I am a buyer – why do I need to undertake searches & enquiries?
The legal principle of caveat emptor (“buyer beware”) puts the onus on a buyer to carry out all necessary due diligence before purchasing a property. Sellers and their solicitors are becoming less and less willing to provide full and proper information about properties being sold so it is becoming more and more important for purchasers to know exactly what the searches & enquiries process entails and what they can ask for.
Beginning with searches …
The number of potential conveyancing searches that can be carried out when buying a new house is surprisingly large and reflects the huge variety of issues that can affect a property. Whilst some issues can be a deal-breaker most of them can be dealt with to the satisfaction of both buyer and seller if they are spotted early enough in the process. The only way to find out if certain issues affect a property is to carry out searches. For this reason, they are an integral part of the conveyancing process and we would never advise a buyer to proceed without undertaking relevant searches.
Which searches should a buyer undertake?
We would always advise that a buyer carries out the following searches as a minimum (and, if you are taking a mortgage, your lender will almost certainly insist on all of these anyway):
- Local land charges and a local authority search. This will identify all the charges registered in the local register that affect the property and other information about the property and its immediate surroundings. This will include planning permission information, building regulation consents, planning agreements, adoption of roads, conservation areas and tree preservations orders.
- Commons registration search. This will identify whether the property or any part of it is registered as a common. If it is then all/part of the property will be subject to third party rights such as grazing rights, potentially impossible to develop, subject to access problems or regarded as “access land” for the purposes of rights of way legislation.
- Drainage and water enquiries. The replies to these will reveal important information about the water and drainage services at the property, including whether it is connected to the mains water supply and mains drainage and the location of these.
- Environmental Data Search. This report will assess the environmental risks affecting the property, including the risk of it being designated as ‘contaminated land’. This can have important consequences for you as if land is contaminated, and the party who caused or knowingly permitted the contamination cannot be found, you, as the current owner or occupier of the land may be required to remedy the contamination.
- Chancel Repair Search. This will indicate whether there is a risk that you, as owner of the property, would have to contribute towards the repair of a medieval church chancel. This is the search that most buyers think seems completely irrelevant but better to check rather than receive an unexpected repair bill!
There may be other searches that we would advise you to undertake depending upon the location of the property and the information revealed by the other searches and enquiries. As some search results can take around 4 weeks to be returned (even when these are ordered online) we would always want to submit the initial searches as early in the purchase process as possible to prevent delay.
Why should a buyer raise enquiries?
Enquiries in relation to the purchase of a house simply means questions that are asked of the seller. These are asked either in standard form or specifically by a buyer’s solicitor in order to supplement searches and other information received about the property.
Raising enquiries is essential as you need to know as much about the property as you can before committing yourself to the purchase. It will be too late to pull out of the purchase once contracts are exchanged so enquiries are used to supplement information already received or revealed.
We will raise enquiries as early as possible in the process as the seller will need time to gather any relevant documents or information for the replies.
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Searches & Enquiries for a seller
The legal principle of caveat emptor (“buyer beware”) puts the onus on a buyer to carry out all necessary due diligence before purchasing a property. However, recent court cases have highlighted the importance of a seller giving accurate replies to enquiries raised by a potential purchaser. If a seller gives inaccurate replies to an enquiry then the seller may find himself the subject of a claim for misrepresentation. So replies should not be misleading, nor should the preparation of replies be taken lightly.
As misleading replies can have serious consequences for a seller we would always advise providing as much information as possible to any enquiries raised. If an issue is revealed by enquiries then it is easier (and quite often cheaper) to deal with this straight away. Issues do not necessarily mean that a purchaser will pull out – although there may be a renegotiation on the purchase price if this is serious.