Title investigation, searches and standard enquiries
- Investigation of title
Property register - describes the property and rights benefiting
- Extracted or not extracted rights (if not extracted, you need a copy of the document)
o Right of way – adequacy, maintenance, adoption, registration
o Right to lay pipes for water and sewerage
o Rights of light – express grant by deed or acquired by prescription (enjoyed without interruption for a
period of at least 20 years from the date on which the action asserting the right begun and was
enjoyed without any written consent
This can be expressly excluded
- Remedy for obstruction of an easement is an action for nuisance.
o Claimant will have to prove: title to the easement, the scope of the easement, and there has been
substantial interference of the right
o In the case of an obstruction on the right of way, it’s only actionable if considered substantial – can the
right be substantially and practically exercised as conveniently as before?
Proprietorship register – gives the class of title, owner’s name and address, entries affecting the owner’s right of
disposal, any indemnity covenant given by the proprietor and the price when last bought
- Title absolute (F or L), qualified title (F or L), possessory title (F or L), good leasehold (L)
- See also = execution clauses
- Proprietorship register will have a restriction and that will indicate if tenants in common – check wording of the
restriction (can appoint a second trustee)
- See copy of grant of representation when dealing with a personal representative
Charges register – charges burdening the property (third party rights, covenants, mortgages)
- Interests binding the buyer will be registered on the charges register or overriding registered dispositions.
Most common charges discussed below
o Mortgages – always protected by two entries (may also be on the proprietorship register too)
o Restrictive covenants – either fully set out in the register or by reference to a document filed at the
land registry. PWB can obtain an injunction and also receive damages. NOTE: S.19(1) FSMA
Check past breaches > was consent obtained? If yes, need proof, if not, explore restrictive
covenant insurance, approach PWB for retrospective consent, or apply to Upper Tribunal
(Lands Chamber) under s.84 LPA for waiver/discharge/modification to the restrictive covenant
Check whether the buyer’s proposed plans will constitute a breach in the future > if they will,
look into restrictive covenant insurance (likely to be more expensive in these circumstances),
if not then approach PWB/apply to Upper Tribunal
o Positive covenants > do not run with the land. The indemnity will be mentioned on the. charges
register – SCPC – it must also be put in the contract
Past and future breaches > past breaches are remediable by the seller taking action to
perform prior to purchase. For future breach, can get insurance or PWB’s consent.
Unregistered interests overriding registered dispositions
- Burdens – s.3 LRA lists unregistered interests that will override on a sale of registered land
o Easements – if created by deed needs to be registered. Exception is if it was created pre-13 Oct 2003
o Leases – of not more than 7 years will be overriding. Where granted pre-13 Oct 2003, leases of not
more than 21 years will be overriding
o Interests of persons in actual occupation > should come up through pre-contract enquiries or through
client’s inspection. Need to sign a waiver of any possible interest and agree to vacate. Need to ensure
they obtain independent legal advice
- CCS 6.4 duty to make sure client is aware of all information and 8.6 to give information in a way they can
understand and make informed decisions
Provision Summary
(TOLATA)
14 Any trustee of land/any person with interest in the property can apply to the court for a proposed court
of action (e.g. sale)
15 Guidance for the court on things to consider when determining an application under s.14: the intention
of the person(s) who created the trust, the purpose(s) for which the property subject to the trust is held,
the welfare of any minor and the interests of any secured creditor of any beneficiary
,Local authority consents, pre-contract searches and standard enquiries
Planning permission
(See also: flowchart re. whether this is required)
- Past works/changes of use – if there has been a breach (which is still within the enforcement period), must
ensure this is dealt with before the purchase by putting a special condition in the contract. Also look with
regards to buyer’s proposed uses
- Breach of planning legislation
o Enforcement notices: land be restored/secure compliance with any conditions or limitations
o Stop notices
o Planning contravention notices – flush out information about potential planning breaches
- Limitation periods (s.171B TCPA)
o Building works with no planning permission – 4 years following substantial completion
o Material changes of use – 10 years from date o change of use, unless the change of use is to a single
dwelling house, whereby the time limit is 4 years
o Breach of condition attached to planning permission – 10 years from date of breach (check whether
the condition was on-going)
o No time limit for concealment of development
- Listed buildings > consent required for internal or external building works > criminal sanctions and no time
limits
- Conservation areas > stricter planning controls may include:
o Art 4 direction – restriction on what is permitted development, so planning permission is still required
o Onerous planning conditions – type/quality of paint etc. No time limit.
- Building regulations – buildings have to be constructed in a way that complies with certain rules > separate
and additional to planning permission. Commenced within 3 years of building regulations approval. After
satisfactory completion, get a Building Regulation Completion Certificate.
o Local authority can make proceedings within 12 months of any infringement, however s.36(6) Building
Act allows an application at any time for an injunction.
o Cottingham v Attey Bower and Jones – solicitor needs to take all practical and reasonable steps to get
copies of approvals or it can amount to negligence
o May obtain a regularisation certificate if no approvals, or get insurance
Provision Summary
57(1) TCPA planning permission is required for “development”.
55(1) TCPA Defines development – (a) building works or (b) material change in use
55(1A) – building works are demolition, building, structural alterations, any other operations by builder
55(2)(a) – not building works: affect only interior, not materially affect external appearance, not
provide additional space underground
GPDO Permitted developments (do not need consent) - Limited application for commercial properties to
building works - can construct fences/gates, buy access to highway, paint the building, put in charging
outlets for electric vehicles, and install CCTV cameras
But note: LPA Article 4 direction
S171B TCPA Building works carried out without planning permission, enforcement action within 4 years following
substantial completion
Material changes of use; 10 years from change of use unless to a single dwelling house, then 4 years
Breach of condition – 10 years from breach, but can also be an issue of the breach is ongoing (such
as opening hours)
Environmental Law
- Will be shown in a desktop search
- The appropriate person bears liability for clean-up of polluting substances within “contaminated land”
o Contaminated land: significant harm being caused/possibility of this, or significant pollution of
controlled waters is being caused/possibility of this
- Remediation notices: local authorities are required to inspect and identify seriously contaminated sites and
maintain registers detailing the position of such sites. Required to serve remediation notices on the
appropriate person, requiring the land to be remedied to an agreed standard.
- Appropriate person will be
o Class A person – those who caused/knowingly permitted the pollutant to be in the land
o Class B person – if no class a person can be found, b will be liable. Those who own or occupy the
land for the time being.
, Caveat Emptor
Provision Summary
Local Land Charges Search Form LLC1. 12 parts to the register
Reveals: GRANTED planning permissions, other planning matters (Enforcement/stop notices),
tree preservation orders, smoke control orders, financial charges, and if Conservation Area
after 31.08.1974
Enquiries of the Local Form CON29
Authority Some overlap with LLC1, also shows consents applied for and refused, private or public roads,
public rights of way
Roads = q2.1 (importance as frontagers may be asked to pay re. standard)
Public right of way = q2.2 – 2.5
Highways search Letter to relevant LA – shows if the land abuts a public highway
Drainage and Water search Checks whether foul and surface water from the property drain to a public sewer and whether
the property is connected to a mains water supply
Standard form for residential properties – CON 29DW(2013)
Desktop Environmental Results will confirm if property has been used for a contaminative use, if it is likely to flood or
Search subside and will confirm land uses.
If possibility of contamination
Phase I survey – include desktop study and site visit
Phase II survey – testing soil and water samples
Pre-contract enquiries of the CPSE.1 – standard pre-contract enquiries. Not authoritative if can be double checked in a
Seller’s Solicitors - CPSEs search
William Sindall plc – mindful of stating not so far as the seller is aware, as this indicates some
investigation
Gordon v Selico Ltd – seller cannot deliberately mislead buyer
Structural Survey and Buyer, not solicitor instructs surveyor. Just need to check it’s done. 3 levels of survey
Physical Inspection Valuation report – valuer on behalf of lender, not normally consider structure or condition of
property
Homebuyer’s survey – more detailed, for residential property transactions – indication of costs,
condition, repairs
Full structural survey – essential in old buildings, detailed examination
Also someone should inspect the property for signs of third party rights (i.e. occupation)
Chancel Repair Search Properties in Parish with medieval church – tax has followed property ownership.
First search: reveal likelihood, second reveals more information and risk
Before 13 Oct 2013, was an overriding interest. On or after (properties transferred for valuable
consideration) are not subject if no notice on Charges Register
SIM Search of index Map
Reveal if any third-party titles are registered against the land, and ascertain owner of
neighbouring land if search includes this. Will reveal if land is registered and if so, registered
title number
Energy Performance Seller is responsible for providing EPC to confirm energy rating of the building
Certificate
Optional enquiries of the Form CON29O
Local Authority Location may require this – for example rights in common (historic rights) over land grazing etc
Also possible to make bespoke requests.
Ladenbau, G&K Ltd – negligence suit if they fail to make this search when the location of the
property indicated it should have been done
Company Search Confirm registered number, name and solvency
Will also give details of fixed charges over company assets
Coal mining and brine search CON 29M
If property is in an area that is affected by coal mining or within brine subsidence claim
1. Put postcode into Coal Authority’s site search service
2. If yes – CON 29 with plan of property and fee
Waterways Search With the Canal and River Trust
Where property is being investigated and it adjoins a waterway or has waterway passing
through it – can be man-made or natural
Shows: who has liability for maintenance, whether rights of way, drainage or fishing rights,
water abstraction licences
May not be covered in this, if not then under common law it falls with the owner
Mining searches in Cornwall, telecoms search if poles on boundary, check if other utility.
Searches
- Investigation of title
Property register - describes the property and rights benefiting
- Extracted or not extracted rights (if not extracted, you need a copy of the document)
o Right of way – adequacy, maintenance, adoption, registration
o Right to lay pipes for water and sewerage
o Rights of light – express grant by deed or acquired by prescription (enjoyed without interruption for a
period of at least 20 years from the date on which the action asserting the right begun and was
enjoyed without any written consent
This can be expressly excluded
- Remedy for obstruction of an easement is an action for nuisance.
o Claimant will have to prove: title to the easement, the scope of the easement, and there has been
substantial interference of the right
o In the case of an obstruction on the right of way, it’s only actionable if considered substantial – can the
right be substantially and practically exercised as conveniently as before?
Proprietorship register – gives the class of title, owner’s name and address, entries affecting the owner’s right of
disposal, any indemnity covenant given by the proprietor and the price when last bought
- Title absolute (F or L), qualified title (F or L), possessory title (F or L), good leasehold (L)
- See also = execution clauses
- Proprietorship register will have a restriction and that will indicate if tenants in common – check wording of the
restriction (can appoint a second trustee)
- See copy of grant of representation when dealing with a personal representative
Charges register – charges burdening the property (third party rights, covenants, mortgages)
- Interests binding the buyer will be registered on the charges register or overriding registered dispositions.
Most common charges discussed below
o Mortgages – always protected by two entries (may also be on the proprietorship register too)
o Restrictive covenants – either fully set out in the register or by reference to a document filed at the
land registry. PWB can obtain an injunction and also receive damages. NOTE: S.19(1) FSMA
Check past breaches > was consent obtained? If yes, need proof, if not, explore restrictive
covenant insurance, approach PWB for retrospective consent, or apply to Upper Tribunal
(Lands Chamber) under s.84 LPA for waiver/discharge/modification to the restrictive covenant
Check whether the buyer’s proposed plans will constitute a breach in the future > if they will,
look into restrictive covenant insurance (likely to be more expensive in these circumstances),
if not then approach PWB/apply to Upper Tribunal
o Positive covenants > do not run with the land. The indemnity will be mentioned on the. charges
register – SCPC – it must also be put in the contract
Past and future breaches > past breaches are remediable by the seller taking action to
perform prior to purchase. For future breach, can get insurance or PWB’s consent.
Unregistered interests overriding registered dispositions
- Burdens – s.3 LRA lists unregistered interests that will override on a sale of registered land
o Easements – if created by deed needs to be registered. Exception is if it was created pre-13 Oct 2003
o Leases – of not more than 7 years will be overriding. Where granted pre-13 Oct 2003, leases of not
more than 21 years will be overriding
o Interests of persons in actual occupation > should come up through pre-contract enquiries or through
client’s inspection. Need to sign a waiver of any possible interest and agree to vacate. Need to ensure
they obtain independent legal advice
- CCS 6.4 duty to make sure client is aware of all information and 8.6 to give information in a way they can
understand and make informed decisions
Provision Summary
(TOLATA)
14 Any trustee of land/any person with interest in the property can apply to the court for a proposed court
of action (e.g. sale)
15 Guidance for the court on things to consider when determining an application under s.14: the intention
of the person(s) who created the trust, the purpose(s) for which the property subject to the trust is held,
the welfare of any minor and the interests of any secured creditor of any beneficiary
,Local authority consents, pre-contract searches and standard enquiries
Planning permission
(See also: flowchart re. whether this is required)
- Past works/changes of use – if there has been a breach (which is still within the enforcement period), must
ensure this is dealt with before the purchase by putting a special condition in the contract. Also look with
regards to buyer’s proposed uses
- Breach of planning legislation
o Enforcement notices: land be restored/secure compliance with any conditions or limitations
o Stop notices
o Planning contravention notices – flush out information about potential planning breaches
- Limitation periods (s.171B TCPA)
o Building works with no planning permission – 4 years following substantial completion
o Material changes of use – 10 years from date o change of use, unless the change of use is to a single
dwelling house, whereby the time limit is 4 years
o Breach of condition attached to planning permission – 10 years from date of breach (check whether
the condition was on-going)
o No time limit for concealment of development
- Listed buildings > consent required for internal or external building works > criminal sanctions and no time
limits
- Conservation areas > stricter planning controls may include:
o Art 4 direction – restriction on what is permitted development, so planning permission is still required
o Onerous planning conditions – type/quality of paint etc. No time limit.
- Building regulations – buildings have to be constructed in a way that complies with certain rules > separate
and additional to planning permission. Commenced within 3 years of building regulations approval. After
satisfactory completion, get a Building Regulation Completion Certificate.
o Local authority can make proceedings within 12 months of any infringement, however s.36(6) Building
Act allows an application at any time for an injunction.
o Cottingham v Attey Bower and Jones – solicitor needs to take all practical and reasonable steps to get
copies of approvals or it can amount to negligence
o May obtain a regularisation certificate if no approvals, or get insurance
Provision Summary
57(1) TCPA planning permission is required for “development”.
55(1) TCPA Defines development – (a) building works or (b) material change in use
55(1A) – building works are demolition, building, structural alterations, any other operations by builder
55(2)(a) – not building works: affect only interior, not materially affect external appearance, not
provide additional space underground
GPDO Permitted developments (do not need consent) - Limited application for commercial properties to
building works - can construct fences/gates, buy access to highway, paint the building, put in charging
outlets for electric vehicles, and install CCTV cameras
But note: LPA Article 4 direction
S171B TCPA Building works carried out without planning permission, enforcement action within 4 years following
substantial completion
Material changes of use; 10 years from change of use unless to a single dwelling house, then 4 years
Breach of condition – 10 years from breach, but can also be an issue of the breach is ongoing (such
as opening hours)
Environmental Law
- Will be shown in a desktop search
- The appropriate person bears liability for clean-up of polluting substances within “contaminated land”
o Contaminated land: significant harm being caused/possibility of this, or significant pollution of
controlled waters is being caused/possibility of this
- Remediation notices: local authorities are required to inspect and identify seriously contaminated sites and
maintain registers detailing the position of such sites. Required to serve remediation notices on the
appropriate person, requiring the land to be remedied to an agreed standard.
- Appropriate person will be
o Class A person – those who caused/knowingly permitted the pollutant to be in the land
o Class B person – if no class a person can be found, b will be liable. Those who own or occupy the
land for the time being.
, Caveat Emptor
Provision Summary
Local Land Charges Search Form LLC1. 12 parts to the register
Reveals: GRANTED planning permissions, other planning matters (Enforcement/stop notices),
tree preservation orders, smoke control orders, financial charges, and if Conservation Area
after 31.08.1974
Enquiries of the Local Form CON29
Authority Some overlap with LLC1, also shows consents applied for and refused, private or public roads,
public rights of way
Roads = q2.1 (importance as frontagers may be asked to pay re. standard)
Public right of way = q2.2 – 2.5
Highways search Letter to relevant LA – shows if the land abuts a public highway
Drainage and Water search Checks whether foul and surface water from the property drain to a public sewer and whether
the property is connected to a mains water supply
Standard form for residential properties – CON 29DW(2013)
Desktop Environmental Results will confirm if property has been used for a contaminative use, if it is likely to flood or
Search subside and will confirm land uses.
If possibility of contamination
Phase I survey – include desktop study and site visit
Phase II survey – testing soil and water samples
Pre-contract enquiries of the CPSE.1 – standard pre-contract enquiries. Not authoritative if can be double checked in a
Seller’s Solicitors - CPSEs search
William Sindall plc – mindful of stating not so far as the seller is aware, as this indicates some
investigation
Gordon v Selico Ltd – seller cannot deliberately mislead buyer
Structural Survey and Buyer, not solicitor instructs surveyor. Just need to check it’s done. 3 levels of survey
Physical Inspection Valuation report – valuer on behalf of lender, not normally consider structure or condition of
property
Homebuyer’s survey – more detailed, for residential property transactions – indication of costs,
condition, repairs
Full structural survey – essential in old buildings, detailed examination
Also someone should inspect the property for signs of third party rights (i.e. occupation)
Chancel Repair Search Properties in Parish with medieval church – tax has followed property ownership.
First search: reveal likelihood, second reveals more information and risk
Before 13 Oct 2013, was an overriding interest. On or after (properties transferred for valuable
consideration) are not subject if no notice on Charges Register
SIM Search of index Map
Reveal if any third-party titles are registered against the land, and ascertain owner of
neighbouring land if search includes this. Will reveal if land is registered and if so, registered
title number
Energy Performance Seller is responsible for providing EPC to confirm energy rating of the building
Certificate
Optional enquiries of the Form CON29O
Local Authority Location may require this – for example rights in common (historic rights) over land grazing etc
Also possible to make bespoke requests.
Ladenbau, G&K Ltd – negligence suit if they fail to make this search when the location of the
property indicated it should have been done
Company Search Confirm registered number, name and solvency
Will also give details of fixed charges over company assets
Coal mining and brine search CON 29M
If property is in an area that is affected by coal mining or within brine subsidence claim
1. Put postcode into Coal Authority’s site search service
2. If yes – CON 29 with plan of property and fee
Waterways Search With the Canal and River Trust
Where property is being investigated and it adjoins a waterway or has waterway passing
through it – can be man-made or natural
Shows: who has liability for maintenance, whether rights of way, drainage or fishing rights,
water abstraction licences
May not be covered in this, if not then under common law it falls with the owner
Mining searches in Cornwall, telecoms search if poles on boundary, check if other utility.
Searches
