Following recent cases of Solicitors failing to undertake appropriate property related searches Applebys Professional Negligence team, presents a comprehensive ‘Guide to Searches in Conveyancing’.
A Guide to Searches in Conveyancing
When you instruct a Solicitor to carry out the legal formalities of buying a property whether commercial or residential, your Solicitor or Conveyancer should advise you of the searches they need to undertake to check you are buying what you expect. These searches are designed to investigate the potential problems or issues that may affect the property and when completed a report is usually made available to the Solicitor. Central to this procedure, is a full understanding of the property type, its location and any representations made in the particulars of sale. This will enable the Solicitor to tailor searches appropriately and thus obtain the appropriate reports.
We see many examples of searches being missed by Solicitors. We also see a flagrant disregard to advise purchasers correctly about the potential implications of issues raised by the searches. The inspection and interpretation of these search reports is crucial to a full understanding of the implications of ownership of the property.
When things go wrong the effects can be catastrophic: Whilst we can help in claiming damages to compensate you, it is always better to get it right first time and it is vital you understand the process. This guide is not intended to replace legal advice and is for information purposes only.
Buyer Beware?
The temptation for a prospective purchaser who has fallen in love with a dream property is to be complacent about the risks of ownership. The possibility of latent defects in the property construction or location often are overlooked by zealous purchasers, who drive Solicitors with forceful representations to speed up the conveyancing process. Also of course, the legal costs incurred in undertaking searches are such that a purchaser may regard them as unnecessarily excessive.
The issue, is one of hindsight. Ultimately, the risk passes to a purchaser who opts against full investigation. If a Solicitor recommends a search then only a foolhardy client would disregard it. It must be remembered, that not every issue with a property can be seen even if inspected by an expert surveyor.
The most usual searches are listed below;
Local Authority Search
This is a three tiered search of the Local Authority’s records of any issues affecting the property. This can either be carried out as an official search using three separate forms covering different issues (which will be dealt with below) or can be carried out as a personal Search by an individual or private search company.
The three forms
The three different Local Authority Search forms are the LLC1, the CON29 and the CON290.
Form LLC1
The Form LLC1 is a search of the local land charges register and is a list of standard enquiries covering issues such as whether the building is listed, planning applications and enforcement notices, tree preservation orders, right to light orders and financial charges affecting the property such as whether you will be expected to contribute to road or sewage works.
Form CON29
The Form CON29 consists of a list of standard enquiries which will reveal such varied information as whether the local roads and sewers are maintained at the public expense, that glazing installations are compliant and whether there are any road schemes within 200 metres of the property.
The search will also reveal whether the property is in a conservation area and /or if a development plan is in place which affects the property. If the property is built on contaminated land or may be affected by Radon gas should also be revealed.
In our experience, great care should be taken on relying on searches to discover planning applications which don’t directly affect the property but which could have a serious impact on your enjoyment. Always ask upon inspection of the property and even consider asking locally. In one notable example we have dealt with, the lovely country views behind the property were to be shortly ruined by a housing development to the rear. The neighbors were surprised they had bought the property as everyone locally had been fighting the application for months but it was just outside the range of the local authority search.
Form CON290
Form CON290 contains a list of standard optional enquiries which can be adapted depending on the property. And will include footpaths passing through, road proposals, pipelines, noise abatement action and outstanding completion notices which don’t attach to the owner of the land but to the land itself and which you could find yourself bound by on purchase.
Who carries out the Local Authority search?
Extreme care should be taking in engaging a private search company or in allowing your Solicitor to carry out a personal search. This is recommended only with your approval and when time constraints don’t allow the official search to be carried out. Allowing the local Authority to carry out the searches should usually ensure that the information is comprehensively investigated by staff who are trained to understand and interpret the information. However this can take up to six weeks.
The Local Authority is obliged by statute to make the LLC1 search once the fee is paid and if a charge is not included in the certificate you would be entitled to compensation. The other searches involve a contractual obligation once the fee is paid however, you would be covered by Local Authority insurance in the event of negligence.
Water Authority Search (CON 29DW)
This will reveal how the property is served with water and whether there are any drains over the property which could affect future extension plans.
Coal Mining Search
A quick online search of the coal mining gazetteer will reveal whether a coal mining search should be carried out. This is a map search showing areas previously affected by coal mining. If indicated a search should be carried out and you should ensure you check the result with your solicitor to avoid the situation faced by a number of our clients where they were contacted by the coal authority who wished to inspect the mine shaft in the garden about which our clients knew nothing. (Please see our Mineshaft claim page for further information). Regrettably, the presence of coal mining activity is not the only reason for requesting a coal mining search. The indicated presence of other mining activity will usually also be documented. This is particularly important in areas where coal mining is not prevalent but the presence of underground mine shafts for flag stone, graphite and other minerals may be present. Ultimately, it may be a step too far for a Solicitor but recommended practice nonetheless. In such situations the use of a local Solicitor rather than a National bulk conveyancing firm is likely to be far more advantageous as historical industrial and mining activity is often well known locally.
Index Map Search
Your Solicitor should submit form SIM to the Land registry to carry out a search of their mapping records. If done correctly this should show whether the land is registered or not. If the land is registered great care should be used to ensure that the land you are expecting to purchase is contained within the registered title. A small but decreasing amount of unregistered land still exists, compulsory registration for the whole of England and Wales (which hitherto had been piecemeal) was introduced in 1990 and it is anticipated that the issue of unregistered land will slowly dissipate over the next 50 years.
Environmental Search
The flood risk to a property can be checked at the Land registry, however many purchasers obtain an environmental search which covers this more thoroughly together with details of any contamination. This is usually a desktop survey of the property detailing any contamination, flood risk, mobile phone masts and radon / methane contamination. This search is usually carried out by a private search company.
Other Searches
Depending on the location and type of property you may wish to carry out additional searches. London property purchasers may wish to carry out a London transport search for Cross Rail and planned extension lines or underground, over ground rail developments.
If your property is near to a waterway then a Canal and Rivers Trust Search can indicate potential issues with flooding and access/ works / ownership issues. The HS2 search has several advantages depending on where you are in the country with some areas benefitting from significant property devaluation and some areas significant increases in valuation depending on the proximity to the line and service points.
A tin mining search may be indicated along with China Clay (particularly in the south west). Lead mining was an intensive industry in Derbyshire and the Peak District. Limestone quarrying and mining was also a historic industry of the midlands and Gypsum affected: East Sussex, Nottinghamshire, Yorkshire and Cumbria.
Highways Search
This is a full status enquiry of the Highways authority to check whether the property has sufficient access to the public highway. This may be advisable when there is any doubt that the access road directly abuts the property.
Chancel Liability Search
This is a search carried out to ensure there are no potential leftover medieval liabilities on the property to help pay for church repairs. In one notable case a couple were held liable following a House of Lords Decision, to pay a large sum to their local church repairs. The Search costs around £18 or you can take out insurance to cover against the risk.
Nothing can replace good legal representation and the purchaser must accept that the cheapest solution is not the best. Time and money invested in proper investigation is the only route towards peace of mind in the process. However, ultimately mistakes can be made and when they are it is important that rectification is rapid and that the consequences of failure are addressed. We have years of experience in addressing property and conveyancing negligence and are best placed to advise and represent. We can usually act on a no win no fee. For a free consultation please call our team on 0800 169 1325 or e-mail claims@applebys-law.co.uk.