The English Conveyancing system is based on the principle “Caveat Emptor” (let the buyer beware). It is buyer’s (and therefore, his solicitor’s) responsibility is to find out about the subject property before he proceeds to exchange of contracts. The common law provides that the seller has only a limited duty of disclosure. Accordingly, it is the buyer’s Solicitors’ responsibility to raise the appropriate pre-contract/preliminary enquiries and to carry out the appropriate pre-contract searches. Remember, failure to do your job properly can result in professional negligence proceedings down the track.
A striking aspect of English conveyancing law practice is the prominence of pre-contract enquiries. There is significantly less scope under the standard sale contract for enquiries post-contact than is the case in Ireland. Once the contract is signed in standard Law Society terms and conditions, all the key title and quasi-title matters such as planning, building control and environmental issues, should have been investigated.
There are two main types of pre-contract enquiries. One type involves enquiries and questions to the seller. The other involves searches in various public registers, very many of which, do not have a direct equivalent in Irish practice.
Enquiries to Seller
The Buyer’s Solicitor may send the seller’s Solicitor a set of pre-contract enquiries in duplicate before exchange of contracts. The purpose of the Enquiries is to seek out answers from the seller about matters which affect the property and might be relevant to whether the Buyer proceeds. Enquiries usually relate to matters to include boundaries and fences, disputes, notices, service, guarantees, exclusive facilities, shared facilities, occupiers, use, fixtures and fittings, flooding and easements.
The types of enquiries made depend on the nature of the property and title. For example, where the property is held under a long lease, enquiries on leasehold issues are appropriate. It will be necessary to enquire about the ground rent, the maintenance and service charge payable, insurance arrangements and breaches of any covenants of the Lease.
In residential cases, pre-contact enquiries are usually raised through the standard TransAction questionnaires. The Protocol 2011 requires the Vendor to furnish the appropriate Protocol Forms namely TA6 Property Information Form, TA7 Leasehold Information Form, TA10 Fittings and Contents Form, pre-completed. These are completed by the seller, preferably with assistance from his solicitor, and are sent to the buyer’s solicitor with the draft contract and title. Sample forms are provided.
Some solicitors raise their own additional enquiries in residential cases and / or solicitors still continue to rely on a pro forma set of pre-contract enquiries to gather further information.
There are enquiries appropriate to managed leasehold estates such as apartments. Most management companies have pre-prepared replies to standard pre-contract enquiries on apartment block issues, which they sell to the seller. The pack usually incorporates a range of information on matters of concern, such as accounts, insurance and management company matters.
In the case of commercial property, there no universally used standard pre-contract enquiries. However, the CPSE standard enquiries and supplements are commonly used. They or other enquiries are raised by the buyer’s solicitor and are tailored to the circumstances. Pre-contract enquiries can be very detailed and long, covering the title and other legal compliance issues relevant to the particular type of property.
A seller who answers pre-contract enquiries negligently may be obliged to compensate the buyer. If the contract has not closed, the buyer may rescind. The Misrepresentation Act 1967 creates a right of action for damages for negligent misstatement, made prior to a contract for the sale of land. There is an obligation to disclose latent defects in title. Wilful concealment may be fraudulent and have implications in contract and tort.
Searches and the National Land Information Service (NLIS)
A feature of English conveyancing, which has no direct equivalent in Ireland is the prominence of pre-contract searches made in public registers. The closest equivalent is the planning register search. English local authority searches are significantly wider in scope.
The National Land Information Service (NLIS) is a body set up to provide information on land and property. It brings together most agencies involved in a conveyance such as Local Authorities, Land Registry, Coal Authority, Water Companies, Companies House and Environmental Agency. Its aim is to provide speedy and simple access to a wide range of land and property information held by the various public and private bodies. Searches can be made via a single total website to most of the above local authority searches land registry searches and bankruptcy searches.
The NLIS provider enables speedy identification of a property through its address, postal code and maps. On entering a property address, pre-existing addresses appear and can be selected. The next step requires identification of relevant searches. Some searches are returned within minutes, while others must be processed (e.g. Local Authority Searches and water and drainage searches).
It is intended that NLIS will use the National Land and Property Gazetteer (NLPG) and that all properties will have a Unique Property Reference Number (UPRN) which will be used to cross-reference data for Conveyancing Searches. The new CON29 makes provision for practitioners to insert the NLPG UPRN to assist in identifying the subject property.
Local Authority Search
The Local Authority Search is the key search dealing with local authority powers and issues, including the impact of planning legislation and building regulations on the property. The pre-contract enquiries will reveal a range of matters of relevance to a buyer.
The Local Land Charges Registers, (maintained by Councils) was established by the Land Charges Act 1925 (now the Land Charges Act 1975). This register should be distinguished from the central Land Charges Register mentioned below. The Local Land Charges Act requires local authorities to enter statutory notices and other legally significant acts, which affect land and are binding on owners, in a publicly searchable register. This includes certain development proposals, conservation areas, certain planning permission conditions, listed building consents, and a range of notices under statutory power which require work, restrict use or otherwise affect land and buildings.
The official search of the Local Land charges register is requisitioned in form LLC 1. In addition to the above search, local authorities answer a standard and optional list of enquiries in form Con29 (R) (required enquiries) or Con 29 (O) (optional enquiries). A copy of the standard enquiries and optional enquiries is provided. Each Council has a unit dealing with enquiries. The searches are a significant expense, generally, £130 -£200 and usually take several weeks to process. They are ordered through online portals but are processed by the relevant unit of the Council.
The latter search deals with a range of matters, which are not directly binding on the land but which may affect it in the future or may affect the surrounding areas. The enquiries act as a warning and a broad due diligence of a range of legal matters which may indirectly affect the property. See the sample form provided.
The Search, on form LLC1, is sent to the Local Authority where the property is situated with the fee. Accompanying the search is a pre-printed set of standard enquiries in form CON 29R Part I and further optional enquiries in Form CON29 O Part II. Results can take several weeks, so it is important that it is requested at the earliest opportunity to avoid delays in the Conveyancing transaction.
The Register consists of 12 parts. It deals with the planning history of the property and will also reveal if the property is within conservation or smoke control zone area etc. Form Con29 Part I has questions concerned with Planning/Building regulations, Roads/Footways and Footpaths and a catchall section of other matters dealing with (13 subsections) for example road schemes, traffic schemes and contaminated land concerns.
It is important for a prospective buyer to know whether the Local Authority has adopted the road and footpath which serves the property (i.e. will maintain it at their expense). If it is an unadopted road, he should be made aware that there will be a liability to contribute to its maintenance and repair and subsequent adoption.
Con 29 Part II contains a further 22 optional enquiries, and the necessity of any of these additional enquiries should be considered in the context of the given purchase. If for example, the property is in the countryside, it would be sensible to select question 5 which covers public paths and byways, over or adjacent to the property.
The second most common pre-contact search (after the local authority search) is the water and drainage search. In the early 1990s, the water and waste functions of local authorities were privatised. A standard set of enquiries CON29 DW is sent to the water company.
The search will furnish information regarding the presence of public water mains, public sewers, etc. This may vouch that the property is connected to the public services. The search results usually contain a map showing the location of water mains, sewers and drains, etc. (with water mains in blue and sewers in red).
The water / drainage search is made by way of Form CON 29DW with the appropriate fee and will confirm water supply, metering and proximity of a public sewer to the subject property. Search result could draw attention to the future cost of repairs to private drains/sewers as well as private supply pipes.
Environmental searches give information on environmental matters and licences in relation to the property and make a “desktop” assessment of whether there is a risk of adverse environmental conditions, including contamination. This does not usually involve a physical examination of the property, but an automatic assessment of data on risks, based on location and previous uses.
An environmental search may indicate that there is a risk of contamination and accordingly, may not issue a “pass”. In this case, the buyer through his solicitor, should make further enquiries and seek evidence that the risk has been abated or does not in fact apply. The buyer may undertake a physical examination. Insurance may be taken out in relation to the risk of contamination.
The search may be made via the Environment Agency or Home Envirocheck. There is comprehensive environmental liability legislation dating back to the mid-1990s. This is particularly important purchases of properties with environmental licence use and purchases of on so-called brownfield sites. The owner or controller can be made liable, to clean up historical contamination. Environmental searches are also useful in terms of identifying previous flooding risks.
Companies House Search
The Companies Register at Companies House should be checked to confirm that the seller Company has the power to sell under its constitution. It will also advise if the Company is being wound up, which would affect the ability to sell. A Companies House search is appropriate where a company is selling or, indeed buying, for pretty much the same reason as in Ireland.
It is necessary to establish that the company exists and that there are no adverse mortgages or charges. Most charges must be registered in the Land Registry in order to be binding.
Searches Relevant in Some Cases
There is a range of less commonly used searches, which may be appropriate in particular areas or in respect of particular types of property or in particulars area in England and Wales. Most of these searches have no direct equivalent in Ireland.
Common Registration Search
The Register of Commons registers rights in common over common lands, town greens and village greens. There is no equivalent in Ireland. Registration in this separate register is required to assert these rights. A search is desirable, where land might be subject to common / public rights.
If the subject property is unbuilt or newly built or if the subject property is located next to a village green or common this search should be made. It will confirm whether the property or any land adjoining it is registered common land under the Commons Registration Act 1965 or the Commons Act 2006. This could give rise to the risk of grazing cattle on the front lawn of the property and also prohibit future development or the fencing off of the property.
Mining Searches are aimed at identifying properties which have a risk of land collapse and other adverse effects, due to historic mining in the area.
Form CON29M for a Coal Mining Search is sent to the Coal Authority with a fee and a plan of the property. It confirms if the property is in an area of past, present or possibly future coal mining. Consider the risk of subsidence, which may damage buildings. The Law Society Coal Mining Directory will show if the property is located in coal mining area or check by using the postcode search facility available at https.//www.groundstability.com.
Limestone mining searches are advisable in certain areas namely Dudley Sandwell Walsall and Wolverhampton. The search is sent to the local authority requesting information on subsidence arising from disused underground works.
Clay mining searches are appropriate in parts of Devon and Cornwall. The search is sent to the English China Clay company. Tin mining sources are also appropriate in parts of Devon and Cornwall and are sent to the Cornish Chamber of Mines. Brine extraction searches are appropriate in Cheshire and Greater Manchester. They are dealt with by the Coal Authority.
Other searches may be appropriate where the property is situated near to a river, canal, railway line or other major utility. For example, a search with the National Rivers Authority or Environment Agency will reveal details of liability for repairs to and maintenance of river banks as well as potential flooding from rivers.
Searches from the canal and railway operators and utility providers may be appropriate in some cases. From hey may disclose present and possible future risks of adverse impact on the property.
Chancel repairs derive from the ancient obligations on locals in a Parish, to contribute towards the repair of certain ancient churches of the Church of England. Chancel repair risks are commonly dealt with by insurance policy. Since October 2013, the liability is no longer applicable unless it is registered in the Land Registry.
Energy Performance Certificate (EPC)
Energy Performance Certificates are the direct equivalent of Building Energy Rating Certificates (BER) in the Republic of Ireland. They both derive from a common EU Directive. The Certificates are in similar formats.
An EPC is a certificate containing information about the energy efficiency of a building. It must include
- the energy rating of the building, concerned expressed on a scale of A – G;
- a reference value, being a benchmark against which the rating can be judged (e.g. reference to the average rating);
- the address of the building;
- estimate of the total useful area;
- name of energy assessor;
- date of issue;
- name of accreditation scheme of which the assessor is a member
An EPC is required, when a property is sold, let, or newly constructed. It is also required where it is converted and when basic services including heating, hot air or air conditioning are modified.
The EPC must be given free of charge to the prospective purchaser or tenant, at the earliest opportunity, but no later when written information concerning the building has been provided in response to a request from a buyer or tenant, when the property is viewed or in any event, prior to the contract of sale or lease.
An EPC is required in respect of any roofed construction having walls for which energy is used to condition the indoor climate. This includes building set up with fixed heating, mechanical ventilation or air conditioning.
An EPC must be accompanied by a recommendation report which contains suggestions for improvement of the energy efficiency of the building. It is to be issued by the energy assessor who issued the EPC. The EPC is valid for 10 years and may be re-used in that period.
The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 introduced a requirement that a landlord ensures its domestic and non-domestic privately rented property must reach a minimum standard of E before it can be let. An EPC is valid if it is one entered on the EPC register no more than 10 years before the date on which it is relied on, and with no subsequent EPC having been carried out. Currently, if the EPC is below Band E the property is “sub-standard”, and it is anticipated that over time this band will be raised further.
A landlord of a sub-standard property may not (subject to exemptions):
- Grant a new tenancy or extend or renew an existing tenancy of privately rented property (domestic or non-domestic) on or after 1 April 2018;
- Continue to let a domestic privately rented property on or after 1 April 2020;
- Continue to let a non-domestic privately rented property on or after 1 April 2023.
A landlord may be able to invoke one of the exemptions (which must be registered on the Private Rented Sector exemptions register), but none last indefinitely.
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