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Property Law and Practice > Pre-Contract Searches and Enquiries > Flashcards

Pre-Contract Searches and Enquiries Flashcards

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1
Q

What is the report on title?

A

A report that the buyer’s solicitor compiles for its client on the investigation of title, search results, and replies to any enquiries about the property

Should identify material facts in respect of the property, issues and their implications, and any solutions available

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2
Q

List as many of the things that would be included in a typical report on title as possible

A

Interpretation
Scope of review, limitation of liability
Executive summary
Purchase price and other contract terms
The Property
Matters benefitting Property / matters burdening property
Search results
Replies to enquiries
Planning and building regulations
Insurance
SDLT
Summary

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3
Q

Who can use the report on title?

A

Only client - strictly confidential

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4
Q

Who carries out pre-contract searches?

A

Generally, buyer’s solicitor

Sometimes lender’s solicitor may do - example, remortgage, with no associated purchase

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5
Q

What are the two main categories of searches?

A

Standard searches - always needed

Optional searches - depends on particular circumstances

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6
Q

**

What kind of searches depend on the type of seller / title?

A

Land Charges - unregistered land
Index map search
Companies House search

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7
Q

How are searches conducted?

A

Online portal; National Land Information Service

Solicitor should register with a specific service provider and put the address in, and the boundaries of an OS Map

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8
Q

What does the “local search” constitute? Which elements are mandatory versus compulsory?

A

Standard enquiries of the local authority - CON29 - always

Local Land Charges Search - LLC1 - always

Optional additional enquiries - CON29O - sometimes

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9
Q

What will the CON29 form reveal?

A

Planning permissions, refusals and completion notices
Building regulations
Roads and public rights of way
Environmental Notices

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10
Q

What are common examples of enquiries on the CON29O?

A

Common land / town / village green

Road proposals by private bodies

AONBs and national parks

Pipelines

Noise abatement zones

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11
Q

What will a LLC1 form often reveal?

A

Planning permissions which have been granted

Planning enforcement or stop notices

Article 4 directions (restricting the GPDO)

Tree preservation orders

Smoke control orders

Financial charges such as road-making charges

Conservation areas

Listed building status

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12
Q

What changes are currently being made to the Local Land Charges Registers?

A

Slow phased transfer of responsibility from local authorities to Land Registry

Either make local land charges search at Land Registry or Land Charges Registry, depending

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13
Q

What form should be used for Drainage and water search?

A

CON29DW

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14
Q

What does a desktop environmental search reveal?

A

Will show if the property has been used for potentially contaminative land uses

Likelihood of flooding / subsidence / industrial land uses 250m from the property

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15
Q

What would be the appropriate search to do if a desktop environmental search reveals some contamination?

A

Phase 1 / Phase 2 search

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16
Q

What does church chancel repair search reveal?

A

If Property is in a parish where there is a pre-Reformation Church

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17
Q

What does a Highways Search reveal? When is it needed?

A

If roads included in the search are adopted highway

Not often needed for residential properties, but for large scale commercial ones might be necessary to confirm there are appropriate additional rights of access

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18
Q

What does a coal mining search show?

A

Property in an area subject to mining, risk of subsidence, and whether any compensation has already been paid (would prevent further compensation).

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19
Q

What does Cheshire Salt search show?

A

Brine subsidence risk

Similar to coal mining search

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20
Q

What does tin / clay / limestone search show?

A

Specific mineral search - dependent on area

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21
Q

What does an Environmental Phase 1 survey show?

A

More detailed inspection than desktop - site inspection

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22
Q

What does an Environmental Phase 2 survey show?

A

Phase 1 survey shows risk of contamination - soil / water samples tested

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23
Q

When should a utility providers search be made?

A

When a property is a new development or a site for development

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24
Q

When / how should a railways search be made?

A

No standard search - have to enquire after each railway service

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25
When should a waterways search be used?
Shows liability for maintenance of river bank / canal / rights of way for banks / tow paths / drainage and fishing rights DO NOT use to assess flood risk
26
When will a seller provide replies to standard enquiries?
At the beginning of a transaction
27
What are standard replies known as in commercial transactions?
CPSE1 - Commercial Property Standard Enquiries
28
What are standard replies known as in residential transactions?
TA 6 - Property Information Form TA 10 - Fittings and contents form
29
How truthful must a seller be when answering enquiries?
Cannot deliberately mislead buyer - could lead to an action in misrepresentation Can decline to answer enquiries if they have no knowledge of the property
30
What is the effect of the phrase 'not so far as the seller is aware' in a response to enquiries?
Does not absolve the seller of responsibility if the answer should have been yes A seller who answers like this can be taken to have made reasonable investigations into the matter
31
What searches might you make relating to title or seller?
Index map search (SIM) MapSearch Central Land Charge Search - Form K15 Bankruptcy Search Companies House Search
32
What does a SIM show and when might you need to use it?
If property is unregistered / has more than one title - SIM search shows the extent of registered titles and unregistered land. Does not show ownership but useful to show boundaries. Result is guaranteed
33
What does MapSearch show you?
Land Registry search portal tool of registered titles Result is not guaranteed.
34
What does the Central Land Charge Search show?
Unregistered land - looks for land charges against all owners of property in epitome of title
35
When should a bankruptcy search be carried out?
Carried out against seller when transaction is not at full market value
36
What would a companies search show?
Company exists and any security interests that have been given
37
Which search gives the best results for planning permissions?
CON29, as opposed to the LLC1 - gives more details about pending / delayed / denied planning permission applications.
38
When is planning permission needed?
Whenever there is development on land - development = carrying out of certain building works on land or a material change of use of the land
39
What are the exceptions where no planning permission is required?
Interior only building works Building works that do not materially affect the external appearance of the building Material changes of use that are within the same use class
40
When will a change in use class need planning permission, and when will it not?
Yes - change from one class to another Yes - changing from a sui generis class No - changes within class
41
Give examples of sui generis use classes
* Theatres * Amusement arcades * Launderettes * Fuel stations * Pubs and nightclubs * Takeaways where food is mostly consumed off the premises * Concert halls
42
What is the effect of a Town and Country Planning (GDPO) Order 2015?
Acts as a general planning permission which allows certain development without planning permission
43
How can the GDPO be excluded or amended?
Article 4 direction
44
How can you find out whether GDPO has been excluded or not?
Part of the local search
45
What should you do if you are not sure whether a development falls within the GDPO or not?
Apply for a certificate of lawfulness - confirms whether work constitutes 'development' or not, or if it is development, if it does not need planning permission thanks to the GDPO
46
When are planning rules stricter?
Listed buildings Conservation areas
47
What do you need to demolish / alter a listed building?
Listed building consent
48
What is a conservation area?
* Areas of special historic or architectural interest - character / appearance of which is desirable to preserve or enhance
49
What is the effect of a conservation area?
* The GPDO will be restricted – changes to external appearance may require planning permission * In England - planning permission needed to demolish an unlisted building within a conservation area * Wales - Conservation area consent needed to demolish an unlisted building * Consent needed to cut back / cut down trees
50
What will you need to acquire before carrying out work covered by building regulations?
Building regulations consent Certificate of compliance, issued by a building control inspector Self-certification schemes can exist
50
What do the Building Regulations 2010 apply to?
* Erection or extension of a building * Installation or extension of a serve of fitting that is controlled under the Building Regulations * Work required where there is a material change of use of the whole building
51
When has planning permission been breached?
* Development has taken place without planning permission * Condition / limitation of planning permission has been breached
52
How must a buyer's solicitor be cautious regarding breaches of planning permission?
Must check as any breaches of planning permission are enforceable against the current landowner - not the person who caused the breach
53
In order, what options does a local authority have to enforce a breach of planning permission?
Enforcement notice Stop notice Breach of condition notice Injunction
54
What is the effect of a local authority issuing an enforcement notice?
Gives owner 28 days to restore land to original condition, or comply with any conditions / limitations imposed by planning permission After 28 days, landowner can be find, LA can enter land to carry out the work, and recover expenses from the land owner
55
What is the effect of a local authority issuing a stop notice?
Once an enforcement notice has been issued - a stop notice requires that a specified activity e.g. unauthorised use stop immediately Can't prohibit use as a dwelling house or restrict any activity that has been carried out for more than four years
56
What is the effect of a breach of condition notice?
Same as an enforcement notice, but only concerned with breach of conditions / limitations to planning permission
57
What final remedy does a local authority have?
Apply to court for an injunction - discretionary, and must show good reason.
58
What are the pre- 25 April 2024 enforcement time limits for planning permission?
4 years for building works - starting with the date on which building works were substantially completed 4 years for change of use to a single dwelling house - starting with date on which use began 10 years for other changes of use, breach of planning condition
59
What are the post- 25 April 2024 enforcement time limits for planning permission?
10 years for all breaches
60
Can the local authority enforce a planning permission outside time limits for planning permission?
Yes - can apply to the magistrates' court for a planning enforcement order, if a breach has been deliberately concealed
61
What enforcement options exist for breach of building regulations in Wales?
Prosecution: LA has 6 months after discovering a breach to prosecute the person responsible in MC. Unlimited fines can be imposed. Can take place up to 2 years after completion of work. Enforcement notice: 1 year to serve, gives landowner 28 days to alter / remove violation. Injunction - if work is unsafe, no time limit applies here.
62
What enforcement options exist for breach of building regulations in England?
Prosecution: LA has unlimited time to prosecute person responsible for breach in MC Enforcement notice: LA has 10 years after completion of the building work to serve an enforcement notice Injunction: If work is unsafe
63
What options does a buyer have available when discovering a breach of planning or building regulations?
Withdraw from transaction - drastic Obtain indemnity insurance - usually at seller's expense - only covers financial loss for enforcement; no cover re health + safety + claims for PI / death Invite seller to regularise matters pre completion: - Seller could get retrospective planning permission - Regularisation certificate for works
64
Which form should commercial property enquiries be on?
Commercial Property Standard Enquiries form Any specific enquiries tacked on
65
Which form should residential property enquiries be on?
Law Society Conveyancing Protocol - TransAction form Buyer's solicitor should only add any specific enquiries here in limited circumstances
66
What does CPSE1 include?
Responsibility for boundaries and their extent Rights Access physical condition contents utilities and services planning and building regulations occupiers and employees notices and disputes VAT
67
When is CPSE2 used?
Where property is subject to commercial tenancies
68
When is CPSE3 used?
Grant of a new commercial lease
69
Which forms are always used for residential property enquiries? What do they include?
TA6 - Property Information Form Boundaries Rights Disputes Alterations Planning and building regs Occupiers Services and utilities Energy efficiency TA10 - Fittings and contents form
70
Which forms are sometimes used for residential property enquiries? What do they include?
TA7 - Leasehold information form - used if property is a long leasehold TA8 - New home information form
71
What is the difference between ability to raise additional enquiries in commercial transactions versus residential ones?
* Commercial transactions: buyer’s solicitor can raise whatever enquiries they like  seller’s solicitor may decline to respond to enquiries they feel are irrelevant, would incur too much time, etc * Residential transactions: buyer’s solicitor may only raise additional enquiries to clarify issues arising out of the documents provided or which are relevant to title, existing or planned use, nature or location of the property * Should NOT raise enquiries about: o State and condition of building o Standard replies to enquiries o Inspection of their surveyor’s report
72
How do solicitors often limit responsibility for incorrect replies to pre-contract enquiries?
Standard conditions which limit buyer's ability to rescind the contract
73
What must a seller's solicitor consider regarding CPSEs?
Work alongside client to answer questions Check replies against any information you already have Careful with stock answers - check client approves before sending
74
What are the aims of the Law Society Conveyancing Protocol?
* Make conveyancing process more efficient and transparent to the benefit of all parties in volved * Set of steps to take when acting in sale or purchase of a home for an owner / occupier * Not appropriate for new build homes * Voluntary – can be adopted by anyone * Transparency remains subject to client confidentiality * Solicitors who are members of Law Society’s Conveyancing Quality Scheme - must adopt Protocol and undergo specific training
75
What is the key feature of the Law Society Conveyancing Protocol?
Buyer’s solicitor should only make enquiries that are essential to act in their client’s best interests
76
When might a solicitor breach the Law Society Conveyancing Protocol?
Use non-protocol standard enquiries indiscriminately Raise enquiries that seek seller’s opinion, not facts Seller’s solicitor should confirm and update, where necessary, replies to enquiries if completed more than two months earlier Seller’s solicitor does not have to deal with any enquiries that do not comply with the Protocol Breaching Protocol If you adopt Protocol  obliged to comply with terms and act within the spirit of the Protocol Law Society may require an explanation, may monitor solicitor + remove from Conveyancing Quality Scheme

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