Conveyancing update
Conveyancing practice and procedure update: the new CON29 and CON29O forms explained
Nicola Laver describes the changes in the Law Society’s revised CON 29 and CON 29O forms, which will go live on 4 July 2016.
About the author
Nicola Laver is a freelance legal journalist.
D eveloping technology and new legislation leads to a continual increase in public data available, and the conveyancing sector is now operating in a climate of information overload. The more data available, the greater the burden of obtaining the information that may – or may not – have a decisive impact on whether or not to buy (not to mention the lender’s demands).
The local authority and service providers such as water companies - as well as other authorities - hold a huge amount of critical data applicable to land and property. Potential land and property buyers need all public information that is relevant to the property in question.
Caveat emptor (‘… buyer beware’ ) operates such that a property seller is under no obligation to tell a buyer of any defects in the property. Search and enquiries in relation to the subject property must, therefore, be carried before exchange of contracts. Enquiries of the local authority are carried out through the Law Society CON29 and CON29O forms: both are searches of public council records of data affecting land and property.
These are standard Law Society forms devised specifically for property transactions and are completed either by the local authority itself, or by another body (typically a personal search company). The ‘old’ CON29 enquiries (in use for more than half a century) cover issues including planning and building regulation decisions; road adoption; road and traffic schemes; statutory notices; enforcement; conservation; compulsory purchase; and contaminated land. CON29O optional enquiries cover matters including road proposals; public footpaths; noise abatement; planning zones; food safety; and village greens.
However, the forms have become out of date and do not cover legislative developments that affect land and property. Following a consultation period, the long-anticipated revised CON29 and CON29O (optional enquiries) forms will go live on 4 July 2016, and local authorities will accept the new forms commencing on that date.
CON29 and CON29O have been updated to take account of the latest changes in law and practice relating to property law and procedure. The most notable addition is the inclusion of enquiries in relation to community value and the introduction of the community infrastructure levy (CIL) and the Growth and Infrastructure Act 2013.
However, practitioners should note that the associated rates vary across the country and there is no ‘central register’ . In addition, not all local authorities will have a CIL charging schedule.
Further important changes are as follows:
Three new enquiries for drainage matters, reflecting changes to legislation impacting the water industry.
- A new enquiry on rail projects asking if there are any proposals for a railway, light railway or monorail within the local authority’s boundary. Major rail infrastructure projects (for example, HS2) are a relatively new thing, but which potentially impact on property.
- Important additions in relation to enquiry 1 (‘ Planning and building decisions and pending applications’ ), including details of certificates of lawfulness of proposed works for listed buildings; a heritage partnership agreement; and listed building consent order.
- Additional enquiries in relation to public rights of way, such as whether any public right of way abuts on or crosses the property and whether there are any pending applications to record such as a public right of way (this is no longer an ‘optional’ enquiry).
- In addition to a few tweaks of the CON29O enquiries, there is a new enquiry on flood defence and land drainage consents in relation to the property.
The Law Society has said that it will provide guidance notes on the revised forms of enquiry, but at the time of writing the notes had not yet been published.
The water and drainage enquiries form CON29DW is another important search for conveyancers and their purchasing clients; this has also been updated by the Law Society to reflect the very latest changes to legislation impacting the water industry. This updated CON29DW will also go live on 4 July. (See also page 39 of this issue.)
The key changes and additions include the following:
- Inquiries about private pumping stations (are there any within the boundary of the property; and are there any within 50m of the property).
- Impact of sustainable drainage systems on newly adopted sewerage networks (responses to distinguish between adoption agreements for foul water and surface sewers).
- Removal of water quality information (this is not propertyspeci fic).
- Provision of water hardness information (replacing the previous question on water quality).
The revisions recognise it is of paramount importance that property buyers are in possession of as much information as possible about the property, and that they can find this information easily. When the Law Society announced the launch date, it stated: ‘We hope that this will mean that the information provided to people and businesses, who are buying, or taking a lease of, property, and those lending money to them, will be more consistent and easier to understand.’
The revisions have been broadly welcomed by property lawyers, who expect the revisions to improve the quality, consistency and clarity of the information conveyancers receive from local authorities. However, there are concerns surrounding the potential for delay and the likely cost consequences for property buyers of obtaining information.
Delay is quite possible because there are additional enquiries included within the forms which mean a potentially slower turnaround time. For instance, specific input from additional local authority personnel will be required in relation to the questions relating to assets of community value (ACVs) and CIL, rail projects, and so on. Some observers take the view that any delay will be minimal, and while the new enquiries could lead to delay, this is unlikely to have a major impact on the transaction itself.
It is important for conveyancers to bear in mind that they will have greater due diligence obligations. The forms should not and are not designed to be used in isolation, but as part of the wider due diligence process conveyancers are required to carry out when acting for a purchaser and lender. For instance, given the new enquiry about rail projects proposals within the local authority boundary, this boundary could be geographically extensive. Should the result of this enquiry be ‘yes’ , the conveyancer will then need to investigate further as required, keeping the client updated about the implications for the transaction and, of course, the potential cost consequences of obtaining further information.
A further issue is the impact on the role of personal search companies instructed by conveyancers. If the information requested is outside the usual information available to personal search companies, the local authority will need to be approached direct. Again, the consequences are potential delay and further costs to the buyer.
However, search companies are preparing for the new forms, with Geodesys, for instance, launching an enhanced CON29DW (for the Anglian Water region). All the company’s drainage and water searches now include new details on private pumping stations; sustainable drainage; and water hardness.
Conveyancers are strongly recommended to download the new forms (including the track changed old forms) from the Law Society website,* and keep an eye open for the Law Society guidance when published.
* ‘Law Society revised CON 29 and CON 29O forms - release date’ , available at: http://tinyurl.com/huwvjx2