The Gazette 1979

SEPTEMBER 1979

GAZETTE

Conveyancing Notes CERTIFICATES OF COMPLIANCE WITH PLANNING PERMISSION It is at present the universal practice for Builders and Vendors of new houses to furnish evidence of compliance with the conditions of the Planning Permission for the erection thereof. The normal evidence furnished is as follows:- (1) Compliance with conditions requiring financial contributions is normally proved by furnishing copy letters from the Planning Authority confirming com- pliance. In passing, it should be said that this is not always as simple as it might seem on a large estate with a variety of different Planning Permissions. (2) Compliance with the other conditions is proved by furnishing a Certificate from an Architect or Engineer, confirming that the Planning Permission (and usually also the Building Bye Laws Approval) relates to the house in question and that the house was completed in at least substantial compliance with the conditions thereof. The Law Society have agreed a form of Certificate with the Royal Institute of Architects and the Solicitors for the main Lending Institutions (Gazette — November 1978). Many Solicitors have enquired as to correct require- ments of a Purchaser's Solicitors or a Mortgagee's Solicitor dealing with the sale of a second-hand house built since 1st October 1964. The Conveyancing Committee feel that it is un- reasonable for Solicitors to insist now on being furnished with documentation which it was not the practice to furnish at the time. They have caused enquiries to be made as to when the practice of getting these Certificates of Compliance became general conveyancing practice and have been advised that it became so in 1970. The Committee accordingly advise members of the society that in their opinion, the Solicitors should only insist on such Certificates on second-hand houses built since 1970. In considering the matter, the Committee discussed the frequently stated belief that Solicitors need not concern themselves with any of these matters if the house had been built for over five years. The Committee were of the opinion that this theory does not have any basis in law. CONDITIONS IN LOAN APPROVAL Most Building Societies satisfy themselves fully about all matters the subject of their security before issuing a written letter of approval. If the loan exceeds 75% of the cost of the property, it is not unusual however for the loan to be made conditional on the Borrower taking out a Mortgage Protection Policy. Other lending institutions approve loans subject to survey or, in the case of loans by Life Insurance Companies, subject to the Borrower taking out an additional Life Assurance Policy. The normal condition that Solicitors acting for the Pur- chaser insert in the Contract for the protection of their client is a Clause to say that the Contract is subject to a loan approval being obtained. It is not usual to go on to provide that the Contract is subject to compliance with any of the conditions mentioned above, even though their compliance may be outside the power of the Purchaser. The Mortgage Protection or Life Assurance might be

refused or approved on terms that would be extremely onerous to the Purchaser. Solicitors giving undertakings to Banks and completing purchases without protecting their clients against such risks may well be negligent. It is suggested that Solicitors acting for a Purchaser should use a standard type of clause and the following is suggested as a reasonable wording:- THIS CONTRACT shall be subject to the Purchaser obtaining approval for a loan of £ from on the security of the premises PROVIDED ALWAYS that if this loan has not been approved in writing within weeks from the date hereof either party shall be entitled to rescind this Contract and in such event the Purchaser shall be re- funded his deposit without interest costs or compensa- tion. (If the loan approval is conditional on a Survey satis- factory to the Lending institution or a Mortgage Pro- tection or Life Assurance Policy being taken out or some other condition compliance with which is not within the control of the Purchaser the loan shall not be deemed to be approved until the Purchaser is in a position to accept the loan on terms which are within his reasonable power or procurement). (Delete as appropriate). In the opinion of the Conveyancing Committee, this is a reasonable Clause to use to make a Contract subject to loan. The Committee advise strongly against a Solicitor giving an undertaking to a Bank to obtain bridging finance unless and until he is certain that all conditions of the loan can be complied with. of an infant but his interests in a rather wider sense the absence of merely legal rights would not, it is submitted, remove from the sphere of potential wardship the infant whose interests are at stake; and indeed might not the fact that the infant has no legal rights to protect him make the court all the more eager to exercise its jurisdiction in the knowledge that it alone stands between the infant and the erosion of his welfare". See Jeremy Phillips, "Wardship and Abortion Prevention" (1979) 95 L.Q.R. 332, 333. Of course, the exercise of the court's theoretically unlimited wardship jurisdiction has been suspended by the Adoption Acts which provide for the protection of the child (who must be not less than six weekB old: section 8 of the Adoption Act 1974) in adoption. 49. Of course, in Mr. Justice Henchy's view, no problem arises under s. 3. The learned judge was of the opinion that a judge hearing an application under s. 3 is not necessarily concerned with the resolution of conflicting rights, legal or constitutional, but is concerned only with the attainment of a result which will be in the best interests of the child. G. v. AN BORD UCHTÁLA Continued from page 210]

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