En­vi­ron­men­tal search hitch leaves first-time buyer in dark

Yorkshire Post - Property - - PROPERTY - John Rob­son

I am a first-time buyer in the process of pur­chas­ing a semide­tached house built in 1996 close to the Clifton area of York.

A prob­lem has arisen in that the En­vi­ron­men­tal Search re­quested by my con­veyance has re­turned an ad­verse re­sult. I am in­formed that ei­ther fur­ther in­for­ma­tion re­lat­ing to in­ves­ti­ga­tions car­ried out by the orig­i­nal builder or an in­dem­nity pol­icy is re­quired at a premium of £500 to £600. The seller of the prop­erty is un­will­ing to ei­ther in­struct his con­veyancer to make in­quiries, as this will in­crease in the fee charged, or to pay for the in­sur­ance pol­icy premium.

I am ad­vised my mort­gage lender will not ac­cept the po­si­tion and that I must ei­ther pay for the in­ves­ti­ga­tions or the pol­icy premium. The seller bought the prop­erty in 2008. Ac­cord­ingly, I do not fol­low why the search re­sult is now still a ma­jor prob­lem and why I have to pay ei­ther ex­tra le­gal fees or a pol­icy premium to sort it out. Can you shed any light on this for me please?

The Law So­ci­ety has, since 2002, rec­om­mended an En­vi­ron­men­tal Search as part of the re­quired searches when act­ing for a buyer in the pur­chase of a prop­erty. So a search should have been car­ried out in 2008 when the cur­rent owner of the prop­erty pur­chased it. It fol­lows the search re­sult would have re­vealed a Fur­ther Ac­tion re­port. This re­port re­quires fur­ther in­for­ma­tion to be pro­vided to the en­vi­ron­men­tal sur­veyor. The in­for­ma­tion en­ables the sur­veyor to fur­ther con­sider the prop­erty to as­cer­tain whether or not the land it is built on is des­ig­nated con­tam­i­nated land within the mean­ing of Part IIA of the En­vi­ron­men­tal Pro­tec­tion Act 1990.

As the house was built in 1996 the National House Build­ing Coun­cil (NHBC) guar­an­tee would not cover en­vi­ron­men­tal is­sues. Houses reg­is­tered be­tween April 1, 1999 and Oc­to­ber 31, 2002 cov­ered by the NHBC scheme will prob­a­bly con­tain in­sur­ance cover against spec­i­fied costs to deal with any con­tam­i­na­tion. How­ever, as from Jan­uary 1, 2003 NHBC will only pro­vide cover if they also deal with the build­ing con­trol as­pect of the con­struc­tion of the prop­erty.

This, I am afraid, does not help you as the prop­erty you are look­ing to buy was built in 1996 and, as such, the de­vel­oper prob­a­bly did not make any in­ves­ti­ga­tions into the pos­si­ble con­tam­i­na­tion of the site. An ap­proach to the de­vel­oper, as­sum­ing they still ex­ist, should be made to as­cer­tain if there is any avail­able land in­ves­ti­ga­tion and land re­me­di­a­tion re­ports. If so a copy of these re­port should be pro­vided to the en­vi­ron­men­tal sur­veyor to re­con­sider the need for a “Passed” cer­tifi­cate.

Un­for­tu­nately, from a prac­ti­cal point of view, the de­vel­oper may take some time to re­spond to such a re­quest and may not, af­ter all these years, have re­tained their records. This sit­u­a­tion will have arisen in re­la­tion to many prop­er­ties within the de­vel­op­ment sold since 2002 and, ac­cord­ingly, sim­i­lar pre­vi­ous re­quests have been ad­dressed to the de­vel­op­ers.

It is en­tirely rea­son­able to re­quest the cur­rent seller’s solic­i­tors to in­ves­ti­gate if an En­vi­ron­men­tal Search was re­quested when the seller pur­chased in 2008 and what sub­se­quent in­ves­ti­ga­tions were made. As this is es­sen­tially writ­ing one let­ter, the seller’s con­veyancer would not or­di­nar­ily in­crease their fee.

If it can be es­tab­lished the con­veyancer who acted when the seller bought did not re­quest an en­vi­ron­men­tal search then they did not com­ply with Law So­ci­ety rec­om­men­da­tion. This be­ing the case they are po­ten­tially neg­li­gent. In these cir­cum­stances it is rea­son­able to re­quest they pay the in­dem­nity pol­icy premium.

How­ever, I to­tally agree this is not an is­sue you should have to pay ei­ther le­gal or pol­icy premium fees to re­solve. The quick fix is for the seller to pay the pol­icy premium.

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