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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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The local authority search is a search of the local authority's records, including planning, building control, highways department etc. It is a search of the subject property only and does not cover neighbouring properties, so for an example it would not reveal planning applications relating to properties or land in the area. A separate search, known as a Plan Search, would be needed for this.
The search is made up of three basic parts - the CON29 enquiries, the LLC1 and if required the CON29 part 2 enquiries (the part 2 is not compulsory). Click the following link to view an example local authority search result
A completed form CON29 and form LLC1, together with two office copy/os map plans should be submitted to the local authority's search department. The fee varies from authority to authority but is generally between £100 - £200 (though in London it can be higher). Local searches can also be carried out through various personal search agencies. These agencies will, for a fee, visit the council offices personally (hence the name) and go through the records. Searches with these agencies are often cheaper. They claim to be faster also, though depending on the council this is not always the case. It should be noted that some mortgage lenders will not accept personal local authority searches.
We have partnered with a reputable specialist search company to make ordering a local authority search easier, click link to order.
The search result will usually only list those parts of the register which contain entries relating to the property searched, so for example if there are no financial charges, the search will not mention parts 1 & 2. It is important to remember that local land charges run with the property and so are binding on anyone who buys a property. A brief description of each part of the register follows:-
This part will contain any financial charges, the details of which are not at the time known, for example if the council passes a resolution to adopt a private road a charge may be registered against the properties which front on to it to cover any works required to bring it up to standard. The actual amount will not be known initially but if a land charge is registered then potential purchasers of a property will be placed on notice.
Where the council has carried out rechargeable works, such as the making up of a road for adoption or the boarding up of a window in an empty house, and the cost is actually known, a specific financial charge may be registered.
This section of the local land charges search will list any planning applications (and will say whether they were granted, granted conditionally, refused, withdrawn or pending). It will also include any listed buildings consents or planning enforcement notices or tree preservation orders. Planning permission is worthy of a chapter all of its own, therefore if you need to know more see the link on the left.
This section is reserved for charges that do not fit into any other category, for example smoke control orders (orders which state that only smokeless fuels can be burnt in a particular area) or Article 4 Directions
The title is self-explanatory in this case. Theses types of charges are very rare.
These relate to prospective compensation claims under the Land Compensation Act 1973, where land has been acquired under compulsory purchase procedures.
This relates to those charges covered by the New Towns Act 1981.
This relates to those charges covered by the Civil Aviation Act 1982.
This relates to those charges covered by the Opencast Coal Act 1958.
If the property has been declared a listed building, that is to say a "Building of special architectural or historical interest", then it will be revealed here. Where work has been carried out to a listed building a purchaser should insist on seeing a copy of the requisite listed buildings consent. It is a criminal offence to make alterations to a listed building without consent and unlike planning permission, the local authority's right of action is not time barred.
This relates to those charges covered by the Rights of Light Act 1959. Such a notice might be registered where something on the property, such as a building or a tree, obstructs light (that is to say overshadows or blocks the view) from neighbouring land. Often when land is developed and sold on there will be a provision in the transfer that removes any right of light that the purchaser may otherwise have, so as not to restrict the development of neighbouring retained land.
This covers land drainage schemes made by the Environment Agency or the local authority for the drainage of a small area. The expenses incurred in implementing the scheme are recoverable from the various owners of the land covered by the scheme.
Points 1.1a - d are covered by part 3 of the LLC1. Points 1.1e - g will reveal whether any applications for building regulations approval for any work done to the property have been granted or refused. Point g deals specifically with certificates of compliance relating to replacement windows, roof lights or glazed doors. Since 1st April 2002 it has been a requirement under building regulations that such work either has to be inspected and certificated by building control or else if the installer is a member of FENSA (a body set up to regulate the double glazing industry) self certificated by the installer. When work is self certificated the installer must inform FENSA who will then inform the local authority, who will make an entry at point 1.1g.
1.1.1 advises where copies of documents relating to any entries revealed can be found.
For a more detailed discussion on planning and building regulations see the links on the left
The local council will often have a development plan for their area. This section will reveal the existence of such a plan, where it can be inspected and how, if at all, any proposals will affect the land searched.
On the search application form the roads giving access to the property should listed. Where none are listed the highway fronting the property will be automatically searched. The information revealed will be as follows:-
a) - Highways maintainable at public expense
A highway maintainable at public expense (an "adopted highway") is a public road, over which everyone has rights of way. Such a road is maintained by the highways authority from the public purse.
b) - Highways subject to an agreement for adoption
When a new development is constructed the builder will initially build the roads and will look to enter into an adoption agreement with the highways authority under the provisions of section 38 of the Highways Act (this is often referred to as a Section 38 Agreement). Briefly, the terms of the agreement will be that the builder will agree to make up the road to a given standard and will then maintain it for a given period. If the conditions are met then at the end of that period the highways authority will take responsibility for the road and thereafter it will become a public road.
Until the road is officially adopted it is private road therefore if purchasing a property which is the subject of a section 38 agreement which has not yet been completed you must first check that the title contains a right of way, both vehicular and pedestrian, over the road. This should be granted in the original transfer from the builder to the first owner. It can take several years from the completion of the property to the completion of the section 38 agreement, but enquiries should be raised where the property is more than, say, 4 years old and the agreement has not yet been completed, to ensure that there are no problems which might lead to the agreement becoming void.
The transfer from the builder should contain a covenant by the builder to maintain the road until adoption.
A section 38 agreement will often be supported by bond - a sum of money paid by the builder to the highways authority that can be used to complete any works which the developer fails to complete under the agreement. This will then enable the road to be brought up to adoptable standard without recourse to public funds. Where a bond has been paid this will be revealed in the search and evidence should be requested. Some of the larger builders, such as Wimpey or Persimmon, will not be required to pay a bond.
c) - Roads to be adopted at the cost of the frontagers
Where a road is private, but the highways authority believes that it would be in the public interest for it to be public, they may pass a resolution to adopt the road. This may as a result of a petition by the frontagers. Should the authority pass such a resolution, they may charge the frontagers (owners of properties fronting onto the road) for any works required to bring the road up to adoptable standard. Where this happens a financial charge will be registered under either part 1 or part 2 of the local land charges register. Such a debt will attach to the land, not to the owner of the land at the time of the resolution. If acting in the purchase of a property in this situation therefore it is important that the buyer is made aware of the potential cost he might incur. You must also check for a right of way, both vehicular and pedestrian, over the road, as until it is actually adopted it will remain private.
d) - Roads to be adopted without cost to the frontagers
Sometimes the highways department will adopt a road but will make no charge to the frontagers. You must still check for rights of way.
Sometimes the road will simply be private and the local authority will have no current plans to adopt it. This is fine so long as the deeds contain a right of way (both vehicular and pedestrian) over the road for the benefit of the property, and also covenant by each frontager to share the cost of maintaining and repairing the road. Even where a covenant exists however this may not be enforceable since it is a "positive covenant" (see the section on covenants in the Official Copies section for more details). Where there are no rights of way or enforceable repairing covenants, the title is said to be defective and this will need to be remedied. Please refer to the chapter "Common Title Defects" for more assistance. The proper way to deal with a private road situation (though you will probably be powerless if buying the property second hand) is for the builder to set up a management company, made up of the frontagers to the road, whose function is to collect contributions (whether annually or an adhoc basis) toward maintenance. A restriction should then be placed on each person's title which states that the property cannot be transferred to another person unless the new owner enters into a direct covenant with the management company to share the cost of maintaining the road. This way, every frontager will be an original covenanting party and the covenant will be enforceable against them.
There is little that can be done if there are no repairing covenants, or if the covenants which do exist are not sufficient, save that the situation should be reported to the purchaser and if the purchaser is taking a mortgage, the lender, and their instructions should be taken.
It should be remembered that the problem of unenforceability of positive covenants arises only with freehold property. If the property is leasehold then covenants contained in the lease, whether positive or negative, are always enforceable by the landlord.
Where the deeds do not contain a right of way over the road for the benefit of the property this can be a problem, as it means that the owner does not have a legal right of access.
Sections 3.01 - 3.08 are self-explanatory. If the answers to any of the questions are not yes then this should be reported to the purchaser for information purposes but no further action taken. 3.09 relates to notices served against the property, such as planning and building regulations enforcement notices, notices of breaches of planning and building regulations and stop notices (which prevent the property from being used). It is important to remember that such notices attach to the land and not the individual who committed the breach, therefore if any are revealed then the purchaser's solicitor must ensure that any breaches are remedied or notices complied with such that no further action will be taken, prior to exchanging contracts. If this is not done then the purchaser will become liable and will have recourse against the seller. If the purchaser instructs that he wishes to proceed regardless then the matter must be reported to the mortgage lender before proceeding (who will probably refuse to lend on the property until the issue is resolved). 3.10 tells us whether the property is n a conservation area. If it is then this will restrict the "permitted development rights" in the area. Under planning legislation certain works, such as some conservatories, small extensions etc can be built without the need to made an application for planning permission. In a conservation area however these rights are restricted. Though certain development may still be allowed, the local authority should be contacted prior to commencing any work and if it is still permitted development the local authority's written confirmation should be obtained.
Question 3.11 asks whether the property is the subject of a Compulsory Purchase Order, that is to say an order by the local authority to sell the property to them, usually to be demolished so that the land can be redeveloped, or perhaps to make way for a new road. Such an order would also be binding on the purchaser therefore obviously it could have a major impact on the buyer's, and indeed the lender's, decision to proceed.
Under environmental law each local authority is now under a duty to survey land within its district or borough and compile a register of sites which are classed as contaminated. I have yet to come across an authority which has compiled its register, but presumably they will do at some point and should any land be found to be contaminated then the authorities have the power to order the land owner to "clean up" the site at his own cost, even if the contamination was actually caused by a previous owner. It seems likely that the cost of such a clean up could run into thousands of pounds therefore this section of the search should not be overlooked. It is also possible to carry out an environmental search to give an indication of whether the land is likely to be classed as contaminated in future. This is a desktop survey of past uses of the land. It would also be possible to carry out a physical site investigation and although this is common on large development sites it would be costly and is very rare for purchases of individual residential properties.
Radon gas is a potentially deadly gas which rises through the ground and, if the necessary barriers are not in place, can actually enter a property through the ground. A radon affected area is defined as an area in which more than 1% of properties surveyed shown a level of radon gas which is above the action level. If the local authority search reveals the property to be in an affected area then the purchaser's solicitor should make enquiries as to whether the seller has ever had the property tested for radon gas, or whether they are aware of the property being affected. It is not uncommon for a property to be in an affected area and this does not necessarily mean the individual property will be dangerous but nonetheless the revelation should be pointed out to the purchaser and he should be directed to the Health Protection Agency's website which has details of the affects of radon and how the levels can be tested.
You can order a local authority search here, click link to order.