Freehold real estate law and practice - Pre-contract searche...

Learning Outcomes

This article sets out pre-contract searches and enquiries in freehold real estate practice, including:

• The caveat emptor principle and how searches and enquiries work together to expose legal, practical and financial risks before exchange
• The components of the local authority search—LLC1, CON29 and CON29O—and when to commission water and drainage, environmental, flood, chancel and mining searches
• When to obtain location-specific searches (e.g. highways, canals/rivers, railways, commons/town and village greens, HS2/Crossrail, index map/SIM)
• Adoption issues on newbuilds and the role of s38 Highways Act 1980 and s104 Water Industry Act 1991 agreements, bonds and lender expectations
• The distinction between local land charges and Land Charges searches (K15/K16) for unregistered land, and how to advise on restrictive covenants and estate contracts revealed
• Interpreting results and assessing planning and building control risks, enforcement time limits and routes to regularisation
• Using TA6 and CPSEs effectively and drafting targeted additional enquiries
• Advising clients and lenders on options: seller remedy, indemnity insurance, price renegotiation, lender retention or withdrawal, with clear and timely reporting
• The limits of searches and enquiry replies, misrepresentation risks under the Standard Conditions/SCPC, and the importance of inspection and confirming occupation, access and services

SQE2 Syllabus

For SQE2, you are required to understand pre-contract searches and enquiries in freehold real estate practice from a practical and client-focused standpoint, with a focus on the following syllabus points:

• the critical function of pre-contract searches and enquiries in identifying risks for buyers
• the content of local authority (LLC1/CON29/CON29O), water/drainage, environmental, flood, chancel, mining and other searches
• the distinction between local land charges and Land Charges (unregistered land) and when to use each
• the structure and role of TA6 (residential) and CPSEs (commercial), and the crafting of additional bespoke enquiries
• adoption of roads and sewers on new estates (s38 Highways Act 1980; s104 Water Industry Act 1991), bonds and lender expectations
• the interpretation of adverse results and planning/building control enforcement time limits; the options for obtaining regularisation or other remedies
• advice to clients and lenders, including reporting duties, certificate of title considerations, and risk management options
• practical approaches to resolving issues surfaced prior to contract exchange, including indemnity insurance and withdrawal.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the two main purposes of pre-contract searches and pre-contract enquiries in a freehold purchase?
2. Name three standard searches that should be carried out before exchange of contracts in a freehold property transaction.
3. If a local authority search uncovers an unadopted road abutting the property, how would you advise your buyer client?
4. What legal claim might arise if the seller makes a statement in response to a pre-contract enquiry which turns out to be false?

Introduction

A freehold property purchase exposes a client to a range of hidden risks which cannot be identified solely from the legal title. Pre-contract searches and enquiries are essential to uncover issues such as planning breaches, financial liabilities, physical risks, or other restrictions, before the buyer is legally committed. For all real estate practitioners, ensuring correct searches are undertaken and all relevant enquiries raised is a fundamental part of competent practice.

Key Term: pre-contract searches
Information obtained from third parties—such as local authorities, water companies, or environmental agencies—about matters impacting the property’s use, value, or security for a lender.

Key Term: pre-contract enquiries
Questions raised with the seller (usually using a standard form), seeking details about the property known only to the owner or occupier.

Types of Pre-Contract Searches

Searches allow a solicitor to obtain data held by statutory bodies and utility companies. Each is designed to investigate a specific set of risks.

• Local authority search: Identifies planning consents and breaches, building regulation history, enforcement notices, financial charges, highways status, tree preservation orders, conservation areas, nearby road schemes, and compulsory purchase orders. In practice, the “local authority search” comprises two parts and, where appropriate, optional enquiries:
  • LLC1 (local land charges register) reveals statutory charges and designations affecting the land (e.g. financial charges, TPOs, conservation area status).
  • CON29 (standard enquiries) provides highways adoption and planning-related information, including proposed road/rail schemes and enforcement.
  • CON29O (optional enquiries) can be targeted to risks in the locality (e.g. pollution notices, pipelines, and commons/town/village greens).
• Water and drainage search: Confirms mains water connection, drainage to public sewers, whether any part of the property is crossed by, or contains, water company pipes requiring protection or consents, and whether drainage is private or adopted.
• Environmental search: Reviews historical land use, nearby hazards, contamination, landfill, subsidence and, often, basic flooding risk, referencing the contaminated land regime under the Environmental Protection Act 1990.
• Chancel repair liability search: Checks for historic liability to contribute to church chancel repairs in some parishes; insurance is often a practical solution.
• Mining search (area-specific): Relevant in former and current mining areas for coal (CON29M) and other minerals (tin, clay, limestone, brine/salt) to assess ground stability and subsidence claims history.
• Flood risk and other site-specific searches: May be required according to the property’s location or advice from surveyors (e.g. canal/river searches with the Canal and River Trust/Environment Agency/Natural Resources Wales; HS2/Crossrail search; highways verges).

Key Term: local authority search
A composite search with the local council comprising LLC1 (local land charges), CON29 (standard enquiries) and, where appropriate, CON29O (optional enquiries) to reveal statutory burdens and local proposals.

Key Term: water and drainage search
A search with the local water undertaker confirming water supply connection, foul and surface water drainage to public sewers, and the presence of water infrastructure on or near the site.

Key Term: environmental search
A desktop assessment using environmental records, maps and historic land use data to identify contamination, landfill, subsidence and pollutant risks, often indicating whether further specialist investigation is warranted.

Additional Searches

Bespoke searches may be required if the property is near a canal or river (waterways search), adjacent to or covering a public road (highways search to confirm boundaries of adoption and possible ransom strips), close to village greens or commons (commons registration), or in an area with specific industrial or environmental history. Where land appears unregistered, an index map search (SIM) confirms registration status and any cautions or pending applications.

Pre-Contract Enquiries

Pre-contract enquiries are typically made using Law Society forms (e.g., TA6 for residential, CPSEs for commercial). Standardised enquiries cover a range of topics:

• boundaries, disputes, and adverse rights
• physical condition, alterations, or additions
• details of occupation (including tenancies or licences)
• third-party rights, encumbrances, or guarantees
• planning permissions, building regulation compliance, or works carried out
• insurance claims or instances of flooding
• proposals or notices received from public bodies or neighbours.

Further "additional enquiries" should be raised to clarify information arising from search results or where suspicion of possible issue arises.

Key Term: TA6 (Property Information Form)
The Law Society form used in residential transactions to capture seller information on boundaries, disputes, planning/building works, guarantees, services and occupiers.

Key Term: CPSEs (Commercial Property Standard Enquiries)
A suite of standard enquiries used in commercial transactions covering title, rights, condition, services, planning/building control, environmental issues, occupiers and insurance, supplemented by transaction-specific forms.

Worked Example 1.1

A local search for a property reveals an outstanding enforcement notice for unauthorised works and states the highway abutting the property is not adopted. What is your responsibility as the buyer’s solicitor?

Answer:
You must explain that (1) the enforcement notice means the buyer might become responsible for remedying the breach or even removing building works at their own cost if they proceed; and (2) an unadopted road may mean the owner is responsible for maintenance and future costs—unless and until the road becomes publicly adopted—and not all properties have permanent vehicular access. Advice should include negotiating resolution of the notice, obtaining indemnity insurance, and considering the suitability of the property as security for a lender before exchanging contracts.

Reviewing Results and Advising the Client

Results from searches and enquiries must be checked carefully. Adverse results may have significant legal, financial, or practical impacts for the client and may render a property unmortgageable or unsaleable. It is essential to raise further enquiries with the seller and consider solutions such as requiring issues to be resolved, renegotiation, indemnity insurance, or withdrawing.

Planning and building control risks feature prominently:

• Planning enforcement: operational development without permission is generally enforceable for four years; material changes of use (not to a single dwellinghouse) and breaches of conditions are enforceable for ten years. Some concealed breaches are not protected by these limits. An ongoing breach may still attract action.
• Building regulations: approval is separate from planning permission. Lack of compliance can lead to prosecution (typically within two years) and injunction or enforcement requiring remedial works. A local authority can issue a Regularisation Certificate following retrospective inspection if the works can be brought up to standard.

Where searches reveal newbuild estate infrastructure outstanding:

• Roads and sewers adoption: ensure s38 Highways Act 1980 and s104 Water Industry Act 1991 agreements (with bonds) are in place, or suitable private arrangements exist, as lenders expect protections against future liabilities.

Worked Example 1.2

A buyer’s water and drainage search reveals private drainage serving part of the property. What risks arise?

Answer:
If a part of the drainage system is private and not adopted by the water company, the owner could face high repair costs in future and, in some cases, responsibility to replace outdated or defective drains. This must be flagged to your client so they can budget accordingly or consider withdrawal, and may affect mortgageability.

Key Term: adoption agreement (roads)
An agreement under s38 Highways Act 1980 between a developer and the local highways authority, supported by a bond, to adopt estate roads once built to the authority’s standards.

Key Term: adoption agreement (sewers)
An agreement under s104 Water Industry Act 1991 between a developer and the water undertaker, with bond, for adoption of sewers and related apparatus when constructed to required standards.

Worked Example 1.3

A buyer’s environmental search lists “potential contamination due to historic industrial use” and a Law Society TA6 enquiry reveals the owner has never carried out tests or remediation. What advice should you give?

Answer:
You must explain that remediation may be required by the local authority, with costs falling on the owner; the site may be hard or impossible to resell or mortgage; and the buyer should consider withdrawal unless the seller satisfactorily resolves or insures against liability.

Worked Example 1.4

Your client is purchasing a newly built house on an estate. The local authority search indicates the estate road and foul/surface sewers are not yet adopted; there is no evidence of s38 or s104 agreements. The buyer is concerned about build quality.

Answer:
Require evidence of s38 and s104 adoption agreements, each backed by bonds, or suitable private management arrangements; otherwise expect lender retentions or refusal. Advise obtaining a structural defects warranty or insurance and include contract conditions requiring provision of the warranty at exchange and completion.

Worked Example 1.5

On an unregistered freehold purchase, a Land Charges search (K15) reveals a Class D(ii) restrictive covenant and a Class C(iv) estate contract against a prior owner. What is the impact?

Answer:
A registered Class D(ii) restrictive covenant will bind the buyer; its terms must be reviewed for impact on the intended use. A registered Class C(iv) estate contract (e.g. option/right of pre-emption) is binding and may prevent completion unless released or complied with. If an estate contract were unregistered, it would generally be void against a purchaser for value of the legal estate.

Limitations of Pre-Contract Searches and Enquiries

Searches only reveal information recorded by third parties as at the search date and not, for example, unauthorised or undisclosed works. Enquiries answered by the seller are not warranties; if answers turn out to be incorrect, a claim in misrepresentation may arise, but the buyer has very limited redress after exchange.

Key Term: misrepresentation
A false, misleading, or incomplete answer to a specific question (enquiry) from the buyer’s solicitor, which induces the buyer to contract.

Under the Standard Conditions of Sale/Standard Commercial Property Conditions, remedies for pre-contract misrepresentation include damages (and in serious cases rescission), but proving inducement and reliance can be difficult. A cautious approach demands targeted follow-up enquiries, documentary evidence (e.g. consent/approval certificates), and early reporting to clients and lenders.

Additional and Location-Specific Enquiries

Based on the nature of the property and information already obtained, you may need to conduct further investigations. Examples:

• If a search indicates a proposed road scheme, establish specifically which plots are affected and corresponding compensation or obligations.
• In conservation areas or listed property, review consents for all works or alterations; internal works to listed buildings may require consent, and enforcement is via criminal and civil routes.
• If flooding, mining, landfill or other risks are signalled, refer to surveyors and consider specialist insurance; confirm insurability and affordability of premiums.
• Confirm occupation: if the seller reveals (or the search indicates) another person is living at the property, clarify their rights and implications (e.g. any tenancy/licence, risk of overriding interests, vacant possession).
• Where there is a railway boundary, raise enquiries to test prior notices or costs and advise that Network Rail may require consultation for works near the line.

Worked Example 1.6

A listed cottage was extended ten years ago without listed building consent, though planning permission was obtained. What are the risks and next steps?

Answer:
Listed building consent is separate and required for works affecting special character. Absence of consent can lead to criminal liability and demands to reverse unauthorised works. Ask for evidence of consent or pursue retrospective consent if viable; consider withdrawal or price/insurance negotiations and report to the lender given resale and enforcement risks.

Exam Warning

If essential searches or appropriate enquiries are omitted, or adverse results are not adequately reported and resolved, the buyer may suffer loss which cannot be recovered after exchange. On SQE2, you must show in scenarios that you can identify, obtain, and correctly interpret the necessary searches and enquiries for the transaction.

Revision Tip

Always approach searches and enquiries with an active checklist. Consider the location, unique risks, and client questions when deciding additional searches or bespoke enquiries are needed. Distinguish local land charges (LLC1) from Land Charges searches (K15/K16) in unregistered land.

Key Point Checklist

This article has covered the following key knowledge points:

• The purpose and importance of pre-contract searches and enquiries for buyers in freehold real estate.
• The components of the local authority search (LLC1/CON29/CON29O) and the most common standard searches: water and drainage, environmental, chancel repair, mining, flood risk, and others as needed.
• Adoption risks on newbuilds: s38 Highways Act 1980 and s104 Water Industry Act 1991 agreements (with bonds), lender expectations, and management arrangements.
• The difference between local land charges and Land Charges searches for unregistered land; the effect of registered restrictive covenants and estate contracts.
• Pre-contract enquiries target matters known only to the seller, such as disputes, works, occupation, and guarantees; use TA6 and CPSEs and raise specific follow-up enquiries.
• Planning/building control enforcement time limits, regularisation routes, and the need to gather documentary proof (permissions, completion certificates).
• When results reveal risks, you must raise further enquiries, advise the client on consequences and available safeguards, and consider the need for indemnity insurance or withdrawal.
• Replies to enquiries are not warranties; misrepresentation may allow rescission or damages but is hard to prove post-exchange.
• Failing to spot problems before exchange can leave your client facing expensive, unmanageable issues after completion.

Key Terms and Concepts

• pre-contract searches
• pre-contract enquiries
• local authority search
• water and drainage search
• environmental search
• misrepresentation
• TA6 (Property Information Form)
• CPSEs (Commercial Property Standard Enquiries)
• adoption agreement (roads)
• adoption agreement (sewers)