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What are Pre-Contract Enquiries?

Posted on Wednesday, 13th December 2017 by

 

What are Pre-Contract Enquiries

 

A critical element for any transaction is responding to enquiries raised by the buyer’s representative.  At their core, enquiries are simply questions raised as to the nature of the property itself or on the title, rights and obligations that come with the land. The purpose of enquiries is to ensure that a buyer has a full picture of the property they intend to purchase and highlight any defects or issues that may arise either during ownership or on a future re-sale.

The exact number and nature of enquiries that can be raised is not fixed, although solicitor’s firms accredited under the Conveyancing Quality Scheme (CQS) are bound under the conveyancing protocol to “Raise only those specific additional enquiries required to clarify issues arising out of the documents submitted or which are relevant to the particular nature or location of the property or which the buyer has expressly requested.” Reciprocally, the seller’s representative is only obliged to provide responses to enquiries that cover such matters.

The protocol goes further and states “Resist raising any additional enquiries, including those about the state and condition of the building, that have answers which are capable of being ascertained by the buyer’s own enquiries, survey or personal inspection. Such enquiries should not usually be raised.”

This is all an attempt to streamline the conveyancing process, but it is therefore important that buyers are made aware that there are limits to the remit and responsibility of the conveyancer for such matters. This places an onus on any buyer to ensure that they have properly inspected the property and obtained a professional survey. Conveyancing firms will undoubtedly remind a buyer of the old adage of ‘caveat emptor’ (buyer beware).

The Law Society advocates the use of standard information or “protocol” forms. These are designed to deal with information that was, historically, routinely requested by conveyancers. Although they are not mandatory, usually a seller will complete standard Law Society forms such as the Property Information Form (Form TA6).  This provides standardised sections for the seller to answer on various matters including boundary responsibilities, disputes, known building works, utilities maintenance and environmental matters that may be within the knowledge of the seller.

Some firm’s will have their own bespoke forms equivalent to the Law Society’s offerings. However, in all instances where such responses are provided sellers should be aware that, as per the caution note under the instruction from the Law Society on these forms, answers provided should be accurate and non-disclosure of known information can lead to a claim for compensation from a buyer. A buyer is entitled to rely on responses given by the seller, but the responses should not be seen as a substitute for performing relevant searches and surveys.

A conveyancer’s role is not to ensure that a property title is perfected, or that there are no risks, but is simply to highlight and to inform a buyer of ay issues for the buyer to take into consideration themselves. As a cash buyer, there may well be occasions where satisfactory responses are not obtained and a conveyancer will be able to frame any issues for a buyer in order that they may well wish to proceed despite inadequate responses to enquiries or to suggest mitigation of risks through indemnity policies where at all suitable.

It is for a buyer to consider whether disclosed matters impact their desire to proceed. A missing building regulation compliance certificate for a window, as an example, may not concern a buyer whereas missing documentation with regards to a loft conversion will have much broader implications on both use during ownership and on resale.

Where mortgages are involved a conveyancer will be obliged to raise certain enquiries and to obtain satisfactory responses for the lender before the matter can proceed to completion. Lenders, like buyers, have different requirements depending on what issues may be found. Some lenders require that all planning documentation is obtained and lodged with them on completion; some rely only on the conveyancer’s professional judgement as to whether the property is good and marketable for resale.

 

It is always advisable to discuss the nature of enquiries raised, and the responses, with your conveyancer.

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The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.

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