Importance of completing searches

One of our recent property cases reiterated the need for property information (title deeds, searches) to be obtained, checked and queries raised.

The case in question related to the purchase of an leasehold apartment which formed part of a managed estate. As is common practise, we obtained title documents and searches relating to the property and, as it formed part of a managed estate, we requested that the company who looked after the property provided us with replies to standard enquiries and other relevant information.

We reviewed the documents provided and noted that within the managing agent’s replies there was reference to an age restriction. This restriction provided that at least one person residing at the property had to be over the age of 60 years old. Our clients were a young couple who were not over the age of 60 nor would be any time soon. We also noted that the property’s current owner was not over the age of 60 and so potentially a breach of the restriction had occurred. We spoke with the seller's solicitors who confirmed that their client had not been informed of any restriction and had not been aware of any breach.

Efforts were made to locate the source of the restriction within the title deeds (which is usually where such items are found) but no reference was found. The managing agent believed that they had been told of the restriction by the landlord when producing their general management information pack.

The big question for our client was could they still purchase the property? The answer was yes but would there be any additional costs involved?

Next steps

The next step we took was to speak with the local planning authority. They confirmed after reviewing their records that, as part of the planning conditions attached to the original building of the estate, the restriction was placed on certain parts of the estate as part of a local initiative to provide suitable housing for older persons. Luckily the property in question did not fall within these parts and it appeared that the restriction had been noted as being against all properties by mistake.

If the restriction had related to our client’s property, there were a number of options available in order to proceed with the purchase:-

1. We could have requested that the local planning authority waive the restriction for this particular sale- this would mean that the restriction would not affect our client’s purchase. It would however affect the previous owners and any future purchasers.
2. We could have requested that the local planning authority remove the restriction entirely for the property- this would mean that the restriction would no longer affect our client or any future purchasers.
3. Both these options would be at the discretion of the local planning authority who, as you may be aware, have a number of public obligations to provide specific types of properties for different social groups. These options may also take some time and a charge will be made by the local planning authority. However, if successful, either option would have resulted in our client being able to purchase the property without any future repercussions.
4. We could have requested an indemnity insurance to protect our client from claims of breach of the restriction. However, having spoken to an indemnity company, a policy will only be issued at the discretion of the provider following a full investigation and is by no means guaranteed. It would also add an extra cost to the matter and can be only for a limited time period.
5. Finally, we may have sought assurance from the seller to confirm that in the event the restriction did affect the property and the person who put the restriction in place becomes aware that a breach has occurred, they will not seek compensation from our client for the breach by the seller.

A breach of a restriction can result in court action and an unlimited fine. In some extreme cases, it possibly could also result in a person or family being forced to sell the property in order to remedy the breach!

Restrictions and limitations on how a person can use a property are more common that one may think and so it is important for us to firstly obtain as much information as possible about the property and secondly, for us to ensure that this information allows our client to use the property as they wish to.

Please do not hesitate to contact the Conveyancing team at Ramsdens should you have any questions, call us free on 0808 1685643 or email getmoving@ramsdens.co.uk.