Why make searches?

Before becoming legally bound to buy a property, a prudent buyer should carry out all the searches that area relevant to that property. Indeed, the standard conditions of sale incorporated into the sale contract will normally state that the property is sold subject to all matters that would have been revealed by those searches that a prudent buyer would have carried out before entering into the contract. Accordingly, it is essential that the buyer should be aware of all such matters, since he will be buying subject to them.

When should searches be made?

The buyer will want to carry out his searches sufficiently early to ensure that he will receive the results before he wishes to exchange contracts, but equally he will want to search as late as possible in order to obtain the most up-to-date information relating to the property.

For example, where a Certificate of Title is given by solicitors acting on behalf of the seller/mortgagor to the buyer/lender, it is normal for the buyer/lender to require that searches should be no more than 3 months old (or less, depending on the views of the buyer/lender) at the date of the Certificate. Some searches take only a day or a few days, others can take more than a month before the results are received. Where exchange of contracts is to take place before a search result has been received, it may be possible for the buyer to obtain insurance against an adverse search result. Alternatively, a personal search may be able to be carried out, but the authority holding the information will not guarantee the information contained in this search.

National Land Information Service Searches

The National Land Information Service (‘NLIS’) delivers integrated electronic search facilities and aims to provide faster turn-around times for searches. NLIS acts as the ‘hub’ for information held by local authorities, the Land Registry and other information providers. There are currently three licensed channels through which solicitors may access the hub, namely Jordans, TM and Searchflow. The search request will be submitted on-line by the solicitor to his chosen channel, which will pass the request to the hub. The hub will obtain the information direct from the information provider and reports back to the channel, which supplies the search results to the solicitor. The whole procedure is streamlined and in some cases can take only a few hours to complete.

To date, NLIS has processed over 15 million searches since the system was set up in February 2001. The time taken to perform local authority searches has been reduced from weeks to an average of just under 6 days, although many local authorities deal with searches much more quickly, and the fastest recorded local search via NLIS took just nine minutes.

Who carries out searches and liability

Normally, the buyer’s solicitor will carry out the relevant searches on behalf of the buyer, but in some cases (such as where a property is sold at auction or by formal or informal tender), the seller (or his solicitor) will do so and provide a ‘package’ of search results to the buyer. The Home Information Packs (‘HIPs’), which have been compulsory for the sale of all homes in England and Wales since 14 December 2007 (subject to transitional provisions), require the seller to make local authority enquiries and a drainage and water search and incorporate the results in the HIP together with other information, such as evidence of title and an Energy Performance Certificate, which will be provided to the buyer. Additional searches may be added to the pack if the buyer so wishes. It is essential that the buyer should be entitled to rely on the information contained in the search results.

In the case of some searches, such as the local land charges search, the local authority is expressly stated in Section 10 of the Local Land Charges Act 1975 to owe a duty of care in negligence not only to the person carrying out the search but also to any buyer who relies on a search result obtained by another party . However, such liability is not made clear in respect of all searches .

There is also a limited right of compensation for a buyer who is affected by a local land charge that has not been registered, but only to the extent that his loss results from the fact that the charge is enforceable (Pound v. Ashford Borough Council, [2003] EWHC 1088 (Ch.).

Types of search

There are many different searches that can be carried out. The following are the most relevant to the majority of properties:

NAME OF SEARCH	WHEN REQUIRED	INFORMATION PROVIDED
Local Land Charges on Form LLC1	On every transaction	Local Land Charges registered in the Register of Local Land Charges – these will include conditional planning permissions, compulsory purchase orders, tree preservation orders, planning agreements, etc.
Enquiries of Local Authority on Form CON 29R (Part I Standard Enquiries of Local Authority (2007 Edition), and Form CON 29O (Part II Optional Enquiries of Local Authority (2007 Edition). Forms CON 29R and CON 29O are available under license from the Law Society in paper and electronic format, from legal stationers.	Part I Standard Enquiries: on every transaction. Part II Optional Enquiries: only those enquiries that are relevant to the particular property should be raised. It is also possible to raise additional specific enquiries .	Part I Standard Enquiries: planning and building regulations consents, adoption of roads and road schemes, conservation areas, etc. Part II Optional Enquiries: advertisement consents, pipelines, houses in multiple occupation, enterprise zones, etc.
Standard Drainage and Water Enquiries on Form CON 29DW	Standard Enquiries: on every transaction. Optional Enquiries: where appropriate.	Adoption of sewers, location of public sewers, etc.
Application for Official Search of the Index Map	On every transaction where there is any possibility that the property (or any part) is unregistered .	Whether or not the land is registered at the Land Registry and, if so, the title number(s) relating to it.
Application for Official Copies of the Register/Plan or Certificate in Form C1. Where an official copy is required of a document referred to on the Register, Form OC2 Application for Official Copies of Documents Only should be used.	On every transaction where the property (or any part) is registered (although Official Copies will in fact normally be supplied by the seller’s solicitors at the outset of the transaction).	Current entries at the Land Registry affecting the seller’s title, including charges and other encumbrances, together with the name of the registered proprietor.
Land Charges Registry Search (K15 & K16)	On every transaction where there is any possibility that the property (or any part) is unregistered.	Information relating to encumbrances over the land. Confirmation that the seller is/is not bankrupt.
Coal Mining and Brine Subsidence Claim Search on Form CON29M (2006)	Where the property is situated in an area of current or past coal mining or brine extraction.	Whether the land is situated in an area of past or present coal mining or brine extraction, the existence of underground workings.
Flooding Search at the Environment Agency	Where the property may be liable to flooding.	Whether the land is situated in an area of flood risk.
Environmental Search. There is no standard form, although there are a number of commercial organisations providing such searches, some including commentary on the relevance of the entries revealed by a search. See Groundsure and Argyll.	Potentially, in all cases .	Depending on the search form used, matters relating to the previous use of the property and land in the vicinity of the property that may cause the property to be contaminated .
Companies House Search	When the seller is a company.	The search consists of requisitioning a copy of the seller’s file at Companies House. This will confirm that the seller company is in existence, has the power to hold land and is not in liquidation. It will also reveal any charges (either specifically affecting the property itself or registered against all property owned by the seller), together with the names of the directors (so that the identity of the persons executing the documentation can be checked)

There are many other searches that may be applicable to particular properties. These include:

• a Rivers Search (made with the Environment Agency, where the property abuts a river or a river runs through the property);
• a British Waterways Search (made with British Waterways, where the property abuts a canal or a canal runs through the property);
• an Underground Railways Search (made with London Underground, in the case of underground railways in London, where the property abuts an underground railway – there is also the Metro in Newcastle);
• a Tin Mining Search (where the property is situated in Somerset, Devon or Cornwall only);
• a China Clay Search (where the property is situated in Cornwall, Devon or Dorset only);
• a Chancel Repairs Search (where the property is near to an old church – although liability may be difficult to establish for certain) - for more information on these searches, see this article ;
• a BIDs Search (to see whether or not the property lies within a local Business Improvement District pilot);
• an Access land Search (to see whether or not the property is subject to the right of open access),
• a Disadvantaged Areas Search (Relief from Stamp Duty Land Tax) (to see whether or not the property lies within a Disadvantaged Area – since March 2005, this has been relevant only to a freehold residential property costing £150,000 or less).

Where the buyer is a developer, he is likely to require searches to be carried out with all the utility companies, in order to find out what services are available in the vicinity of the property for him to use in the course of his development.

Dealing with adverse search results

Where an adverse search result is received, this should be referred to the buyer for instructions. In some cases, more information may be required, e.g. an adverse search result in the case of an environmental search may lead to a physical investigation of the property. In other cases, such as where there is a risk that the property has a liability for chancel repairs, insurance cover may be available. Sometimes, an amendment may be required to the sale contract relating to the property, or the purchase price may need to be reduced or a retention made from the purchase moneys – for example, where the road that gives access to the property has not been adopted as a highway maintainable at the public expense. In a few cases, the buyer may decide not to proceed with his purchase, although this is relatively rare.