Conveyancing Explained

The seller doesn’t have to disclose what are known as patent defects in title i.e. those obvious to the buyer upon inspection of the property. Examples are rights of way. Its important that you check the property for any evidence of a right of way, such as used pathways, gates, signs etc. If any such defects are apparent, you must tell your conveyancing solicitor straightaway so that he can make enquiries of the seller/seller’s solicitors.

Your conveyancing solicitor should provide you with a copy of the plan of the property held at the Land Registry, showing the land which you are going to purchase. You need to check this carefully against the property on the ground to make sure that you will receive what you are actually expecting to and that the seller is not purporting to sell land to you that he/she does not own.

I’ve seen this happen before, where the seller had decided to fence off some land next to the property that actually belonged to the Council. No one had objected in the two years that had passed since, but the seller still didn’t legally own the land and therefore, what appeared to be a property situated on a large corner plot was actually a lot smaller. Something to be wary of!

Another very important thing to check when you’re viewing the property is who actually lives there. This is important because the person who owns the property might not be the only one who lives in it. Another occupier could therefore be entitled to live there, even after the seller has sold it and you have bought it!

For example, if the seller has a spouse who is not a co-owner, then they might still have a right to live there in law, even though they do not legally own the property. This is because they are protected by the Family Law Act 1996. Those in a civil partnership now have the same rights of occupation. Adult children may also have rights.

Your conveyancing solicitor should raise enquiries about who else lives in the property, but if you think that there are adult children or non-owning spouses, then you must make your solicitor aware of this straightaway. He can then ensure that the occupier signs the contract waiving any rights that they might have to live in the property.

Otherwise, you may find yourself with a lodger on completion!

The seller is generally speaking, not obliged to tell you about any defects at the property. The seller is not guaranting its condition to you and you are legally accepting its condition as at the time that you exchange contracts, unless the seller is in the process of building or converting it.

The exception is that if the seller actually knowingly tries to hide or disguise a physical defect so as to prevent you from finding it on inspection. This is likely to be viewed as false representation and you may have a potential claim. As with all matters, seek the legal advice of your conveyancing solicitor straight away.

The chancel is a part of a church which includes the altar, santuary and choir.

If the property you’re buying is situated within a parish with a medieval church, then you could find yourself required to pay towards the upkeep of the chancel area of the church.

In a case in 2000, two homeowners were asked for nearly 100,000 pounds as a contribution towards the upkeep of the local chancel area of their church and it was eventually found that they were liable to pay. A nasty shock, whether you’ve lived in a property for years or have just moved in!

Although this is a rare case, the liability still exists (although the Law Society is currently calling for the requirement to be abolished). As this is a relatively minor risk, most solicitors don’t offer this as search as standard and you’ll need to ask for advice if you want to be covered.

A chancel search can be undertaken at www.secure.clsl.co.uk/index/php. This will reveal whether the property is situated within a parish which continues to have a potential risk. If so, you can get insurance to cover you for the possibility of the church calling upon you to contribute in the future. The searches aren’t particularly expensive, they cost around 20.00 pounds for a basic area search.

Is the house near a river, stream or brook? If so, you’ll need a rivers search. This will tell you whether you’re liable to contribute towards the repair and maintenance of the river banks and will also tell you whether you’re liable for flooding from the river. You can see www.environment-agency.co.uk for more information.

Is the house next to or near a canal? If it is, then the same reasons given above will apply. See www.britainwaterways.co.uk for more information.

If the property is a new build, is unbuilt, or is situated next to a village green or common, then you need to make sure that your conveyancing solicitor is aware of this and that a Commons Search is undertaken. This is not provided in a HIP as a standard search and you will need to pay for it.

A solicitor will be liable in negligence if he doesn’t undertake this search and it is necessary due to the individual subject property.

The search is made of the register which is held under the Commons Registration Act and it will tell you and your conveyancing solicitor is the land is a village green or common. If it is, then you need to be made aware, because there could be entries such as the grazing of livestock on your front garden! If a registration is revealed, then you will probably not be able to fence off the boundaries of the property or develop it by making alterations or extensions.

It is for these reasons that it is very important that you tell your conveyancing solicitor if any of the above requirements apply i.e. new build property, unbuilt property or undeveloped land, or if the property is near a village green or common. If in doubt, check with the seller and with the local Council.

You can undertake a free check to find out whether your property needs a search undertaking by visiting www.coalminingreports.co.uk and entering the postcode. You can get further information by telephoning the Coal Authority Mining Reports Information Line on 0845 601 2608.

A full coal mining search will show you if the house is within an area that has been mined in the past or could be in the future. This is important to you because if mining has/will take place, then this can cause subsidence and damage to the building. The search also reveals brine extraction.

If the property is situated in the Dudley, Sandwell, Walsall or Wolverhampton area, then you will need to have your conveyancing solicitor obtain a search in relation to limestone mining, which you will need to pay for.

Similarly, in the Devon or Cornwall areas, clay mining and tin mining searches should be undertaken. Cheshire and Greater Manchester properties need searches in relation to brine extraction and

Hampshire and Dorset properties which are in or near the New Forest need a search undertaking via the Verderers of the New Forest (more info is available at www.verderers.org.uk). This search will reveal whether the property is situated on common land or land affected by common rights. This can mean that a right to graze animals on the open waste land of the New Forest.

Your conveyancing solicitor should check this anyway, but you should really make sure that these searches are done if the area of the property situation is relevant.

Even if your purchase is not subject to Stamp Duty Land Tax, a form still has to be filed with HM Revenue & Customs to confirm this. In any case, the form, called a Land Transaction Return Form, must be filed following completion. Your legal duties are as follows;-

1. It is your duty, and where your solicitor acts for more than one person, your duty jointly and equally, to ensure that the form is submitted to HM Revenue & Customs within a time limit of 30 days. It is usual practice for your solicitor to send the form on your behalf.
2. There are penalties for failure to submit the form on time (£100 for up to three months delay, thereafter £200 together with tax related penalty if there is a failure to file for twelve months).
3. If your solicitor completes the form on your behalf and it is usual practice for him to do so, the form is completed on the basis of information provided by you and you are responsible for the accuracy of the form and for any penalty which may be incurred if the form is returned for correction.
4. Failure to submit the form on time may result in delays in registering the transaction at HM Land Registry, who will not accept the application without an accompanying certificate from HM Revenue & Customs.
5. You are liable for payment of any tax due and where there is more than one of you, that liability is joint and several.
6. If your solicitor is named on the form as “tax agent” and it is usual practice for this to be the case then the solicitor is merely the body with whom HM Revenue & Customs will communicate and to whom any correspondence will be sent.
7. HM Revenue & Customs may enquire into the transaction and you may be liable to pay additional tax after any such enquiry.

If you want to check whether your property is exempt from Stamp Duty Land Tax, then you can use a free postcode search on HM Revenue & Customs’ website at www.hmrc.gov.uk/so/pcode_search.htm; however, there are still specific requirements for exemption even if you receive a positive result, so don’t rely on this without checking first with your conveyancing solicitor.

A Water & Drainage Report (CON29DW) is provided by the various local water companies in England and Wales. The CON29DW report reveals details of water and sewerage assets under and around properties allowing solicitors to determine if properties are properly serviced and to identify any liabilities that the owners may incur.

The search will cover the following issues;-

1. Public sewer maps
2. Foul drainage and surface water
3. Public adoption of sewers and lateral drains. This will confirm whether or not the surface and/or foul water drains run into a public or private sewer. It is often the case that the connection between the property and the publicly maintained sewer does not belong to the Local Authority and that it is privately owned/shared with the owners/users of that private connection accordingly.
4. Public sewers within the boundary of the property
5. Public sewers near to the property
6. Building over a public sewer, disposal main or drain
7. Map of the waterworks i.e. water pipes, waste pipes and drains
8. Adoption of water mains and service pipes
9. Sewerage and water undertakers
10. Connection to mains water supply i.e. public or private
11. Confirmation of how the property is billed for water and wastewater charges (water meter or rateable value)

This search should always be undertaken in every conveyancing transaction, so make sure that your quotation/estimate includes the cost of it.