Disclosure Obligation

What to send to the buyers solicitor:

1. Title Documents to check that the seller owns and is entitled to sell what he has instructed the solicitor to sell and to draft the contract of sale (the location of the title documents will need to be ascertained in the initial interview).
2. Other documents accompanying the title documents: Land and Charge certificates for all titles registered prior to 13 October 2003. Possibly any planning consent etc. When requesting title documents from lenders it is customary to include in the letter that the solicitor will either repay the loan to the lender (thus ending the mortgage and entitling the seller to the return of his deeds) or return the deeds to the lender.
3. An application to the Land Registry for official copies of the register entries: Made by using form OC1 and if there’s other documents that are known to be filed at the Land Registry i.e. a conveyance imposing restrictive covenants, you’ll need to apply using form OC2. Applications can be made by post but usually made by telephone or fax.
4. Home Information Packs: Properties for sale from 14 December 2007 need a Home Information Pack (HIP); containing an Energy Performance Certificate (EPC), also including documents such as sale statements, searches and evidence of title. Along with a Property Information Form and/or a Fixtures and Fittings and Contents Form. If the land is unregistered, a up to date search of the Index Map should be included.
5. The Pre-contract package; this should include a minimum of 2 copies of a draft contract, details of the sellers title, and the following if following protocol:
1. Sellers Property Information Form: originally given to the seller at the initial interview.
2. Fixture Fittings and Contents Form: also given at the initial interview.
3. In unregistered land, an Index Map Search @ Land Registry: to ensure there are no interests registered at the Land Registry adverse to the seller’s title.
4. A Land Charges Search against the seller and all other estate owners revealed by title deeds: this will reveal any incumbrance affecting the property and if any insolvency proceedings are pending.
5. Any property related Planning permission.

The purpose of this is to help the buyer quickly make up his mind if he wishes to continue with the transaction.

What the buyer should do?

1. Start pre-contract searches.
2. Deal with his clients mortgage and survey arrangements if required to do so.
3. The pre-contract package; once received its contents must be studies carefully to ensure that what is being offered for sale matches the instructions given by the buyers.
4. Home information Pack (HIP); Obtain a copy from the estate agent and study its contents In particular its searches and if any additional searches will be required. If the Property Information Form and the Fixture Fittings and Contents Form has been included and nothing in the pre-contract package from the sellers solicitors that may require changing.
5. The buyer client should be advised of any changes as soon as possible.

Powers Of Attorney: is a deed under which the donor appoints someone to carry out certain actions on his behalf. There are four types of power of attorney:

1. A general power, under s10 of the Power of Attorney Act 1971, entitles the attorney to deal with all of the donors assets.
2. A special power, permits the attorney to deal with specific assets.
3. A trustee power, used where property is held on trust.
4. An enduring power, under the Enduring Powers of Attorney Act 1985, endures through the donors mental incapacity.

The buyer is entitled to a certified copy of any power of attorney which affects the title. If the transaction is not made within 12 months of granting the power a statutory declaration should be obtained, to the effect that he had no knowledge of the revocation of the power. Otherwise its unlimited.

A trustee may delegate to another trustee by The Trustee Delegation Act 1999.

An attorney may not act as an attorney and a beneficiary for a sale of land. Over reaching allows buyers to take free of beneficial interest. Buyer’s interest passes from the land to the money.

Matters of Disclosure: Matter which do not relate to defect in title do not need to be disclosed. As it pertains to the use and enjoyment of the property. Unless asked and they mislead. Under s 2(b) addresses if theres been a formal complaint.

All easements should be discoverable and disclosed on inspection (under 2(a)). However to avoid a dispute all incumbrances should be disclosed in the contract.

Planning permission is needed in respect of any activity which constitutes ‘development’ as defined in s55 of the Towns and Country Planning Act 1990. Enforcement in respect of any breach must be started within four years of the alleged breach.