The search party

Despite the new legislation put in place on 6 April this year (see Andrew Lloyd's article, 'New Season, New HIPs', Solicitors Journal, 153/13, 7 April 2009), the number of inaccurate and poorly compiled property searches has mushroomed in recent months and we are still seeing evidence of information that is out of date, missing, misleading and inaccurate.

In light of developing concerns within the searches industry and the legal community about the impact this is having on the sector and ultimately the consumer, an assessment of creating a pan-industry national code was raised at a recent local land charges conference. It returned an almost united response: 98 per cent of local authorities were in support of a national code setting out standards of good practice for property search providers in England and Wales.

Land Data and a selection of authoritative data providers have joined together to create a framework to promote the production of guidelines for setting a national code. The ultimate aim is to reassure anyone who applies for property searches that they are doing business with professional organisations adhering to certain minimum standards. The code will set out key commitments and principles that are designed to protect consumers and improve the home selling and buying process. Members of the code will display a logo and work to a stringent code of practice.

The ability to supply searches through the National Land and Property Information Service (NLIS) with a national code will demonstrate compliance with a recognised and respected standard, it shows innovation and will be an effective differentiator in the market. As consumers become increasingly informed about their choices, conformity to a recognised standard becomes pivotal.

Areas causing complaint

The CON29(R) form is the Law Society's approved method for carrying out a local land charge search. One of the positive changes the CON29(R) Working Party introduced during the last round of reviews focused on the wording of the questions on the form. Prior to the introduction of this change, positive answers varied in terms of 'yes' and 'no', in the sense that you didn't know whether or not a 'yes' answer was good or bad. For example: 'Is this road adopted': 'Yes' '“ 'Are there any enforcement notices against the property': 'No'. Reading a CON29(R) report therefore required some knowledge of the legislation and direction of the question, and you'd need to know a bit about the process or area of the question concerned. For example, for the 'enforcement notice' question you'd need to know when the notice would be revealed in answer to the question, at what point it stops being referred to on the CON29R and gets shown on the LLC1 (register and LLC1 response) and what might lead to it coming off the register and back onto the CON29R.

When considering changes, the Working Party Members all agreed that with a little re-working of the questions it could produce a form that could more easily be interpreted in terms of reviewing the answers to the relevant questions. No longer would a conveyancer need to know whether a 'yes' was positive, or a sign that further enquiries were required.

The changes to the form were implemented and now, as hopefully allconveyancers recognise, the answers to the questions listed under 'Other Matters' from 3.1 to 3.13 are written in such a way that anything other than a 'no' or 'none' requires further investigation, and a 'yes' means the matter does require further enquiries.

In addition, having reviewed a number of search responses it seems clear that a range of interpreted answers are beginning to appear; instead of a simple 'yes', 'none' or 'no' appearing, 'alternative' answers such as 'nothing on the local plan' or 'the local authority would not let us look at the relevant records' are available.

So, what should you look for when reviewing the answers to form CON29(R) and when should further information be sought? The examples below highlight some of the specific problems with the current form.

Highways maintainable at public expense

Question 2(a) of the CON29(R) form is concerned with highways maintainable at public expense. Where the local authority Highways Register is held in textual form, interpretation by a local authority highways officer should always be sought. First, textual records may not clearly show the status of the footway, footpath or verge and wrongly interpreted information can result in 'ransom strips' and loss of access. Secondly, information on grass verges or strips of land provided by any source other than a local authority should be treated with extreme caution. And lastly, the old adage 'once a highway always a highway' is an urban myth!

Nearby road schemes

Although some of the information on nearby road schemes (covered in q.3.4 of the CON29(R) may be found in the 'public domain', applying the legal definitions and interpretations of the terms 'centre line', 'outer limits' and 'road widening' should be done by trained highways personnel as the answers may not be as straightforward as the terminology suggests.

Traffic schemes

Question 3.6 deals with traffic schemes. Most of this information is not in the public domain and it rarely makes the local authority Local Plan. An answer inferring that the local authority Local Plan has been checked and is clear is not therefore a sufficient, or relevant, answer to the question. A reply stating 'none revealed' is also worrying as this suggests that issues of relevance might be revealed on a public register and that this register has been checked. There is no traffic schemes register; therefore this type of response is erroneous and misleading and the response should be queried.

Many issues arising under q.3.6 are dealt with by individual local authority officers using 'delegated powers'; therefore references to council minutes being checked are at best misleading and at worst provide an incomplete answer. Most of this information is also extremely time sensitive and needs procuring freshly from the local authority for each search. Local authorities now offer CON29(R) data at a 'cost-based' price to private search firms, therefore to safeguard clients you should ensure that the information provided by sources other than the local authority are accompanied by some form of 'proof of purchase'.

Finally, answers to 3.6 that refer you to the LLC1 response are completely misleading as these issues rarely require registration on the Local Land Charges Register.

Notices under the Planning Acts

The very wide question of notices under the Planning Acts (q.3.9) seeks information on a host of planning-related matters. There should be no LLC1 duplication here, so references to the LLC1 response, such as 'please see Part 3 schedule', are wrong and show a complete lack of understanding of both the question and CON29(R) process. Answering this question correctly also requires knowledge of the planning enforcement process.

The question asks about a range of notices that the relevant local authority are in the process of issuing. It is therefore vital that those officers with 'delegated powers' feed into the response process; again most of these issues are time critical and the currency of the answers provided, where these do not come from a local authority may be worthy of further investigation.

As mentioned, local authorities now make CON29(R) information available to those wishing to compile their own answers to a CON29(R) form, such as private search firms, on a cost recovery fee basis. Bearing in mind the often complicated interpretation required, this seems a small price to pay to protect a conveyancer's reputation and ultimately their client.

Focus on e-conveyancing

With the introduction of HIPs there has been a focus on using e-conveyancing to speed up the buying and selling process. Over 17 million searches handled by the NLIS since its inception show there is no shortage of demand for e-searches. Recent additional investment to improve the NLIS Hub flexibility and enhance security along with a new NLIS channel license strategy leads us to expect the demand to grow further. In fact many of the individual elements of conveyancing can be conducted electronically and do so quite successfully. But together the system is patchy, and what is needed for joined-up online efficiency is the piece that pulls them all together.

The aim of the Land Registry's Chain Matrix is to 'make conveyancing easier for all', specifically to develop an electronic system of conveyancing that makes buying and selling houses easier for the general public, conveyancing professionals and other parties involved in the chain. For home buyers and sellers the ability to keep track of their property chains online is an exciting and welcome option. Land Registry's development work to date on the prototype has confirmed the overall desire to improve chain transparency and has identified cross-market collaboration as a key success factor, but the impression now is that it is up to the private sector to move this on.

One group from the private sector which might be well placed to do this is the E-Homebuying Forum (EHF). Established last year, the ultimate aim of the EHF is that every firm in the country involved in buying and selling a home will be featured on a single platform. Through this, consumers will be able to track the progress of their transaction as well as communicate with all the relevant parties. EHF hopes to develop and relaunch the Chain Matrix as part of its blueprint.

For e-conveyancing to truly work, all aspects of the home buying process would need to be included; and this of course would include HIPs, in whatever form they may take for the future. Pre-sale exchange ready packs or otherwise, the NLIS will remain the fastest route for delivering up to date complete authoritative local searches.