The IPSA MEMBERS DAY 2009

So what’s on the agenda from me this morning? Procedural Guidance general requirements of search reports Insurance for searches in a hip The Con29 questions

PROCEDURAL GUIDANCE Statutory Instrument 1977 No. 985 SCHEDULE 6 Part 1 of Schedule 6 describes general provisions that apply to all search reports included in the home information pack, apart from official search certificates of the local land register carried out by a local authority. 1) the address of the property 2) a statement on whether there is any connection, either personal or financial, between the provider of the search report and any other person involved in the sale of the property. This is intended to ensure transparency by requiring that any business referral or other arrangements between the parties should be disclosed This is a positive duty to disclose existing relationships and there is no duty to provide a statement where no such relationships exists

3) the questions that were asked to obtain the information contained within the search report – e.g. a copy of a search application form 4) the results of the search. 5) the date the search was completed. The information contained within the search report will be treated as though it were current at this point 6) a description of the records that were examined to obtain the information contained within the search report and who they are held by 7) if the records searched are derived from other records (e.g. they are not derived from the original records) a description of the other records must be included and who they are held by;

8) a description of how any relevant documents that supplement the search replies can be obtained – e.g. documents relating to any planning permissions disclosed under paragraph 3 of Schedule 7 9) the name and address of the person responsible under the contract for carrying out the inspection for the search report and, where different, the name and address of the person responsible for preparing the report 10) the name of the person who is responsible for any errors in the search report 11) a description of the procedures that the search provider has put in place to deal with complaints or claims for redress 12) the terms on which the search report is provided, including those that are required by virtue of paragraphs 5, 6 and 7 of this Schedule, and the names of the persons liable to pay financial compensation as described in paragraphs 4(g), 4(h), 7(b) and 7(c) of this Schedule (see guidance on these paragraphs

What the Hips Regulations and Procedural Guidance say about insurance and searches in hips

The Hip Regs state The person preparing the search reports must do so on terms ensuring that: a) any liability of any type arising under paragraph 6 is the subject of a contract of insurance against such risk….. b) any liability for financial loss arising under paragraph 6 will be met by financial compensation to be paid by a person who is –i) a party to the contract of insurance –ii) another person involved in the sale of the property c) such financial compensation is paid by a person mentioned in sub-para (a) if any person mentioned in sub-para (b) fails to pay it or no longer exists or has no successor

Procedural Guidance Insurance cover for third party contractual rights Paragraph 6 provides that the seller, buyer and mortgage lender have rights to enforce the contract under which the search is prepared A person providing inaccurate information might owe duties under the law of negligence to third parties when preparing the report, but such liability would depend on the individual circumstances of each case. This provision guarantees direct legal rights for sellers, buyers and lenders (whether or not they are a party to the contract) It guarantees that in the event that a party to the contract cannot, does not, or will not meet the liability (e.g. because it is unwilling to or has gone out of business), it will be met through insurance

Suitable insurance arrangements must be in place with an insurer authorised under the Financial Services and Markets Act 2000 to cover the terms mentioned in paragraph 6 (including “run- off” cover) 1.Professional Indemnity insurance does not cover all parties to the contract 2.Professional Indemnity insurance does not cover any liability of any type 3.Professional Indemnity insurance does not include ‘run off’

Procedural Guidance and the Con29 Schedule 8 of the Procedural Guidance deals with ‘Local Enquiries’ The enquiries must relate to the property in question while the appearance of the local enquiries and additional authorised or required information may vary, the content of the enquiries themselves must not The guidance includes suggested answers to enquiries There is no requirement for search providers to use these standard answers but, for the sake of consistency, it is strongly recommended that they do so.

1.1 Planning and Building Decisions and Pending Applications Which of the following relating to the property have been granted, issued or refused or (where applicable) are the subject of pending applications- The reply, except where there are no such matters, should comprise a list including: The nature of the document, its date Its reference, the description of development or use The reply should also say how copies of documents can be obtained, including contact details and fees QUESTION 1: PLANNING AND BUILDING REGULATIONS

(d) a certificate of lawfulness of existing use or development (e) a certificate of lawfulness of proposed use or development The answer to both of these questions can be found in the Planning Register (h) any building regulations certificate or notice issued in respect of work carried out under a competent person self-certification scheme This question previously only applied to FENSA Schemes but has now been expanded to include all competent person self-certification schemes Make sure that the information provided by your council includes all schemes

1.2 Planning Designations and Proposals What designations of land use for the property or the area, and what specific proposals for the property, are contained in any existing or proposed development plan? Suggested answer: The [insert name] plan indicates that the designations or proposals are [insert description of designations or proposals] and copies may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert level of fee] per copy; or None

Remember the Local Development Framework (LDF) Should have been in by September 2007 Until councils have produced an LDF they are allowed to continue using their existing Development plan But most councils are revising this in readiness for the introduction of the LDF They’re doing this by either ‘saving’ or ‘deleting’ policies You need to check if your council has any saved or deleted policies

QUESTION 2: ROADS Which of the roads, footways and footpaths named in the application for this search are- The Procedural guidance suggests the following answer to questions a, be, c and d: a) (road name) is a highway maintainable at public expense; or b) (road name) is to be adopted as a highway maintainable at public expense under an agreement dated [insert date of agreement], subject to the agreement being fully performed. That agreement is supported by a bond or a bond waiver; or

c) (road name) is to be constructed by a local authority who will reclaim the cost of the frontagers and will then become a highway maintainable at public expense; [road name) is to be adopted by a local authority without reclaiming the cost of the frontagers and will then become a highway maintainable at public expense; or d) (road name) is private or otherwise not maintainable at public expense, and is not subject to any agreement or decision under which it would become a highway maintainable at public expense Have they just made that last one up? The questions apply to all roads which adjoin the property

QUESTION 3: OTHER MATTERS In relation to the following questions the procedural guidance states ‘for the avoidance of doubt, the enquiries in paragraphs 6 to 18 do not relate to matters covered by the appropriate local land charges register’ Paragraphs 6 to 18 covers questions 3.1 to 3.13 if there is an entry in the Land Charges Register relating to the question the answer to the question is ‘no’

3.1 Land required for Public Purposes Is the property included in land required for public purposes? 3.2 Land to be acquired for Road Works Is the property included in land to be acquired for road works? The suggested answer in both cases is: (a) Yes [Insert details of matter and add]. Copies of relevant documents may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert level of fee] per copy; or (b)No.

3.3 Drainage Agreements and Consents Procedural guidance points out: Although drainage matters are now dealt with by water companies, local authorities may have records on these matters dating from before privatisation and which are not held by the current sewerage undertaker All pre-privatisation agreements were Registerable so the answer to these questions is always ‘None’ Referrals to the Water Company is an incorrect response

3.4 Nearby Road Schemes Is the property (or will it be) within 200 metres of any of the following: The suggested answer is either Yes, the relevant proposals are [insert details] and copies of relevant documents may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert the level of fee] per copy; or Not so far as is known. Procedural guidance states that - Local authorities can only provide information on proposals that they are aware of so can we You could try:

3.5 Nearby Railway Schemes Is the property (or will it be) within 200 metres of the centre line of a proposed railway, tramway, light railway or monorail? 3.6 Traffic Schemes Has a local authority approved but not yet implemented any of the following for roads, footways and footpaths which abut the boundaries of the property: a – l The suggested answer to both questions is the same as 3.4 With regards to the Street Works Register Proposal to include all council traffic schemes but it was never implemented Most councils do place TROs on their website

3.7 Outstanding Notices Do any statutory notices which relate to the following matters subsist in relation to the property other than those revealed in a response to any other enquiry in this Schedule- a - e Suggested answer (a) Yes, the relevant proposals are [insert details] and copies of relevant documents may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert the level of fee] per copy; or (b) Not so far as is known. This question relates to ‘subsisting’ notices and not as I heard one council state ‘it also covers proposed notices and you can only get them from us’

3.9 Do any of the following subsist in relation to the property, or has a local authority decided to issue, serve, make or commence any of the following- a – h The procedural guidance states The question is intended to reveal subsisting matters so any matter that is defunct or not capable of being enforced can be disregarded (this matter is dealt with in question 3.9 of form CON 29). Subsisting notices should be on one or other of the registers With reference to proposed notices there is a real danger of breaching the Data Protection Act by revealing such details to a third party

3.10 Conservation Areas Do the following apply in relation to the property- The question also requires the inspection of records to reveal whether the property is within an area that has been designated by resolution of the local authority as a conservation area but not yet registered as a local land charge Such resolution must be published by the council and put out to consultation Suggested answer as previously: Yes, a decision was taken on [insert date] and copies of relevant documents may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert level of fee] per copy; or (b) No

3.11 Compulsory Purchase Has any enforceable order or decision been made to compulsorily purchase or acquire the property ? Suggested answer (a) Yes, a decision was taken on [insert date] and copies of relevant documents may be obtained from [insert names and addresses of the relevant bodies] at a fee of £[insert level of fee] per copy; or (b)Not so far as is known This question is designed to reveal whether the local authority has made an enforceable compulsory purchase order or has passed a resolution to make such an order in respect of the property or any part of it (this matter is dealt with in question 3.11 of form CON 29) Details of resolutions would almost certainly come under Data Protection

3.12 Contaminated land The reply should include the following statement – “A negative reply does not imply that the property is free from contamination or from risk of it, and the reply may not disclose steps taken by another council in whose are adjacent or adjoining land is situated.” Despite appearing to be mis-leading the statement is correct Answers to every question could be negative and the land still contaminated The statement should appear on personal search reports

3.13 Radon Gas Do records indicate that the property is in a “Radon Affected Area” as identified by the Health Protection Agency Suggested answer (a)Yes, it is in an area where 1% or more of homes are estimated to be at or above the Action Level. (b)(b) No. Yes, it is in an area where less than 1% of homes are estimated to be at or above the Action Level Well that’s as clear as mud

Copies of the amended procedural guidance including suggested answers will be available to download from the IPSA website at