Pre-contract searches and enquiries

What is a report on title?

A report on title is the report in which a solicitor reports to its client on the its investigation of title, search results and replies to enquiries.

What is the content of the report on title?

Material facts in respect of the property, issues and their implications, solutions available

When does the solicitor send the buyer the report on title?

Before the exchange of contracts

Who is the report on title addressed to?

The report on title will be addressed to the client, and will generally be confidential to that client. It should not be relied upon by anyone else.

From where would you order any official searches from?

A channel provider, such as Searchflow. The searches themselves are provided by channel providers (who offer an 'ordering service'), such as SearchFlow, Thames Water Property Searches and GlobalX. Requesting searches via such channel providers is a typical trainee / paralegal job.

What are the standard searches?

"Local search" - enquiries of the local authority (CON29) and search of the local land charges (LLC1); Drainage and water enquiries; Desktop environmental search, and; Chancel repair liability.

What is the "local search".

The "local search" covers all matters relating to the property within the knowledge/records of the local authority. It comprises of three searches: Optional enquiries (Form CON290), Standard enquiries of the local authority (Form CON29), and Local Land Charges Search (LLC1)

What are the standard replies to enquiries on commercial property known as?

CPSE1 (Commercial Property Standard Enquiries)

What are the standard forms for replies to enquiries on residential property?

Property information form (Form TA6) - contains information about boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters, etc ; Fittings and contents form (Form TA10) - items that are included or not in the sale, such as curtains, light fittings, carpets, etc.

What's the difference between searches and enquiries?

Searches are made by third parties and enquiries are made by the seller themselves.

What is the local land charges search?

The local land charges search is a request for a search of the register of local land charges and it reveals a lot of planning information about the property. The LLC1 searches the register of local land charges. The LLC1 is always carried out and the result reveals among other matters planning permissions granted (not refused) and restrictions against permitted development (an Article 4 Direction). In every transaction the LLC1 is submitted to the local authority (usually via an online search platform such as Searchflow) together with the CON29.

What is the CON29?

The CON 29 is a list of enquires of the local authority both about the property and the surrounding area.

What's the difference between the LLC1 and the CON29 in relation to planning permissions?

The LLC1 will only give you details of what planning permissions have been granted. The CON 29 will tell you about what planning permissions have been granted, and in addition it will actually tell you what planning refusals there have been and also what applications are currently going through so it gives a wider picture of the planning applications for the property.

Your client is buying a house that has just had a loft conversion. Your client has asked you whether you can tell from the pre-contract papers whether the seller obtained any building regulation approval relating to the loft conversion. Where would you expect to find the answer?

The local authority search result (CON29).

Where would you expect to find out whether a public footpath crosses a property?

The Local Authority Search Result.

What is the effect of a property being in a conservation area?

Any planning permission granted for development is likely to be subject to more onerous conditions than if the property was outside of the conservation area and the Local Planning Authority (LPA) may have made an Article 4 Direction.

A company is the owner of a warehouse. The property is currently vacant. The company plans to carry out substantial internal works involving removing internal structural walls so that it can be let out as a restaurant.

Planning permission for the material change of use and building regulation consent for the internal works.

The building works are internal works and therefore do not constitute development (s.55(2) TCPA 1990). Planning permission for the internal works is not required. The change of use of the property from a warehouse (Class B8) to a restaurant (Class E(b)) is a 'material change of use' which constitutes 'development' and hence planning permission is required for the change of use. This change does not fall within the GPDO 2015, nor would it fall within the transitional provisions (being a change in the pre-1 September TCP(UC)O 1987 from B8 to A3). As internal works are taking place, building regulation consent is required.

What is a 'development' for the purposes of planning permission?

'Development' means carrying out of certain building works on land or a material change of use of the land.

When is planning permission needed?

Planning permission is needed whenever there is development on land, unless it falls within certain exceptions, such as:

• building works that only affect the interior of the building; or

• building works that do not materially affect the external appearance of the building; or

• changes of use that are within the same use class (s3(1), The Town and Country Planning (Use Classes) Order 1987

What are the different use classes defined in the Town and Country Planning (Use Classes) Order 1987?

Class C (residential type uses), Class E (Commercial, business and service), and Class F (Local community and learning).

What are sui generis uses?

Uses that do not belong to a use class. Any use that doesn't fit within a use class will be treated as sui generis.

What is the effect of a sui generis use for the purposes of planning permission?

Any change to or from that use will require planning permission.

What is the GPDO?

The Town and Country Planning (General Permitted Development) Order 2015 (known as the 'GPDO') allows certain development without planning permission ('permitted development'. Development is permitted under certain conditions.

What approach should be taken when using the GPDO to carry out development?

The GPDO can be excluded or amended in a locality by an Article 4 Direction, in which case the proposed development will need planning permission.

If proposing to rely on the GPDO, therefore, an enquiry should be made of the local authority whether the GPDO has been excluded.

What is needed to demolish, alter or extend a listed building?

Listed building consent. It is a separate requirement from planning permission, and may be necessary even where planning permission isn't, such as internal alterations.

What are the effects of a conservation area?

The GPDO will be restricted, so changes to external appearance may require planning permission.

In England, planning permission is needed to demolish an unlisted building within a conservation area.

In Wales, conservation area consent is needed to demolish an unlisted building within a conservation area.

Consent is needed to cut back or cut down trees.

To what works does the Building Regulations 2010 apply?

Applies to "building work" which includes:

• erection or extension of a building

• installation or extension of a service or fitting that is controlled under the Building Regulations (for example, windows, boilers)

• work required where there is a material change of use of the whole building.

What is needed before carrying out work covered by the Building Regulations?

Before carrying out work covered by the regulations, building regulations consent is needed. he work may be inspected by a building control inspector, who will issue a building regulations certificate of compliance if the work is in accordance with building regulations. Self-certification schemes exist for certain types of work.

How can a seller regularise their own breach of planning permission or building regs?

Retrospective planning permission for development, or a regularisation certificate for works that did not have building regulations approval but otherwise comply.

A house was built three years ago and the owner is now selling it to your client. What is the legislation regarding the time limit for planning control?

If planning permission had been needed, the time limit for the local authority to bring enforcement action for the seller not obtaining planning permission is 4 years from the date of substantial completion.

What is the local authority's enforcement options for a breach of planning control?

Enforcement notice, Stop notice, Breach of condition notice, and injunction.

What is an enforcement notice?

The local authority gives 28 days notice that the land must be restored to the condition it was in before the development or to comply with the conditions of the planning permission. After 28 days, land owner may be fined, and the local authority can enter the land to carry out the work, recovering its expenses from the land owner.

What are the enforcement time limits regarding the enforcement of planning permission?

4 years for building works or change of use of a dwelling use. 10 years for other changes of use or for breaches of a planning condition.

What are the enforcement options for a breach of building regulations?

Prosecution, enforcement notice, injunction.

What are the enforcement time limits regarding the enforcement of building regulations?

- Prosecution: local authority has 6 months after discovering the breach to prosecute, and the prosecution may take place up to 2 yrs after completion of the works.

- Enforcement notice: one year after the completion of the building work

- Injunction: no time limit where the work is unsafe

Where can the buyer's solicitor check for compliance with planning law and building regulations.

Local search, seller's replies to enquiries, and buyer's survey.

A company is selling a piece of land. In preparing replies to enquiries, the company director states that the company "is not aware of any disputes with neighbouring properties". The company director can find no disputes in her file for the property. However, the site manager of the land did have a significant verbal dispute (not written down) with the neighbouring land, which he did not bring to the attention of the director. After completion, the buyer finds out about the dispute. Is the seller protected against a claim by the wording of the reply?

No, the director should have spoken to the site manager. The seller should make reasonable efforts to check records AND speak to appropriate people in the organisation.

Can the buyer's solicitor raise additional enquiries in commercial transactions?

In commercial transactions, the buyer's solicitor can raise whatever enquiries they like, but the seller's solicitor may decline to respond to enquiries that they feel are irrelevant, would incur unnecessary time and expense to answer, etc.

Can the buyer' solicitor raise additional enquiries in residential transactions?

In residential transactions that follow the conveyancing protocol, the buyer's solicitor may only raise additional enquiries to clarify issues arising out of the documents provided, or which are relevant to the title, existing or planned use, nature or location of the property.

What is the issue of the wording 'not so far as the seller is aware'?

A seller must take care if answering a question 'not so far as the seller is aware' as this implies that the seller has made reasonable investigations and has no actual knowledge of any defect. The seller should check its records and make reasonable enquiries (for example, a company selling should check with its employees). If the seller is unable to make such investigations, the seller should state this in their reply.

What are the remedies for misrepresentation?

Recission or damages.

When using the Law Society's Conveyancing Protocol, solicitors agree to adopt...

Standard Conditions of Sale (incorporated into the contract), Property Forms, Formulae for exchange, Code for Completion by Post.

To which transactions is the Low Society's Conveyancing Protocol applicable?

Conveyancing transactions of residential property. It is not appropriate for new builds.

What is the purpose of the Law Society Conveyancing Protocol?

Aims to make the conveyancing process more efficient and transparent to the benefit of all parties involved.

Which solicitors are bound by the Law Society Conveyancing Protocol?

Observance of the Protocol is voluntary except for conveyancers who have the Conveyancing Quality Scheme accreditation.

When may a solicitor be in breach of the Law Society Conveyancing Protocol?

A solicitor may breach the Protocol if they:

• use non-Protocol 'standard' enquiries indiscriminately

• raise enquiries that seek the seller's opinion rather than fact

What're the consequences of breaching the Protocol?

If a solicitor breaches the Protocol, then the Law Society may require an explanation, potentially leading to their being monitored and even removed from membership of the Conveyancing Quality Scheme.

What is included in the LLC1?

LLC1 shows matters that have been entered on the local land charges register affecting the property. These include:

· debts against the property for work that the local authority has carried out - for example, to repair or demolish dangerous buildings or clean properties that are a risk to public health;

· planning permissions that have been granted (but not planning applications that have been refused);

· planning enforcement notices;

· Article 4 directions (which you will remember disapply or modify the General Permitted Development Order);

· conservation areas and listed building designations; and

· tree preservation orders and other miscellaneous charges that you can research if and when they come up in practice.

What does the drainage and water search check?

Checks whether the property is connected to a public sewer and water supply.

What is the desktop environmental search?

The desktop environmental search is so-called because it is computer generated from existing records, and nobody actually gets up to visit the site.

A desktop environmental search will advise if the property is likely or not to be contaminated based on historic maps and records. It would therefore not pick up contamination which would not be recorded, such as illegal dumping of waste.

The desktop environmental search result also identifies the risk of flooding. Note that the drainage and water search does not contain information about flooding.

What are the two title searches?

The index map search (needed if unregistered title, a number of titles, or whether there is an exception of mineral rights), and the land charges search (against the seller and previous owners in the chain of title)

Which optional search should be carried out if there is open land?

enquiry 22; commons and village greens (land over which the public has rights)

When should a highway search be carried out?

the info in the CON29 which identify the adopted roads is usually sufficient for residential property, but a highway search is useful for development and other commercial property.

Which areas of the country are affected by specific types of mining?

a brine subsidence search is needed in certain areas of Cheshire;

a tin mining search may be needed in Cornwall or Devon.

What are the two categories of further environmental investigation?

a Phase 1 survey involves a site inspection, and if this indicates possible contamination, then:

a Phase 2 survey is carried out, which involves taking soil and water samples to test for actual contamination.

What permission is needed for internal works?

Planning permission is not required, but building regulations approval is necessary for internal and external building works.

What is the 2 step process of building regulations approval?

Full plans and specifications must be submitted to the building control department of the local authority for approval.

After completing the works, building control inspect the work and issue a certificate of compliance.

What approval is required for a change of use?

Planning permission but not building regulations approval (unless the change requires works).

What is an article 4 direction and where is it found?

A Direction made by local planning authorities to disapply the GDPO (therefore the permitted development under consideration will need planning permission). It is found in the LLC1.

Which searches do you do to find if there has been planning permissions and building regulations approval?

LLC1 to find planning permissions obtained. CON29 to find building regulations approvals.

What are the time limits on the local authority's statutory powers to take enforcement action on building regulations?

· 6 months after discovering a breach to prosecute a person responsible for the works for up to two years from the date of completion of the works

· 12 months to serve an enforcement notice.

There is no time limit on their seeking an injunction through the courts.

You act for a client who intends to buy a registered freehold in the countryside. The client has asked you to look in the pre-contract papers to see whether a public footpath crosses the property.

Where would you normally expect to find the answer?

The Local Authority Search Result

You are acting for the purchaser of a registered commercial freehold property and in order to complete the report on title for the client you need to locate information from the searches about the following issues:

• Whether the property is a listed building

• Whether a contaminated land notice has been served.

• Building regulations previously granted.

• Flooding risk

• Whether the boundary fence needs repair.

Which of the following options best describes the searches and/or enquiries you would use to obtain the information needed?

LLC1, CON29, environmental desktop search and Commercial Property Standard Enquiries. Whether the property is listed will appear in the LLC1. Contaminated land notices and building regulations approval are only detailed in the CON29. Flooding risk appears in the environmental desktop search and the seller will confirm in the CPSEs whether the fence needs repairing.

You have recently been instructed to act for a buyer on the purchase of an industrial unit. The seller built a large extension to the rear of the unit in September 2008. The seller's solicitor has sent you the replies to CPSEs and you note that the seller did not obtain building regulations approval for the extension.

Is this a problem for the buyer?

Yes as there is no time limit for enforcement re: the lack of building regulations approval by the local authority. The local authority can apply to court to enforce the building regulations by injunction at any time.

A planning officer for a local authority has become aware of a potential planning issue. Five years ago, a commercial property within the local area has been redeveloped into a single residential property without obtaining any planning permissions.

Which of the following options should the planning officer take for this breach of planning control?

There is nothing he can do as the planning contravention is outside the enforcement period from the date of the change of use. his change of use of a building to a single residential property has a four year enforcement period which has now expired.

What are the standard searches (the searches that should always be done)?

The local search (CON29 and LLC1), drainage and water search, desktop environmental search, and chancel repair.

Do internal works require planning permission?

No, unless the property is listed.

How long does the local authority have to take enforcement action against building regulations infringement?

The local authority 6 months from the discovery of a breach to impose a fine to the person contravening the provision, provided proceedings are brought within 2 years of the completion of the offending work.

What can the local authority ask the landowner contravening the building regulations to do and within what timeframe?

The local authority can ask the land owner to remove the work or carry out remedial works, and if this is not done within 28 days the local authority can do the work itself and demand expenses.

How can you protect against building regulation infringements?

- apply for a regulation certificate

- purchase a building regulations indemnity policy (covers financial loss but not personal injury)

- look at reducing the purchase price to cover potential costs of compliance