The Future for Conveyancing Searches by James Sherwood-Rogers
1 August 2022
In the changing world of home buying and selling, questions around the future shape of searches, the provision of information and standards of data are being hotly debated.
There are a number of issues at stake.
First of all, the clamour for ‘up-front’ information suggests that there will be increasing calls for searches, and/or data from which they are compiled, to be provided at the time, or even before, the property is listed for sale.
However, it is not clear what this looks like as there are a number of considerations. The National Trading Standards Estate and Letting Agency Team (NTSELAT) have now launched their three stages for the disclosure of material information when estate agents list a property for sale. Whilst it appears that search information would not come within the remit of the first stage of the planned implementation, it could arguably form part of the second and almost certainly part of the third stage.
This raises a number of questions – what search information is relevant, how should it be presented, and what data standards apply to its provision? If it is the case that only certain elements of searches are relevant under the definition of ‘material information’ (which are the words used in the third stage) what are the quality assurances that come with provision of that data? Currently searches are provided by HMLR, The Land Registry and private sector companies, and the overwhelming majority of the latter are provided be Search Code subscribers. This means that currently home buyers and sellers have the protection of statutory public sector organisations and a robust independently regulated Code of Practice in terms of the information that they rely on. Short of procuring complete searches at the point of listing, it will be essential that meaningful standards are introduced if subsets of search data are to be produced electronically, and with independent third-party oversight. Whilst work is proceeding on this subject within the excellent Home Buying and Selling Group (HBSG), it is some way off adoption and implementation.
So is the answer, as some are currently advocating, that searches as currently compiled should be produced at the point of marketing by the seller or their conveyancer? Well, this brings back a lot of the old issues that were associated with the inclusion of searches in Home Information Packs. Will a buyer’s conveyancer rely on searches sourced by the seller? Will a seller voluntarily opt to purchase searches when listing their property? With transaction times currently exceeding 150 days from instruction to completion, will the searches expire before a purchase completes; and if so, will there be refreshment of the search by the provider – or perhaps will there be a post code lottery? And how does this chime with the principle of ‘caveat emptor’? Short of statutory intervention there are a lot of issues that the marketplace is being asked to address on a voluntary basis.
If the move to sourcing just some of the data that is routinely used in the compilation of searches when listing a property is to be adopted, there are questions about how that is defined and how long it may take to gain access to the data. Whilst HMLR is centralising all local land charges registers (so far it has been at a funereal pace), even optimistically it will take several more years to complete the exercise. And, of course, all the data that is used in the compilation of the CON29 remains scattered across more than 320 local authorities who hold the data in different formats, and can take anything from 1 to 150 days to provide it. Surely it does not make sense to have a post code lottery when it comes to listing properties for sale.
Then of course there are all those conveyancers, particularly firms that provide conveyancing services as a non-mainstream activity, that will continue to operate in a more traditional way, procuring hard copy searches from local authorities and local search providers, and after they have been instructed by purchasers.
As the major trade body for private sector search providers in England and Wales, CoPSO has an important role to play in helping to deliver solutions that enable the market to optimise the opportunity to improve the home buying and selling process. That includes providing the governance mechanism for overseeing search standards – that could be extended to other agreed data standards for data more widely, participating in the HBSG forum and other bodies to provide expertise in all things data, continuing to support standards and challenge accessibility to public sector data, (and make it available electronically in a timely fashion) and supporting members of CoPSO to meet the changing demands of their customers.
As more information is delivered earlier in the process, it remains to be figured out exactly how to do this in a way that genuinely speeds it up whilst reducing fall-throughs, and protects consumers (and practitioners) without adding unnecessary further costs or liabilities to all those involved. It may yet result in some fundamental changes to searches as we know them today. Whatever happens CoPSO members will adapt to deliver the searches – and information – users need, backed up by a well-trusted, recognised and resilient Search Code.