Searches and conveyancing

The object of a property transaction is not a house. It is an interest in land, to which a house happens to be attached, and which carries with it a set of rights that benefit it and a set of burdens that bind it. Conveyancing is the process of establishing exactly what that bundle contains, confirming that the seller is entitled to transfer it, and recording the transfer so that it is enforceable against everyone else.

Title

The first task is proving ownership. In a registered system, the register records the proprietor, the extent of the land shown on a plan, and the entries that affect it: charges such as mortgages, rights benefiting the land, restrictions on dealing with it, and covenants binding it. Where land is unregistered, ownership is proved instead by an unbroken chain of historic deeds, which is slower and considerably more prone to gaps.

Two recurring complications are worth naming. Boundaries as registered are general rather than exact, so a plan does not settle a dispute about where a fence should stand. And the physical extent occupied on the ground sometimes differs from the extent registered, typically because a strip was absorbed decades ago, which has to be resolved before a lender will advance against it.

The searches

Searches are enquiries made of public bodies and data holders about matters that do not appear on the register and cannot be seen on a viewing.

The local authority search is the largest. It asks the local council what it knows about the property and its immediate surroundings: planning permissions and refusals, building regulation approvals, enforcement notices, whether the abutting road is publicly maintained, tree preservation orders, conservation area status, listing, and any proposals affecting the property directly. Its most common practical use is confirming that past alterations were consented and signed off.

The drainage and water search establishes whether the property is connected to mains water and public sewers, where public sewers run in relation to the building, and whether any structure has been built over a public sewer without agreement. This last point matters for extensions and for future ones.

The environmental search is a desktop assessment of contamination risk from historic land use, flood risk from several sources, ground stability including former mining and natural subsidence hazard, and sometimes radon. It produces a risk rating rather than a physical inspection, and a poor rating usually triggers a request for further information rather than an immediate problem.

Further searches are added by location and by property type: mining searches in former coalfield areas, chancel repair, common land, and the various region-specific enquiries that local practice requires.

Covenants and easements

Two kinds of entry cause more surprise than any other.

A restrictive covenant is a promise, usually given when land was first sold off, limiting what may be done with it. Common examples restrict building beyond a certain line, prohibit trade or business use, require estate fences to be maintained in a particular form, or forbid alterations without the consent of the original seller. Many are ancient and nobody remains who could enforce them; but 'nobody could enforce it' is a legal opinion, not an obvious fact, and where a breach already exists it is usually dealt with by indemnity insurance rather than by investigation.

An easement is a right over someone else's land: a right of way along a drive, a right to run and maintain a drain or a cable, a right of light. Easements can benefit the property being bought, in which case their absence is the problem, or burden it, in which case their existence is. Landlocked plots reached by an informal track are a classic instance where what everyone has done for thirty years turns out never to have been formally granted.

Freehold, leasehold and the space between

A freehold is ownership of the land and, ordinarily, of everything attached to it, held indefinitely. A leasehold is a right to occupy for a fixed term granted by a freeholder, subject to the covenants in the lease. Flats are commonly leasehold because the arrangement provides a mechanism for enforcing obligations between neighbours in a shared structure, which freehold ownership of a horizontal slice does poorly.

What a leaseholder needs to establish is the unexpired term, the ground rent and how it escalates, the service charge and what it covers, the state of any reserve fund, the proportion of costs the flat bears, and whether major works are anticipated. Short remaining terms are a financing issue as much as a value issue: below certain thresholds lenders decline, and the cost of extending rises as the term shortens.

Between the two sit commonhold and various forms of share-of-freehold arrangement, in which the leaseholders collectively own the freehold through a company. These change who makes the decisions without removing the need for a scheme of obligations between neighbours.

Why it takes as long as it does

The elapsed time in a transaction is dominated by turnaround at third parties rather than by effort. Searches are ordered and returned at the pace of the bodies answering them. Enquiries raised on the results go to the seller's side and come back with documents that may need to be requested from a lender, a managing agent or a local authority. Each round trip is a handful of days, and rounds are sequential because each one depends on the last.

Where a chain exists, all of this happens several times in parallel and must converge on a single date. That is the whole of the explanation. Very little of the delay in a typical transaction is anyone doing anything slowly; almost all of it is queueing.