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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.
Using a conveyancer to handle your conveyancing will greatly reduce the risk to you and sometimes, particularly if you are taking out a new mortgage, you will have no choice but to instruct a conveyancer. The good news is it doesn't have to break the bank. Get a free, instant quote here. We can also help with quick easy quotes for other moving related services.
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The Seller's Property Information Form TA6, often shortened to SPIF is part of the Law Society's National Conveyancing Protocol and should be completed by the seller(s). This chapter will take you through the SPIF produced by the Law Society and distributed by Oyez Legal Forms. I am unable for reasons of copyright to reproduce the TA6 here, however if you are selling a property and require a form you may at your own risk but use my own version of the sellers property information form which I have prepared personally as an alternative to the "Official" SPIF. Click the following link to download the Seller's Property Information Form – SPIF from our conveyancing documents page.
The seller should answer the SPIF carefully and honestly, since the answers he gives are binding on him and form part of the contract. If the seller does not know the answer to any of the questions he should answer "not known" or "not to my knowledge" or some variation. He should not leave the question blank and should certainly not answer "no" unless he is certain that is the case. An answer of "not known" etc. is deemed to mean just that, and does not imply that any investigations or enquiries have been carried out by the seller prior to giving his answer.
The TA6 version of the Sellers Property Information Form is split into sections, and the questions are largely self-explanatory however there are a few points to note and we will go through them here:-
This section of the TA6 asks the seller to state which boundaries he believes he is responsible for and which he has maintained/repaired. It also asks whether any boundaries have been moved during the last 20 years. The seller is not necessarily expected to know who owns the boundaries, nor have knowledge of the property stretching back 20 years, and need only answer to the best of his knowledge. The buyer's solicitor should still check the title to see if it states the actual legal position regarding boundaries and report to his client if it is different from what the seller says in the SPIF
This section of the sellers property information form asks whether there have been any complaints by or against the seller. This could be a dispute over parking, loud music, a planning application etc. The seller should disclose any dispute in the SPIF, however irrelevant it may seem. There have been cases of sellers being sued very heavily for failure to disclose their "neighbours from hell". The seller should give as much information as possible, using a separate sheet of paper if necessary. If the dispute is resolved, he should advise how and when it was resolved. If insufficient information is given, the buyer's solicitor ought to ask for more details as part of his initial enquiries.
TA6 also asks whether the seller knows of anything which might lead to a dispute in future. This can seem a difficult question to answer but the best way forward in my view is if in doubt, disclose, so as to remove any future liability.
In this section of the SPIF the seller should disclose any notices served or received which may affect the property. This could be a notice of a planning application, notice of planned roadworks, a noise abatement notice, or even a note from a neighbour of his intention to do some work to his property. The key to the seller protecting himself is to make the fullest disclosure possible in the sellers property information form, so giving irrelevant information is preferable to giving an incomplete picture. If not already provided, the buyer's solicitor should ask for copies of any notices to be passed on to his client.
This is probably one of the most important sections of the SPIF for solicitors. If there have been any alterations, extensions or additions to the property then the solicitor should consider whether planning permission, building regulations approval or consent under any covenant might have been required. Planning permission and building regulations approval are dealt with more thoroughly in a separate chapter, but as a basic rule of thumb, if any work has been carried out to the property within the last 10 years for which planning permission and/or building regulations approval was granted then copies should be obtained. If permission/approval should have been sought but was not then the purchaser's solicitor should consider either asking the seller to obtain the same retrospectively or to supply indemnity insurance. The same considerations apply to consent required under a covenant, save that the "enforcement period" is 20 years.
Question 4.1 of the TA6 asks whether the property has been used as something other than a private home in the last 10 years. A property that is or has been let to tenants is still a private home, what the question is really asking is has it been used for any non-residential purpose such as a hotel or shop or workshop? Using a property for a purpose other than its original purpose will usually require planning permission.
Question 4.2 of the SPIF goes on to list some possible changes that might have been made to the property and asks if they have been made and if so, in what year. The year is important because there are regular updates to the building regulations which affect what work does or does not require approval but the changes do not apply retrospectively, so for example windows installed after 31 March 2002 are subject to building regulations but windows installed on or before that date are not. Also, there are time limits outside of which action by the local authority for lack of planning permission is barred.
The SPIF asks specifically about replacement windows installed on or after 01 April 2002, central heating systems installed on or after 01 April 2005 and electrical work carried out on or after 01 January 2005. This is because the building regulations were altered on these dates to make it a requirement that future works were subject to building regulations. For more on this see the pages on planning permission and building regulations approval.
This section of the TA6 SPIF is quite self-explanatory. The seller should list all the guarantees affecting the property and if not already supplied the buyer's solicitor should ask for copies, and also confirmation that the originals will be handed over on completion. This is a good place for the buyer's solicitor to gain an indication of whether any works have been done to the property. This is of course covered in section 4 (above) however sometimes inevitably sellers will complete it incorrectly. If there is a guarantee listed for, say, a replacement roof, which isn't mentioned in the "Alterations, Planning and Building Control" section, then enquiries should still be raised.
Here the seller just needs to indicate the current council tax band and the amount he currently pays. If the information is not readily available it can be omitted. It is is not critical to the legal process and of course a buyer should be advised to check with the council tax office and not to rely on the information given by the seller.
This section of the sellers property information form deals with some physical matters relating to the land. It asks whether the property has ever been flooded. Any instance should be disclosed though what the question is really intended to uncover is whether the property might be at risk from future flooding. If the answer is yes the seller should not simply answer yes but should instead provide as much detail as possible including when the flooding took place, approximately what level it reached and what was the cause. If full details are not provided then of course the buyer's solicitor should ask for them. In addition to the information given in the SPIF the buyer should check the Environmental Agency website which give details of areas which are at risk from flooding.
The SPIF TA6 goes on to ask whether the property has ever had a radon test. Radon is a naturally occurring radioactive gas that rises through certain types of rock and out through the soil. It is common in the south west of England. In high concentrations it can be harmful though this is rare. A radon test takes 3 months to complete fully. Newer properties have protective layers built in to the foundations to stop radon escaping but in older properties there is some risk. The local authority search will say whether the property is in a risk area.
The energy performance certificate (EPC) should be supplied with the completed SPIF.
Since any legal rights should be revealed by the deeds, this section of the sellers property information form is really concerned with arrangements, formal or informal, which are not covered on the legal title. The deeds might for example say that a driveway is the responsibility of just one property, but in practice the cost of maintenance etc might be shared. The seller might have granted a licence to a neighbour to use a parking space.This section is also a good place to pick up on any rights that may be missing from the deeds. Sometimes for example there may an accessway or drive that in practice is shared between two or more properties, but at law there are no rights granted to one or more the properties. An example is a side passage between two terraced properties. If when the two properties were split into separate titles the conveyance was done correctly then the passage should be split down the middle, each property owning one half and having rights over the other, and both properties being obliged to contribute an equal portion of the cost of any repair or maintenance. In reality however this is quite often missed and one property owns the whole passage while the other has no rights. When this occurs the solicitor should enquire for what purpose the passage is used in order to assess its importance to the enjoyment of the property. It is important that the solicitor advises his client that he does not have a legal right to use it and could therefore be prevented from doing so at any time. Often this is the only action that need be taken, however it may sometimes be that indemnity insurance and/or a statutory declaration is also called for.
This question is trying to establish whether there are any charges that as owner of the property, the buyer might be liable to pay or might be asked to pay. Utilities and council tax should not be listed here and nor should ground rent or service charges for leasehold properties as there will be a separate leasehold information form. Freehold rent charges and payments to a freehold management company on a freehold estate should be listed as well as any payments you might make on an informal basis such as for the rent of a garage or parking space.
Section 10 of the TA6 SPIF asks whether anyone other than the seller is in occupation of the property. This is important as any adult in actual occupation of a property can potentially acquire rights to remain in occupation even after the owner has sold. These are commonly known as "squatters' rights". The purchaser's solicitor must ask the seller's solicitor to confirm that prior to exchange all occupiers sign an additional clause in the contract waiving their rights in favour of the purchaser.
Where the occupier is a tenant, the situation is different. In that case, the seller must serve a "notice to quit", that is to say a notice that the tenancy is to be terminated, on the tenant. The purchaser's solicitor should ask to see a copy of the notice, ask the seller to confirm that the notice has been served, and also ask to see a copy of the tenancy agreement. This is so that he can be sure the notice to quit is valid. For example the seller may give notice to the tenant that he must vacate in 1 month, whereas the tenancy agreement may stipulate that the tenant is entitled to 2 months notice. If this is the case then the notice would not be valid and the tenant would not be obliged to vacate on completion. The tenant can of course agree to terminate the tenancy early, however this must be evidenced in writing.
This part of the sellers property information form is just trying to gather some information on the seller's intentions regarding a completion date. Nothing here is binding on the seller and dates given are subject to change.
This section of the SPIF asks questions about services connected to the property. It covers whether the electrics have been tested and whether the property has a central system and if so when it was installed. This is important because of the change in building regulations in April 2005. It goes on to ask whether the property is connected to mains water and drainage.
Not all properties will be served by mains drainage. Some properties, particularly in rural areas, will instead drain to a septic tank or to a private treatment plant. If the former, the following additional enquiries ought to be raised, unless the information is already provided in the SPIF or elsewhere:- "In relation to the septic tank please let us have replies to the following:-
If the property drains to a private treatment plant then similar enquiries to points 1, 2, 3, 4, 8 & 9 should be raised. In addition, the plant will need to discharge the treated sewage and for this a "Consent to Discharge" from the Environment Agency will be required. The purchaser's solicitor should ask for a copy. Without consent, the property owner could be prevented from discharging sewage at any time. This would mean that the property had no way of discarding sewage which would of course have very serious consequences.
It is useful for the buyer to know what services are connected to the property and who the providers are as well as having contact numbers and account numbers so that he can arrange to change them to his name when he moves in and this section of form TA6 collects these details.
Once completed the sellers property information needs to be signed by all sellers and dated. Solicitors should take note of the date. If the form is several months old (the property might have been on the market for some time for example) then a new form should be completed or the sellers should be presented with a copy of the one they have completed and be asked to confirm that it is still accurate.
The sellers property information form part is for solicitors to complete to verify certain information. It does not form part of TA6 though it may appear again in future. This form has been the subject of much debate. After its introduction, it was generally agreed that solicitors should not be obliged to complete it, since it placed an unfair onus on them. After all, the purpose of the Seller's Property Information Form was to collect information from the seller. It is often impractical for a solicitor to search through old archived files, and gone are the days when we can be expected to remember each client we have ever acted for.
The argument for completing the form was some time ago rekindled however, when the Law Society published guidance stating that solicitors who did not obtain replies to the SPIF Part II may be considered negligent. This led to some practitioners arguing that failure to obtain replies would be in breach of the CML obligation to carry out "all necessary searches and enquiries". The result was that generally, the seller's solicitor would either continue to refuse to complete the form, or else give answers that were sufficiently non-committal so as to remove any risk to themselves of misrepresentation. If answers are given however then as a minimum the seller's solicitor should check through the deeds and documents which are with his client's current file and provide any additional information as may be revealed, and perhaps this was a fair compromise. The current fashion at the time of writing is not to ask for a part 2 to be completed