RE4/5
Pre-contract Investigations: Searches and Enquiries
Searches
Why do we do Buyer’s solicitors make searches due to doctrine of CAVEAT EMPTOR – buyer beware
searches? Seller’s duty to disclose is limited, so searches are necessary to protect buyer
If solicitor doesn’t make the searches they should do, solicitor be liable for professional negligence
Results of searches can afford protection: if suffer loss as a result of an error in official certificate of
search, compensation may be payable under s10 of LLCA 1975
When should All searches should not be more than a maximum of six months old at completion (Lenders Handbook
we do para 5.2.3) to satisfy (assuming is being taken out by buyer) – however, two months is the usual limit in
searches? practice.
When searching, think about what is not in the results that you might have expected to find.
General While conducting necessary searches, the solicitor should consider whether planning permission will
considerations need to be obtained and whether the seller or predecessors obtained the necessary planning
permissions and building regulation approvals. This will affect buyer’s future use and potential liability.
Role of buyer’s solicitor
Buyer’s solicitor must:
obtain all relevant information
thoroughly analyse it
provide clear, concise and coherent advice
Failure to pursue an unsatisfactory reply from the seller which results in loss being suffered by
the client, may result in the buyer’s solicitor being liable to his own client in negligence:
Computastaff Ltd v Ingledew Brown Bennison & Garret (1983).
The contract should not be finally approved by the buyer’s solicitor or exchanged until
satisfactory results of all searches have been received.
Passing on search results
Once you get your search results, if any are unsatisfactory, pursue them
If not done, you are potentially liable to client in negligence (Computastaff v Ingledew Brown
Bennison & Garrett)
Always communicate the results to your client
A buyer has imputed knowledge of everything his solicitor knows
A lender can rely on searches made by a buyer’s solicitor
Where the seller has made his own searches, the buyer may choose to rely on a seller’s searches
or repeat them himself
1
, RE4/5
Planning permission
A buyer’s solicitor should ensure that a property has all necessary planning permissions
and building regulation approvals.
Pg 73 PLP
Does the activity Planning permission is required for the “development” of any land (s57 Town and Country Planning Act
constitute 1990).
development? “Development” (s55)
o Building, engineering, mining or other operations in, on, over or under land, or
o The making of any material change in the use of any buildings or other land.
Excludes: (s55(2))
o Alterations which only affect the interior of the building.
o Dwelling house alterations that are consistent with its use as a dwelling – e.g. turning garage into
study
o Where the change of use is to a use in the same class under the Town and Country Planning (Use
Classes) Order 1987 (UCO).
o Changes from specified commercial uses (or mixed specified commercial and residential uses) to
Class C3 (residential)
Town and Country Planning (Use Classes) Order 1987
Part A:
A1 Shops - Shops, retail warehouses, hairdressers, undertakers, travel and ticket
agencies, post offices, pet shops, sandwich bars, showrooms, domestic hire shops, dry
cleaners, funeral directors and internet cafes.
A2 Financial and professional services - Financial services such as banks and building
societies, professional services (other than health and medical services) and including
estate and employment agencies. It does not include betting offices or pay day loan
shops - these are now classed as “sui generis” uses.
A3 Restaurants and cafés - For the sale of food and drink for consumption on the
premises - restaurants, snack bars and cafes.
A4 Drinking establishments - Public houses, wine bars or other drinking establishments
(but not night clubs).
A5 Hot food takeaways - For the sale of hot food for consumption off the premises.
Part B:
B1 Business - Offices (other than those that fall within A2), research and development
of products and processes, light industry appropriate in a residential area.
B2 General industrial - Use for industrial process other than one falling within class B1
(excluding incineration purposes, chemical treatment or landfill or hazardous waste).
B8 Storage or distribution - This class includes open air storage
Part C
C3 Dwelling houses
Part D
D1 Non-residential institutions - Clinics, health centres, crèches, day nurseries, day
centres, schools, art galleries (other than for sale or hire), museums, libraries, halls,
places of worship, church halls, law court. Non residential education and training
centres.
D2 Assembly and leisure - Cinemas, music and concert halls, bingo and dance halls (but
not night clubs), swimming baths, skating rinks, gymnasiums or area for indoor or
outdoor sports and recreations (except for motor sports, or where firearms are used).
2
Pre-contract Investigations: Searches and Enquiries
Searches
Why do we do Buyer’s solicitors make searches due to doctrine of CAVEAT EMPTOR – buyer beware
searches? Seller’s duty to disclose is limited, so searches are necessary to protect buyer
If solicitor doesn’t make the searches they should do, solicitor be liable for professional negligence
Results of searches can afford protection: if suffer loss as a result of an error in official certificate of
search, compensation may be payable under s10 of LLCA 1975
When should All searches should not be more than a maximum of six months old at completion (Lenders Handbook
we do para 5.2.3) to satisfy (assuming is being taken out by buyer) – however, two months is the usual limit in
searches? practice.
When searching, think about what is not in the results that you might have expected to find.
General While conducting necessary searches, the solicitor should consider whether planning permission will
considerations need to be obtained and whether the seller or predecessors obtained the necessary planning
permissions and building regulation approvals. This will affect buyer’s future use and potential liability.
Role of buyer’s solicitor
Buyer’s solicitor must:
obtain all relevant information
thoroughly analyse it
provide clear, concise and coherent advice
Failure to pursue an unsatisfactory reply from the seller which results in loss being suffered by
the client, may result in the buyer’s solicitor being liable to his own client in negligence:
Computastaff Ltd v Ingledew Brown Bennison & Garret (1983).
The contract should not be finally approved by the buyer’s solicitor or exchanged until
satisfactory results of all searches have been received.
Passing on search results
Once you get your search results, if any are unsatisfactory, pursue them
If not done, you are potentially liable to client in negligence (Computastaff v Ingledew Brown
Bennison & Garrett)
Always communicate the results to your client
A buyer has imputed knowledge of everything his solicitor knows
A lender can rely on searches made by a buyer’s solicitor
Where the seller has made his own searches, the buyer may choose to rely on a seller’s searches
or repeat them himself
1
, RE4/5
Planning permission
A buyer’s solicitor should ensure that a property has all necessary planning permissions
and building regulation approvals.
Pg 73 PLP
Does the activity Planning permission is required for the “development” of any land (s57 Town and Country Planning Act
constitute 1990).
development? “Development” (s55)
o Building, engineering, mining or other operations in, on, over or under land, or
o The making of any material change in the use of any buildings or other land.
Excludes: (s55(2))
o Alterations which only affect the interior of the building.
o Dwelling house alterations that are consistent with its use as a dwelling – e.g. turning garage into
study
o Where the change of use is to a use in the same class under the Town and Country Planning (Use
Classes) Order 1987 (UCO).
o Changes from specified commercial uses (or mixed specified commercial and residential uses) to
Class C3 (residential)
Town and Country Planning (Use Classes) Order 1987
Part A:
A1 Shops - Shops, retail warehouses, hairdressers, undertakers, travel and ticket
agencies, post offices, pet shops, sandwich bars, showrooms, domestic hire shops, dry
cleaners, funeral directors and internet cafes.
A2 Financial and professional services - Financial services such as banks and building
societies, professional services (other than health and medical services) and including
estate and employment agencies. It does not include betting offices or pay day loan
shops - these are now classed as “sui generis” uses.
A3 Restaurants and cafés - For the sale of food and drink for consumption on the
premises - restaurants, snack bars and cafes.
A4 Drinking establishments - Public houses, wine bars or other drinking establishments
(but not night clubs).
A5 Hot food takeaways - For the sale of hot food for consumption off the premises.
Part B:
B1 Business - Offices (other than those that fall within A2), research and development
of products and processes, light industry appropriate in a residential area.
B2 General industrial - Use for industrial process other than one falling within class B1
(excluding incineration purposes, chemical treatment or landfill or hazardous waste).
B8 Storage or distribution - This class includes open air storage
Part C
C3 Dwelling houses
Part D
D1 Non-residential institutions - Clinics, health centres, crèches, day nurseries, day
centres, schools, art galleries (other than for sale or hire), museums, libraries, halls,
places of worship, church halls, law court. Non residential education and training
centres.
D2 Assembly and leisure - Cinemas, music and concert halls, bingo and dance halls (but
not night clubs), swimming baths, skating rinks, gymnasiums or area for indoor or
outdoor sports and recreations (except for motor sports, or where firearms are used).
2
