CLIENT CARE : CONVEYANCING INFORMATION

We shall deal with the sale and/or purchase of the property in accordance with the Law Society’s National Conveyancing Protocol and the CML (Council of Mortgage Lenders) Lender’s Handbook, copies of, which are available for inspection at our offices.

WHEN SELLING we will be deducing title to the purchaser on the basis of your title deeds and preparing the Contract in accordance with the instructions received from you. You will be required to complete Property Information form and Fixtures, Fittings & Contents list, and may be required to answer Additional Enquiries. These form an essential part of the Contract documentation. Upon sale, warranties are implied by statute and it is essential that the information you provide to us is accurate and complete. When replying to the enquiry forms please do not state “no” or “yes” to any answer unless you are 100% sure this is the case. Please do not answer “not aware” or “don’t know” to any answer but instead use the term “please rely on your own survey, no inspection or investigation has been made”.

ON PURCHASE, we shall be investigating the title with a view to ensuring that you obtain a good and marketable title to the property. We shall supply you with a copy of the registers of title and filed plan, Property Information forms and Fixtures, Fittings & Contents list. It is essential that you read through these documents with care.

We would draw your attention to the following important matters:-

1. Identity We are required to by law, whether acting for you on sale or purchase, to identify you. In most cases, you will be required to attend at our offices to execute deeds and documents. At that stage you must produce your passport and a proof of address usually in the form of a driving licence or a utility bill/ bank statement dated within the last 3 months.

1. Physical state of property. The Standard Conditions of Sale provide that the buyer accepts the property in the physical state it is in at the date of the Contract, unless the seller is building it. We shall not be carrying out any inspection of the property or comparing the plan with the physical site. If complications arise during the transaction and we consider a site inspection advisable, we shall seek your instructions. Additional fees will arise in respect of the time spent on any such site inspection. Surveyors instructed by financial institutions (or directly by you) usually carry out surveys without obtaining a copy of the plan so that their survey report does not establish that the plan is correct. In the case of every purchase, you are advised to have a survey by a qualified surveyor who is in possession of the plan and registers of title. The Estate Agents’ particulars form no part of the Contract papers and cannot be relied upon.

1. Extensions and Alterations. Many houses are altered or extended. When selling it is essential that you produce to us, as soon as possible, the approved plans, Building Regulation Consent, Planning Permission and Local Authority Completion Certificate. If you do not have these then this could give rise to difficulties during the transaction. We shall charge additional fees in respect of the time spent in seeking to obtain such information from the Local Authority, in addition to the charges made by the Local Authority for providing copy documents.

If buying, a recent High Court decision has suggested that solicitors acting for the purchaser of a residential dwelling may be under an obligation to investigate whether or not Building Regulation Consent was obtained in respect of building work carried out at the property at any time in the past! For the avoidance of any doubt, we shall not be making any enquiries of the seller or the Local Authority relating to Planning or Building Regulations beyond those contained in the standard Law Society’s Property Information form. The existence of Building Regulation approval is, in our opinion, almost worthless for the following reasons:-

(a)           the document merely establishes that the plans were approved. Those plans are rarely available and are not supplied as part of the normal conveyancing procedure;

(b)           the giving of the approval does not establish that the work was ever carried out in accordance with the plans. What is required is a Completion Certificate from the Local Authority certifying that is the case. Most sellers are unable to produce a Completion Certificate.

(c)            A Local Authority can require building work carried out without Building Regulation consent to be removed , but usually only do so if the work was completed less than twelve months ago;

(d)           In exceptional cases the Attorney General, in the public interest, can require unauthorised building work to be demolished at any time, but this is a rarely-used power;

(e)           We recommend that if Building Regulation completion documentation is not available then you should instruct a competent expert in relation to the non certified work to check that the work is safe. If it is not safe it could cause injury (even loss of life) and could also mean your building insurance policy may be invalid in the event of a claim.  NB- We may have to refer the lack of Building Regulation documentation to your mortgage company’s valuer to see of it affects their valuation.

If we are required by you or the mortgagee to make additional enquiries of the Local Authority in then additional charges may arise.

1. Exchange of Contracts. The transaction becomes legally binding upon you not at the time when you sign the Contract but at the time when we exchange the Contract you have signed with the other party. You cannot then change your mind or withdraw from the transaction without having to pay the other party substantial compensation. In the case of the buyer, you will lose the deposit payable upon exchange of contracts and become automatically liable to pay the balance between that deposit and 10% of the purchase price, whether or not the seller actually suffers any financial loss. However, your signing of the Contract is your authority to us to proceed to exchange contracts upon its terms for completion (the moving date) that we will probably have to agree with you on the telephone after you have signed.

1. Completion Date. It is the practice of many Estate Agents to seek to suggest completion dates to parties in chains of transactions without any real knowledge or understanding of the readiness of each party in the chain to exchange contracts. Whilst we would ask that you let us know in general terms your wishes in respect of the timetable of the transaction, you must understand that until every party in the chain of transactions is ready, willing and able to exchange contracts, then any proposed completion date is merely wishful thinking. You should not make any contractual arrangements of any sort or organise your holidays in reliance upon such wishful thinking. It is essential that there is a reasonable period of time between exchange of contracts (when the matter becomes legally binding) and the completion date, to give you sufficient time to organise your affairs, otherwise you will find the transaction to be extremely stressful.

1. Mortgages. We have not arranged your Mortgage. We shall not advise you upon the suitability or otherwise of the Mortgage “product” that you have chosen. In most cases we shall be acting for the financial institution providing the Mortgage in accordance with the requirements of the Solicitors’ Practice Rules, as well as yourself. This reduces conveyancing costs and speeds up the transaction. However, you must understand that we are obliged to disclose any information to the financial institution that we receive relating to your personal circumstances, the property or the transaction, that could be relevant to the financial institution in this matter. If you object to us doing so then we shall cease to act both for you and for the financial institution.

You must inform us of the names of any persons who you anticipate will be living at the property with you after completion. This includes your children aged over sixteen. The financial institution will require such persons to sign waiver documents. They may require such documents to be signed before an independent solicitor and additional charges may well arise.

You will be required to execute a Mortgage Deed to the financial institution, which we shall register at the Land Registry. The terms and conditions of the Mortgage will be supplied to you by the financial institution. If you fail to repay the Mortgage as required by the terms of the Mortgage Offer that you receive, or fail to comply with any of the other terms and conditions of the Mortgage, then the financial institution is entitled to take possession of the property and sell it.

Financial institutions always reserve the right to WITHDRAW mortgage offers if your circumstances change between the date of the mortgage offer and the making of the mortgage advance or if the financial institution receives information which suggests that the information that you originally provided to them was inaccurate or misleading. In our experience this rarely occurs. Nevertheless if the offer is withdrawn after exchange of contracts you will remain legally bound to complete the transactions and your attention is drawn to paragraph 4 above with regards to the potential consequences.

1. Searches. We shall only make the searches required by the CML Lender’s Handbook after you have put us in funds to make those searches. These searches are paper searches only and do not involve any inspection of the property. For your information, we would summarise them as follows:-

(a)          Local Search : Made with the District Council in a standard format agreed with the Law Society. The search reveals any Local Land Charges registered against the property, e.g. Smoke Control Orders, but may include financial charges. The standard questions relate to development plans, maintenance of roads, road schemes within 200 metres, outstanding notices under specified legislation, proceedings under the Building Regulations, Planning Applications and certain matters associated with planning, compulsory purchase and house programmes. The answers given will (except in the case of road schemes) be restricted to the property being purchased and will not give any information relating to adjacent land or property. There are optional enquiries for which additional charges are made, e.g. traffic schemes. If you wish us to raise any optional enquiries, you must give us specific instructions to do so.

(b)          Environmental Search : In Birmingham this is dealt with by the Local Authority, who provide information relating to the land fill site and potentially hazardous operations known to the Local Authority being carried on near to the property. Outside Birmingham the enquiries are made with an agency.

(c)           Drainage Enquiries : This search is made to establish whether or not the property is connected to a public sewer. The answer may be apparent from the seller’s water/drainage bill, in which case we will not make this expensive search unless you wish us to do so, in order to obtain the Drainage Authority’s local plan showing the positions of public sewers. In some cases this may show a public sewer passing beneath the property you are purchasing. From 1^st October 2011 the water companies adopted all private lateral drains outside the cartilage of the premises and shared drains within private premises. They therefore are now public sewers. The location of most are NOT KNOW and they usually do not show up on a drainage enquiry. You cannot build over or within 3 metres of a public sewer (without a build over agreement with the water company which can cost £10,000+)- so if you plan an extension or a conservatory, we recommend you instruct an expert to determine if there is public sewer present PRIOR TO YOUR PURCHASE.

(d)          Mining Search : This search will be made where appropriate of the Coal Authority. In mining areas it often reveals past mining activities which have ceased some years ago.

(e)          Chancel Search: This search reveals if there is a liability of a property owner to contribute to the cost of repair of the chancel (or steeple) of a church. It dates back to medieval times when the local parish church owned large tracts of land. It would sell off land within its parish on the condition that the purchaser contributed some or all of the cost of chancel repairs in future. If a liability is shown then an indemnity policy will need to be purchased by you to protect you, your ,mortgage lender and your successors in title. Modern best practice is now to not make this search but to simply obtain a successors in title indemnity policy to cover any risk of a claim- we refer you to the client care contract which provides you a demands and needs statement in relation to this policy.

1. Joint Purchasers. Where property is purchased in more than one name, then you must instruct us, at the time when you sign the Contract, whether or not you wish to have the property transferred to you as “joint tenants” or as “tenants in common”. The majority of couples purchasing a home do so as joint tenants which means the property will automatically pass to the survivor on death of one of the party by operation of law and will not pass under the deceased’s Will. However, some couples, for tax planning purposes, wish to purchase the property as tenants in common. Where property is purchased as tenants in common then you must instruct us as to the percentage share to which each purchaser is beneficially entitled. If you purchase as tenants in common then it is essential that you make a Will. Following purchase as joint tenants, it is possible to sever the joint tenancy to create a tenancy in common for tax planning or other purposes.

1. Payment. Where you are purchasing property, prior to completion we shall send you a statement (or a provisional statement) showing the balance required to complete. We shall require cleared funds from you prior to completion for that balance, which will include items such as Stamp Duty, Land Registry fees and our professional charges. Please note that we shall be entitled to refuse to complete the transaction unless and until you provide us with cleared funds for the total balance, both of the purchase price, of the disbursements and of our professional charges.