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A big part of the conveyancing process is the conveyancing searches. This section tells you all about them. What they are, how and when to order them and how to interpret the results. Each search has its own guide and you'll see they are separated into Standard (should be done in every case), Regional (area specific) and Optional (not essential but often useful tools for the would be purchaser). All buyers should beware that when you buy a property, the law assumes that you have seen the information that would have been revealed by searches whether or not you have actually carried them out, so you buy the property subject to the results.
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An environmental search is a desktop survey of past uses of the land in order to ascertain whether any past use is likely to have led to contamination. It does not involve a physical inspection.
There are several different providers of environmental searches on the market. Two that I am aware of and have used before are Landmark Information Group. Visit the provider's website for information on how to order. Prices range from around £35 - £50 and the results tend to be returned very quickly, say within 48 hours.
We have partnered with a reputable specialist search company to make ordering an environmental search easier, click link to order.
Under the Environmental Protection Act 1990 every local authority in England & Wales is obliged to survey the land under its jurisdiction and compile a register of sites which are found to be contaminated. So far no registers have actually been compiled but once they are the authorities will then have powers to order the owner of any contaminated land to "clean it up". Naturally it is quite possible that the cost of such a clean up operation could run into thousands of pounds.
An environmental search looks at past uses of the land to try and establish whether it has ever been used for a purpose which could have contaminated the land. The search contains a lot of information but the most important aspect is the result, which will either be passed or failed. A passed result means that the searcher could not find any evidence of a past contaminative use. A fail means that the land has been used for a purpose which may have caused contamination, such as a chemical works for example. It should be noted however that the result is not definitive - if a past owner of the land has taken action which was never recorded - illegal waste dumping say - then this will not be revealed. Conversely, the records may show that the land was previously used for "non-specific industrial purposes". This could be anything from processing dangerous chemicals to a carpenter's workshop but either way a failed result will be returned because the searcher cannot confidently give a passed certificate. If the purchaser already has a good knowledge of the history of the land then this should be taken into account when considering whether a search is appropriate.
I do not intend to go into any great detail here, since the nature of the search is that the results are for the purchaser's information only and as a lawyer I am not qualified to interpret them. If a search is obtained then the purchaser should be encouraged to read the result in full since it contains a lot of potentially useful information from whether the property is in a flood risk area to whether there are any mobile phone masts in the area. From a conveyancing point of view the key information is whether a passed or failed result is obtained. Click the link to see an example environmental search result.
There are a number of steps which should be taken if an environmental search returns a failed result. Firstly you should try to get the result reversed. If evidence can be produced to the search company to prove that the risk which led to the fail has either been dealt with or was not a genuine risk then they may reconsider the result and produce a passed certificate. The following can be done to try to achieve this:-
Often a failed result will be returned simply because the search company has revealed that the land has a past industrial use but they cannot ascertain what it was. If that use can be identified by checking old planning records then the search company may change the result.
If the property is recently built then it may be that the planning permission was conditional on a physical environmental survey being carried out and any contamination issues dealt with. If this is the case the developer, if not the planning department at the council, will have records of the remedial works carried out which can be presented to the search company for consideration.
If there is evidence that the property has or has in the past had the benefit of an NHBC insurance certificate then check with NHBC whether at the time of issue the warranty covered contamination issues. If so then ask NHBC whether they would have carried out a survey of the land, or asked to see evidence that the developer had done so.
Some search companies will, for a price, carry out the above steps on the purchaser's behalf and change their result if they believe it appropriate.
Besides attempting to have the search result reversed the purchaser's solicitor should also enquire of the seller as to whether he is aware of any contamination or potential contamination on the land and if so whether any steps have been take to remove the contamination. He should also ask whether any action has been taken or initiated by the local authority or any complaint made by anyone. For some example enquiries you may refer to the page Useful Additional Enquiries . An enquiry should also be raised with the environment department at the local authority to ascertain whether they have any record of the land being contaminated or whether they are planning to take any enforcement action.
If it is not possible to have the search result reversed or prove that the contamination has been dealt with then the matter should be reported to the purchaser and if appropriate to the mortgage lender. To ascertain whether to report to the lender you should check their CML Part 2 instructions at 5.2.4. To do this log on to the Council of Mortgage Lenders website.
It is possible to obtain indemnity insurance against the risk of action being taken against the purchaser for the land being contaminated. Some of the search providers will be able to arrange this. Countrywide Legal Indemnities also offer a policy. Click on the link to visit the relevant page of their website. As indemnity insurance goes this particular type of cover is quite expensive since the standard policy is not available for properties with adverse search results (the last one I purchased was over £250) but set against the potential cost should action be taken it is worth considering.