Summary Searches and enquiries FINAL EXAM NOTES

PRE-CONTRACT SEARCHES AND ENQUIRIES
 Buyer is making searches because of doctrine of caveat emptor (buyer beware;
WHY seller has no duty)
SEARCH  Seller’s duty to disclose is limited, so further searches are necessary to protect
the buyer (i.e. doesn’t have to disclose physical defects etc)
 If the solicitor does not make them, they could be liable for professional negligence
 At this stage, the buyer can freely withdraw if he discovers something he does not
like
 To satisfy the buyer’s lender, all should be made not more than 6 months
WHEN before completion
SEARCH  In practice, usually about 2-3 months before completion
 Buyer may choose to rely on the seller’s searches or repeat them
KEY AREAS Planning
 Is there a planning permission for the construction of the building or was planning
permission not needed?
 Is the building being used for its authorised planning purpose?
 Are there any planning conditions which would prevent the client’s proposed
alterations or future use?
 Are there any existing breaches of planning law for which action could be taken
against the buyer after completion?
 Is the building listed or in a conservation area?
Access and services
 Are all roads giving access to the building public highways maintainable at public
expense?
 If not, is there a s38 agreement and bond in place?
 If not, are there roads crucial to Kenulf House which pass through land in third party
ownership and if so, does the seller have any legal rights to use them?
 How are these private roads maintained?
 Are there any proposals for new roads or works to existing roads?
 Does foul waste and surface water drain away from the building to a public sewer?
 Is the building connected to the mains water supply?
Physical state and condition
 Is any part of Kenulf House in poor repair?
 Liable to flooding?
 Contain asbestos or other deleterious substances?
 Are there building regulation consents for any works done?
Environmental contamination
 Could Kenulf House be contaminated by past uses?
 Could Kenulf House be contaminated by uses taking place on neighbouring
properties?
 What does the seller know about any possible contamination?
 If the property is contaminated, would the buyer have to clean up (or “remediate”)
contamination in future?
 Has the Local Authority already served any remediation notices or is it planning to
do so?
Outstanding title issues
 Have there been any breaches of the 1995 covenants?
 What needs to be done to comply with the restriction in entry 3 of the Proprietorship
Register?

,  If required, ensure that it is in place before exchange of contracts
INSURANCE  Alternatively, include a term in the contract obliging them to obtain it
Registered/Unregistered (Always)
 Personal inspection
 Enquiries of the seller
 LLC1 (local land charges)
 Chancel Repair Search (regardless of date)
 Local Authority Enquiries:
 CON29R
 CON290
 Water and drainage enquiries under CON29DW
WHAT  Environmental search (matter of best practice)
SEARCHES LLC1 + CON29R + CON290 = local search

Unregistered
 Index Map Search
 K15 Land Charges Department Search

Fact Dependant
 Mining Search (CON29M)
 Company search (corporate seller, for both registered and unregistered)
 K16 Land Charges Department search for insolvency/bankruptcy (registered
only)
 Flooding (often a good idea anyway)
 Highways search (if gaps in CON29R “ransom strip”)
 Canals/Rivers search
 Railways
 Common Registration Search (verge strip/next to village/common land)
 Structural survey (older property requiri9ng refurbishment/alterations)

State why these searches are being carried out
 Must pursue unsatisfactory results (including not finding what you expect to find) or
face liability; Computastaff, and check with client’s instructions
USE  Must pass on the results to the client
RESULTS  A buyer has imputed knowledge of everything that the solicitor knows

Common scenarios

PROPERTY  Copy of NHBC document to give to insurance regarding
BUILT WITHIN structural defects
LAST TEN  Copies of planning permission and whether they have been
YEARS
complied with
 Check that roads and drains are adopted
 Check that adequate easements exist
PROPERTY  Check the title to ensure that easements exist (express,
ACCESS implied, presumed)
 Arrangements for maintenance and repair
 Find out by pre-contract enquiries
 Whether occupiers claim equitable interest or tenancy

, OCCUPIERS (FLA/licence)
 Whether FLA rights registered or Class F land charge on Land
Charges Register (unregistered); must be married, legal owner
alive and property matrimonial home
 Whether bare licence (automatically revoked) or contractual
(revoked once contractual period expires)
 Whether equitable interest registered or Class C(iv) land
charge on Land Charges Register (unregistered); must be
signed, in writing, and contain all agreed terms
 Ensure any occupiers will surrender on completion (and
remove registration is FLA right/equitable interest)
 These are unadopted private roads
 Likely to be adopted by the Highways Authority (but may not be)
 Ensure a contract clause that the developer will make and maintain the roads up
NEW
to the Local Authority standards until such point as they may be adopted, at no
ESTATE
cost to the buyer
ROADS &
 If developer goes insolvent, buyer could become liable for costs of adoption, so
DRAINS
ensure there is a s38 agreement supported by a sufficient financial bond between
Highways Authority and the developer
 For drains, it is a s104 agreement

, COMPULSORY SEARCHES
SEARCH PURPOSE PROCEDURE INFORMATION OBTAINED NEXT STEPS LIABILITY
Allows evidence Attend property and  Layout of property / boundaries  Full structural survey may
PERSONAL of anything not report on physical  Evidence of easements (rights of be required or any of the
INSPECTION disclosed by the inspection way/drains) steps below
seller
 Existence of occupiers
 Whether fixtures/fittings exist N/A
 Whether new rights need to be
granted/reserved
 Whether other agreements required
(right of light)
To elicit Send two copies of  Who is in occupation?  May need to go back to If the replies are
information from form to seller’s  Alterations/work done and any planning LPA if seller cannot wrong, the buyer
PRE-CONTRACT seller they are not solicitor as soon as permission or building regulation provide certain documents may have a claim
ENQUIRIES required by law to possible after  If they say there is a in
consent obtained
(CPSE enquiries of disclose, mainly instructions received prescriptive easement, get misrepresentation
the seller) about defects and from buyer.  Any change in use a ST4 form – statutory . If the error flows
AND ADDITIONAL neighbour Delete any irrelevant  Neighbour disputes declaration from seller from the
ENQUIRIES disputes. Seller questions and can  Any easements  If no money being paid to solicitor’s
can refuse, but add unique  Any non-owning occupiers maintain something which negligence, he
this would put questions where  Boundaries and extent the seller has a duty to will be liable to
buyer off. there are genuine  Rights benefiting the property maintain (i.e. a positive client.
areas of enquiry not repairing covenant), get a
 Adverse rights affecting the property
covered by the surveyor to take a look at
standard questions.  Title policies condition – also ask seller
 Access to neighbouring land further questions about
This is the most  Access to and from property compliance and
wide-ranging form.  Contents enforcement – consider
However, note that  Utilities and services insurance
the seller’s solicitor  Planning and building regs  Conduct structural surveys
will be cautious  If no building control was
 Environmental
about what it will say given, see if seller can get
and will normally  Occupiers/ employees retrospective building