers’ solicitor is usually responsible for ordering searches, however sometimes sellers might do this for example when the seller is selling plots of residential development to a no of different buyers.
Searches should be submitted early in the transaction, usually ordered after solicitor has received a draft contract and title from seller’s solicitor.
Searches are conducted through the online portal. The national land information service acts as an intermediary between solicitors and various institutions.
Standard searches? Local search and search of local land charges - CON29 AND LLC1? MANDATORY?
o Covers all matters relating to the property within the knowledge and record of the LA. 3 parts:
o standard enquiries of local authority – form con29 – LA gives replies based on its record on matters such as planning and building regulations, roads and public rights of ways
planning consents, building regulations, roads and public rights of way, environmental notices.
o Optional enquiries corm con290 – only in specific situations.
Common land and town or village green, road proposals by private bodies, areas of outstanding natural beauty, pipelines, noise abatement zones.
ALSO ABOUT info of contaminated land
o Local land searches LLC1 – each la keeps a register of local land charges, may require a payment of money to bring something up to standard or may affect property like a listed building.
There are 12 parts:
Planning permission that’s been granted
Planning enforcement or stop notices
Article 4 directions tree preservation orders
Smoke control orders
Drainage and water enquiries? MANDATORY?
o Dealt with by relevant water companies. Checks whether surface water form property drain to public sewer and whether connected to mains water supply.
- Desktop environmental search - MANDATORY
o Should always be considered because owner may be liable for costs of cleaning contaminated land even if they themselves have not caused the contamination.
o Contains info on likelihood of flooding within 250 meters of the property.
Chancel repair liability? Mandatory?
o Effects where property is in parishes where there is a pre-reformation church. Responsibility for church roof was shares between the church and parishioners.
FOLLOWING MUST BE DEPENDING ON TITLE AND SELLER?
- Land searches search (unregistered)
- Searches of the index map (unregistered or register land subject to mineral rights)
- Companies search
Index map search (SIM
- where property is unregistered r comprises of one or more title- the index map shows extent of registered and unregistered land within area searched.
Map search
- Land registry contains a free searchable map of registered titles. Useful reference tool
Central land search (k15)
- where property is unregistered, carried out against full names of sellers and previous owners in epitome of title
Bankruptcy search
- if transaction is not at full market value
Companies search
- To check company is in existence
Optional searches?
Depending on transaction and property:
- CON290 (including commons registration search)
o More often relevant for commercial land
o Check for public greens and public rights
- Highways search
o Shows boundary of highway on map. - Coal mining search
o When it falls in aeras where it could be subject to coal mining. Search identified risk of subsidence and whether any compensation has or can be paid. - Cheshire salt
o Brine subsidence in parts of Cheshire. - Tin, clay and limestone
o Specifically for minerals indicated - phase 1/phase 2 survey
o more detailed than standard desktop search, taken where it’s indicated that risk of contamination. - Flood search
o When property is known to have flooded in the past. - Utility providers
o Where property is a new development or a site for development - Railways
o Where a railway passes near the property or property may be within proximity of proposed railways. - Waterways
o Where it has a waterway passing through or next to it
Planning permission?
Buyers solicitor should consider whether any planning permission has been consented,
Development – carrying out certain building works, or a material change to use of land.
BUYERS SOLICITOR NEED TO CHECK THAT
- PLANNING PERMISSION
- BUILDING REGULATIONS
PLANNING PERMISSION
Needed unless falls into exceptions
- Building works that only affect the interior of building
- Building works that do not materially affect the external appearance of the building
- Changes of use that are within same class
Classes are defined in Town and Country planning order 1987 – letters with numbers.
Some are sui generis – miscellaneous – defies classification – like theatres, amusement arcades, laundrettes.
Permitted development – The town and country planning order 2015 GDPO allows certain development without planning permission.
- It can be excluded or amended in locality by an article 4 direction.
- As such an enquiry needs to be made to the LA to see whether it has been excluded or amended.
Listed building
- Are of special architectural or historical interest.
- Listed building consent is needed to demolish
Conservation areas
- LA is under a duty to designate conservation areas within its locality.
Building regulations?
Building regulations approvals
- Concerned with making sure external or internal works are carried out properly.
Separate to planning
Building act 1984 - creates a statutory system under which building regulations are creates and adapted using secondary legislation building regulations 2010 – applies to building work which included
- Erection or extension of a building
- Installation or extension of service
- Work required whether there is a material change to use of building
Need consent and approval
- Building control inspector may inspect work and if work aligns with relevant regulations – inspector will issue a certificate of compliance
- For certain types of work there are self-certification schemes – where the workers can certify their own work and this certificate is lodged with the building control department of the LA.
Planning permission: enforcement?
breach of planning control is when:
- Development has taken place without planning permission
- Condition or limitation of planning permission has been breached
LA have different enforcement options:
- Enforcement notice – LA gives 28 days’ notice that land must be restored to condition it was in before – or comply with any conditions or limitations imposed by planning permission – after 28 days land owner may be fined and la can another land to carry out the work recovering its expensed from the land owner.
- Stop notice – only after serving an enforcement notice – requires activity to stop immediately – cannot prohibit use as dwelling house or any activity that has been carried out for more than 4 years.
- Breach of condition notice – only concerned with breach of conditions or limitations to planning permissions
- Injunction – LA can apply to court
Planning and building regulations enforcement?
Planning permission
4 years
- Building works – starting with the date on which the building works were substantially completed
- Change of use to single dwelling house
10 years
- Other changes of use
- Breach of planning condition
Building regulations
- 6 months for prosecution of person responsible
- 12 months for statutory enforcement
- No time limit on enforcement action through court injunction
Solutions to planning permission breaches and building regs breaches?
Planning permission
- indemnity insurance
-retrospective planning permission
-comply with the condition
Building regulations
-indemnity insurance
-regularisation certificate
-remedial work
Enforcement outside of time limits – where it was deliberately concealed
Building regulations enforcement
Prosecution: LA has 6 months after discovering breach to prosecute – unlimited fines may be imposed
Enforcement notice – one year after completion
Injunction – LA can apply if work is unsafe – NO TIME LIMIT
Pre-contract enquiries?
Seller will usually know much about property that is not readily available in public record or inspection
A seller providing replies should take care to provide correct info – nonetheless a buyer solicitor will usually this is info to complement other investigations.
Residential properties – protocol forms
- TA 6 – Property info form –
o Boundaries
o Rights benefitting or burdening
o Disputes complains
o Alterations
o Planning and building regulations
o Service
o Occupiers
o Energy efficiency
- Ta10
o Always used – identified any fitting and contends included or excluded in sale - Ta7 – leasehold info
o Where property is a long leasehold - Ta8 – new home info – where its newly built
Commercial enquiries?
Commercial properties – Commercial property standard enquiries (CPSE) 1
- Responsibility for boundaries
- Right benefitting and burdening
- Access to the property
- Physical condition
- Contents
- Utilities planning and building regulations
- Occupiers
- Notices and disputes
- Vat treatment
CPSE 2 – applies where property is subject to commercial tenancies – like an office block
CPSE 3- applies in grant of new lease
CPSE 4- 6 other specific circumstances
