SIM(PLES)

In the olden days, if you wanted to sell your house (or castle), you would prove your ownership by producing the deed that transferred it to you, together with the deed that transferred it to the person who transferred it to you, and also the deed that transferred it to the person who transferred it to the person who transferred it to…You get the picture. Now, over 90% of land in England and Wales is registered at His Majesty’s Land Registry. That means the Land Registry has taken the time to read through the dusty title deeds once and for all, and neatly logged the ownership (and other relevant details) on its computer.

So, one of the first things we do is carry out a Search of the Index Map - a ‘SIM’ Search. We send a plan to the Land Registry and they tell us whether that land is registered and, if so, under what Title Number. The result might show more than one Title Number for the same physical piece of land. Very occasionally that’s because the Land Registry has made a mistake. More commonly, it’s because there are simply lots of freehold titles relating to the parcel of land in question and/or the property is subject to one or more leases (with separate leasehold title numbers). It’s important we know all this at the outset.

Going local

Each Local Authority has a statutory duty to keep a register of every property in their area and to log certain details on it. A Local Search is a search of that register. It will reveal a whole host of things, but some of the most important are:

A word of warning on local authority boundaries: where the property straddles or is near to the boundary of a neighbouring authority, a separate Local Search with the other authority may be needed too. And bear in mind that a Local Search has a shelf life - as a rule of thumb, it should not be more than three months old at exchange of contracts.

Greens, commons and community assets

The Local Search will also reveal whether any part of the property is registered as common land or as a town or village green (TVG). Land registered as a TVG cannot be developed - it is subject to third-party rights of use that are extremely difficult to remove. An application for TVG registration can be made at any time if local residents have used the land informally for lawful recreation as of right (without force, secrecy or permission) for at least 20 years.

There is some protection for developers: the submission of a planning application acts as a ‘trigger event’ which suspends the right to apply for TVG status - take care though, as the trigger events also include adopted development plan documents identifying land for potential development, local development orders, and neighbourhood development orders. This protection falls away if planning permission is ultimately refused. And if a TVG application succeeds after development has begun, the consequences can be severe.

The Local Search also shows whether the property is listed as an Asset of Community Value (ACV) under the Localism Act 2011. An ACV listing does not prevent a sale, but it does trigger a moratorium period (six weeks initial, six months if interest expressed) during which a community group can register an interest in purchasing the property. Any developer or investor should be aware of this before exchange.

Health warning - these matters may apply in urban settings as well!

It’s your way or the highway

Our Local Search will state whether the road in front of the property is an adopted highway (and therefore maintained at public expense). But usually that’s not enough. Knowing that Acacia Avenue is an adopted highway does not tell you whether the title being acquired at No. 2 Acacia Avenue extends all the way to the adopted edge of the road.

Small strips of land can exist between the boundary of the property and the adopted highway - often called ‘ransom strips’. If the owner of a ransom strip does not cooperate, the property can be rendered unusable, or they can hold the developer to ransom.

We will often send a plan to the Highways Department at the Local Authority, asking them to confirm the precise extent of the adopted highway and whether it meets the title boundary of the property. This is a Highways Search. We also need to check access for pedestrians and vehicles, as well as the position regarding services and utilities running to or under the highway.

IIA or not IIA

You need to know whether the land you are about to buy is contaminated. Under Part IIA of the Environmental Protection Act 1990, you might be ordered to undertake remediation works (or pay for them) by the Local Authority or the Environment Agency. If contaminants are spreading from the property and harming others, you may be sued for damages. And if the land is contaminated, the planning authority will very likely require you to make it safe as part of your development proposals.

We commission a Desktop Environmental Search. This assesses the risk of the land being contaminated by collating information from regulatory bodies (particularly the Environment Agency) and reviewing the current and historic uses of the land. This search does not include a site visit or testing of soil or groundwater samples - so if the results raise any concerns, a more detailed Phase 1 or Phase 2 environmental investigation is likely to be needed.

Not all contamination comes from the obvious sources. PFAS - 'forever chemicals' that don't break down in the environment - are turning up on former airfields, fire stations and industrial sites, and the regulatory net is tightening around this specific source.

Environmental insurance can sometimes provide a commercial solution where contamination is present or suspected - but it is not a magic wand, and the right strategy will depend on the specific risks and the terms and cost of any policy.

Climate matters

Climate change is not only leading to fewer barbecues being cancelled in the UK; it is also having an increasingly significant effect on real estate - not only through its physical impact (such as increased flooding or subsidence), but also through transition risks: the financial and regulatory consequences of laws introduced to manage and adapt to a changing climate. These risks may affect the ability to insure, sell, let, develop or finance a property, with knock-on effects on its value and marketability.

Depending on the nature of the site and the client’s requirements, we may recommend a standalone desktop climate risk search, or this analysis may be folded into the wider environmental desktop search. Either way, your building surveyor or other specialist advisers will need to evaluate the risk and advise on next steps. And it is worth speaking to your insurer at an early stage: insurers have their own data on climate and flood risk and may impose conditions or higher excesses as a result. We can then take all of this input into account when navigating these risks in the context of the transaction documentation.

Who says property law doesn’t move with the times?

Under medieval canon law, the rector of a parish church was responsible for the repair of the Church Chancel (the end of the Church with the altar in it). That liability attached to the land owned by the rector at the time of the dissolution of the monasteries by Henry VIII. A change in the law that came into effect in October 2013 means that the number of properties bound by this liability will reduce over time - but in certain circumstances it can still bite. So, where relevant, we carry out a ChancelCheck Search to find out whether there is a potential risk. If there is, we will usually recommend that you take out title indemnity insurance.

It's worth noting there is an active Law Commission consultation on this area - recommendations for reform are expected sometime during 2026 - so the law and practice regarding these sorts of liabilities may change again in the not too distant future.

Going underground – Series 2 (what lies beneath)

The title to some properties excludes mines and minerals, meaning that a third party has the legal right to extract whatever lies beneath the surface. Where mines and minerals are excluded, there can be a real risk - where foundations are dug into the mines and minerals layer, or if minerals are removed as part of the development, the owner of those rights could claim trespass. In practice, the term ‘mines and minerals’ is interpreted broadly: it can include coal, fireclay, brickshale and other substances of exceptional use or value - but not ordinary soil.

This is more common than you might think - particularly on sites with a historical connection to a landed estate. More obviously, a mining search will certainly be appropriate where the property is located in a historical (commercial) mining area - for example, parts of Northumberland, Durham and Yorkshire (coal), Wales (coal and slate), Cumbria (coal) the East and West Midlands (coal, limestone and clay), Kent (coal, chalk and limestone) and Cornwall (tin and copper).

Title indemnity insurance can sometimes address the risk - subject to the usual analysis of whether the terms of the policy are suitable.

Mind the gap

If the property is next to a railway line, there are specific statutory considerations, overlaying anything set out specifically in the title. Under section 14 of the Railway Regulation Act 1842, Network Rail has statutory powers of entry onto adjoining land to carry out repairs and prevent accidents. Any redevelopment close to the railway will also be subject to restrictions requiring Network Rail’s prior consent and approval of plans - typically documented in an Asset Protection Agreement or Basic Asset Protection Agreement, often abbreviated to APA or BAPA (pronounced ‘Bappa’). Anyone who enters onto railway land without consent may commit a criminal offence under the British Transport Commission Act 1949.

Similar considerations apply near underground railways (for example, London Underground, the DLR or Tyne and Wear Metro). We will raise relevant enquiries with the appropriate authority where the location of the site warrants it.

Designated protection areas

Where shared ownership properties are being developed and grant funding is being received from Homes England, there are restrictions that apply in Designated Protection Areas (DPAs) under the Housing (Right to Enfranchise) (Designated Protected Areas) (England) Order 2009. In a DPA, the right to staircase to full ownership may be capped at 80 percent, or a buy-back obligation may apply where the leaseholder wishes to sell. We will check whether the property falls within a DPA as part of our due diligence and advise you on the consequences if it does.

And the rest…

The above is just the tip of the iceberg. Depending on where the property is located and what you intend to do with it, we may also consider:

And even that’s not all. The searches described above will tell you a great deal about the property - but they represent only some of the pieces of the jigsaw. We still need to investigate title. You still need to inspect the property. Your technical consultants will still need to carry out surveys. Searches are usually therefore only the start of the story, not the end of it.

This document is part of Devonshires’ It's the law series tailored for people working in development and regeneration. All reasonable precautions have been taken to ensure that the information contained is materially accurate. However, this document is not intended to be legally comprehensive, and no action should be taken on the matters covered without seeking specific legal advice.

To find out more, please contact Ben Halsey.