CPSE.1 (version 4.0) General pre-contract enquiries for all commercial property transactions

This enquiry is concerned with verifying the extent of the Property. The questions are aimed at matching the title description of the Property with what appears on the ground as the physical extent of the Property, often marked by features such as walls, trees, ditches and hedges.

The Property will be defined in the title deeds and, if title is registered, the extent of the Property will be shown on the title plan. However, the Land Register is not conclusive as to boundaries and the boundary features may not correspond exactly with the title description. They may lie:

The Buyer also needs to know who is responsible for maintaining boundary features. The title deeds may not contain information about the ownership of the boundary features or their maintenance, and in the absence of any clear indication the Buyer must find out what the Seller and others have regarded as their responsibilities. If available, the Seller should include details of:

Although it is up to the Buyer to obtain suitable plans, the Seller should supply copies of whatever plans it has in the interests of speeding up the Transaction. It would be helpful if the Seller were to mark all the boundaries on a plan and indicate which belong to the Property using "T" marks along the inside of the boundary line.

If there is any boundary dispute, the Seller should give details here or in response to enquiry 20.

Examples of what may be included in the reply to this enquiry include:

Examples of what might be included in the reply to this enquiry include:

The Buyer needs to establish whether there is any issue of adverse possession by the Seller. Enquiry 1.7 is, therefore, concerned with land or premises which do not actually form part of the Property to which the Seller has paper title, but which the Seller is nevertheless still using or enjoying.

The reply to enquiry 1.7 will help identify whether the Buyer will acquire title to additional land by reason of the Seller's adverse possession, as well as whether use or occupation of other property will be needed by the Buyer to enjoy the Property once acquired.

Express reference is made to plans because if the Right is an easement that is not formally documented, the Buyer will need to know the exact position, line or route of the easement. This is necessary to enable the Buyer to check the title to the servient tenement to ascertain whether the burden of the easement has been properly noted on it (without which the easement may not be binding on the owner of the servient tenement).

If for some reason an easement has been protected by a Unilateral Notice, the Buyer will need to change the identity of the beneficiary of the Unilateral Notice. Where the servient tenement is unregistered and a caution against first registration has been registered to protect the easement, the Buyer may need to change the name and address on the cautions register or, if this is not possible, lodge a new caution in the Buyer's own name. Failure to change the beneficiary's name and address will result in any warning-off notice not being received.

This enquiry concerns registered title and overriding interests. The Property may be subject to third party rights and interests, which will not necessarily be apparent from the title deeds or from any inspection of the Property, but which will still bind the Buyer whether or not the Buyer knows of them. LR Practice Guide 15 - Overriding interests and their disclosure describes the law relating to overriding interests and how it has changed under the Land Registration Act 2002.

Part I of the Countryside and Rights of Way Act 2000 gives a public right of access to land that comes within the definition of "access land" in section 1(1) of that Act.

The countryside bodies, Natural England and the Countryside Council for Wales, are charged with producing conclusive maps showing access land. Access land is any land which is shown on the conclusive map as:

For areas where a conclusive map has not yet been produced, access land is any land which is:

Access land is also land which:

The definition of "access land" excludes the 13 categories of land listed in Schedule 1 to the Act, defined as "excepted". This includes cultivated land, land covered by buildings and land within 20 metres of a dwelling. In particular cases, landowners are entitled to exclude or restrict the public's right to enter access land. The principal exclusion is a right to exclude the public for up to 28 days in any calendar year, on terms prescribed by the Access to the Countryside (Exclusions and Restrictions) (England) Regulations 2003.

The Seller may not know whether the Property has been designated as access land because the designation procedure does not include any requirement for service of a notice on the landowner. The Buyer will, therefore, also need to make its own inspection of the public maps that indicate the extent of access land (these are accessible through the maps accessible on the Natural England (NE) website, see NE: CRoW & Coastal Access Maps).

The purpose of this enquiry is to determine whether there is a possibility that an application may be made to register the Property as a town or village green. Where land has been registered as a town or village green, interference with it or encroachment on it is a criminal offence under section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876.

Enquiry 22 on form CON 29O (Optional Enquiries of Local Authority) will reveal whether the Property, or any land which abuts the property, is registered as a town or village green under the Commons Registration Act 1965 or the Commons Act 2006, but will not reveal whether an application for such registration has been made but not yet determined by the registration authority, nor whether an application is likely to be made in the future.

It is not possible for a landowner to protect itself in any way against such an application being made, and additional enquiries are therefore needed. These may include making enquiries of the registration authority (to enquire whether there is a pending application for registration) and of the Seller.

In outline, section 15 of the Commons Act 2006 provides that anyone can apply to register land as a town or village green where "a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years" and either

(A transitional period, which allowed an application to be made in certain circumstances up to five years after the use ceased, ended in April 2012 for land in England and in September 2012 for land in Wales.)

Because an application may still be made up to two years after the use ceased, Enquiry 4.7 asks whether the Seller has any knowledge of recreational use of the Property by local people within the preceding period of ten years. This is a much longer period to enquire about than is necessary but, by erring on the side of caution, it is more likely that relevant information will be elicited where memories may be uncertain.

"Policy documents" generally comprise the policy and schedule showing the level of cover. Copies of any other documents referred to in the policy documents should also be produced (e.g. any opinion of counsel).

The Seller should include details of any application for insurance that has been refused as this is relevant information that must be disclosed on a future insurance application and may also be useful in making any subsequent re-application.

The Buyer needs to be satisfied that there are adequate rights of access to the Property. If access is direct to a public highway, no additional rights of way will be necessary and the Buyer will need to check only that there are no outstanding maintenance charges in respect of the highway (see enquiry 13).

Local authority enquiries should reveal whether roadways and footpaths are public highways, and therefore maintainable at public expense. These enquiries are unlikely, however, to reveal whether the boundary of the property searched directly abuts the public highway for its full length. Supplementary enquiries at the relevant highway authority and/or the Highways Agency should disclose the extent of the area adopted as public highway. The quality of the plans provided by these agencies can vary, however, and may be different, or differently scaled, from Land Registry plans. In some cases, especially purchases of development land, it may be prudent to verify the results with a physical inspection and further enquiries of, for example, adjoining landowners. Gooden v Northamptonshire County Council [2002] 1 EGLR 137 CA highlights the limitations, not least in terms of recourse, in relying solely on information proving to be unreliable obtained from local authority searches and enquiries.

Access may be controlled by a third party (e.g. by means of a locked gate). Enquiries should be made as to availability of keys, times when the barrier is attended by an operator and access arrangements when the barrier is not attended.

Until the dangers from exposure to asbestos became known, asbestos was used extensively in building materials to provide protection from heat, fire and sound. It was found in, for example, floor tiles, pipe insulation, wall and ceiling panels, roofing and in decorative plasterwork. Regulations controlling the use of asbestos in buildings culminated in a total ban on the use of asbestos and asbestos containing materials in 1999. Nevertheless, much of what was used in the past is still in place, constituting a significant health risk to those involved in building, renovation or maintenance work.

The management of asbestos in buildings is highly regulated, and since 2004 regulations have included duties in relation to asbestos on those who control non-domestic premises.

Enquiry 8.3 (asking whether or not there is asbestos and whether any has been removed) is a starting point for the Buyer's information-gathering exercise relating to asbestos. The reply, whether positive or negative, does not absolve the Buyer of the duties it may have under the Regulations.

The duties on those who control non-domestic premises are now found in Regulation 4 of the Control of Asbestos Regulations 2012. Failure to comply with these duties is a criminal offence and penalties can be severe.

Non-domestic premises are not defined in the Regulations, but the Health and Safety Executive takes a broad approach and considers that they include certain parts of blocks of flats, houses that have been converted into flats, and flats over shops.

Regulation 4 requires the dutyholder to assess whether asbestos is present or liable to be present and, if so, to determine the risk from that asbestos and to manage that risk. The dutyholder must also prepare a written plan for managing the risk and ensure that all measures specified in the written plan are implemented and recorded. The assessment and the plan must be reviewed at regular intervals and at any time when there has been a significant change in the premises to which they relate.

A dutyholder is a person who has some contractual responsibility (for example under a tenancy) for the maintenance or repair of the premises, or, in the absence of contractual responsibility, can exercise some control over access to and from the premises.

There may be more than one dutyholder in relation to particular premises, in which case each dutyholder's duties are determined by the nature and extent of the maintenance and repair obligations that it has. There is also a duty to co-operate with each dutyholder so far as necessary to enable a dutyholder to comply with its duties.

The Buyer will not be liable for any failure of the Seller to comply with its duties under Regulation 4, but, equally, the Buyer cannot rely on the risk assessments, written plans or any steps taken by the Seller. If the Buyer becomes a dutyholder following completion (and in many cases it will), it will have to carry out its own assessment after completion and otherwise comply with the duties in Regulation 4.

The information and documents requested by Enquires 8.4 and 8.5 should therefore be regarded as no more than a starting point for the Buyer. The value and use of the information and documents will depend on the nature of the Transaction (freehold or leasehold, investment or vacant possession) and on the Buyer's plans for the Property (in particular whether it plans to carry out any works at the Property).

There is more information on asbestos and the duties under Regulation 4 on the Health and Safety Executive's website.

A particular substance on its own or used in a particular manner in a building may present no risk and no problems, but used in a different way, or in conjunction with another material, may be or become unstable or hazardous. In recognition of this, Good Practice in the Selection of Construction Materials was published in 1997 by Ove Arup & Partners, the British Council of Offices and the British Property Federation; an updated edition was published by the British Council for Offices in 2011. Enquiry 8.6 adopts the approach taken in this guide and does not, therefore, ask whether any of a long list of particular substances has been used at the Property but is, instead, concerned with the presence of substances (other than asbestos) which may potentially cause problems. Whether there is an actual problem will be a matter for appropriately qualified consultants, having regard to relevant legislation and codes of practice.

This enquiry is concerned with materials (other than asbestos) that have been removed from the Property. The Buyer's concern is that any removal of potentially hazardous or dangerous substances has been done in accordance with relevant legislation and codes of practice.

If the reply to this enquiry indicates that buildings have been erected on the Property or that any extensions or major alterations have been carried out within the previous 12 years, the Buyer may wish to raise further specific enquiries. To avoid delay the Seller may consider volunteering details and any relevant information without specifically being asked to do so.

"Plant and equipment" may include security, access and alarm systems, lifts, escalators, CCTV, building management systems, air conditioning and heating systems.

A maintenance report may take the form of answers to a formal questionnaire and, as well as maintenance, may cover repair, replacement, treatment or improvements. It may be the only practical source of information on these matters.

The Buyer will be interested in all guarantees, warranties and insurance policies under which it may be able to claim in the event of a defect.

It is particularly important that the parties agree whether fixed plant is to be removed on completion or is to remain in the Property. Fixed plant tends to be heavy, difficult to move and expensive and generally will play a significant part in the business or use of the Property. It may not be clear whether it should be treated as a fixture or a chattel, and any misunderstanding between the parties as to whether it stays in the Property on completion or is removed may have serious consequences.

Examples of third party claims which may affect items that the Seller is proposing to leave at the Property following completion include credit or conditional sale agreements, hire and hire purchase agreements, finance and leasing agreements. Some of these may contain title retention clauses, which would mean that the Seller does not own the item in question. In relation to such items there may be some overlap with enquiry 9.4.

Items which will remain in the Property but which will belong to a third party include telecommunication masts, advertising hoardings, metering equipment and street signs fixed to exterior walls.

Utilities and services may include:

Although usual for a property to be connected to mains utilities (such as water, drainage, gas and electricity), this is not always so. Also, there may be more than one source of the utility supply.

Water may come from a mains supply and a well or be drawn directly from a river or lake.

Electricity may come from a private generator instead of or in addition to the mains supply.

If Conduits do not run directly from a highway maintainable at public expense, details of the rights to use the Conduits should be given in reply to enquiry 3.

Some buildings with communal heating, or served by a district heating network, are subject to the Heat Network (Metering and Billing) Regulations 2014. It is useful for the Buyer to know this in advance as it has implications for billing and charging for heat and hot water services.. If the Seller has previously registered under those Regulations, the Buyer may need to raise further questions.

Although the Buyer will not generally be concerned to see supply contracts for mains utilities, it will need to see copies of all supply contracts and consents which either will continue to affect the Property after completion or which it may wish to take over. An example would be a water abstraction licence. Details of all contracts and licences are requested so that the Buyer can decide what may be of interest.

The Buyer may find the records useful, although they will not absolve the Buyer of its responsibilities under the Fire Safety Order 2005. The enquiry is phrased to refer to "any records" because:

Note that a fire risk assessment may not be a single document, but a collection of documents.

The solicitors acting for the Buyer are unlikely to want the documents themselves, particularly as the bundle is likely to be bulky. The enquiry has therefore been phrased to ask where the papers may be inspected.

This enquiry is aimed at establishing information about fire risk assessments and other information required to be recorded that relates to premises of which the Property forms a part. The information will be relevant for the Buyer who may, on completion, be responsible for co-ordinating fire precautions with others in any building that includes the Property.

It is possible that there are a number of "responsible persons" in respect of the Property. The Buyer may find that on completion it must co-operate and co-ordinate with others and may need to give others information. This enquiry is aimed at eliciting information as to what co-ordination and co-operation there is currently.

This information may be disclosed as part of the response to enquiry 11.1, but it is worth asking the question directly as in practical terms the means of fire escape is one of the most significant issues for the Buyer and for the Buyer's compliance with its duties under the Fire Safety Order 2005.

Particular attention will need to be given by the Buyer to any agreements that authorise use of the fire escapes:

The importance of establishing that building regulation consent was obtained, where required, and that works were carried out in accordance with the approved plans, was illustrated in Cottingham v Attey Bower & Jones [2000] EGCS 48 (ChD).

Building Regulations completion certificates were introduced into the Buildings Regulations in 1991. The production by the Seller of a completion certificate will be evidence (but not conclusive evidence) that works were carried out in accordance with Building Regulations. Building regulations approval or completion certificates are not necessary where the work can be self-certified as complying with the regulations.

Self-certification can be carried out by someone who is a member of a competent person scheme under the Building Act 1984. For information on the Competent Person Scheme, see DCLG: Competent Person Schemes

A planning permission must generally be implemented within three years from the date of its grant.

Established use certificates are no longer granted. Since 27 July, 1992, the equivalent is a certificate of lawfulness of existing use or development (CLEUD) or a certificate of lawfulness of proposed use or development (CLOPUD) (sections 191 and 192, Town and Country Planning Act 1990).

Existing established use certificates are still valid and can be relied upon, however, and so their existence is still relevant for the Buyer. There is a procedure for converting an established use certificate into a CLEUD. A CLEUD or a CLOPUD will establish that:

A use, an operation or a breach of condition or limitation will be lawful if:

The power to issue enforcement notices is subject to time limits (section 171B, Town and Country Planning Act 1990).

The existing buildings on the Property may be authorised by means of an express planning permission, or by a CLEUD or by virtue of the Town and Country Planning (Use Classes) Order 1987 (as amended) or the Town and Country Planning (General Permitted Development) Order 1995 (as amended).

The existing use of the Property may be authorised by means of an express planning permission, under a CLEUD or under the Town and Country Planning (Use Classes) Order 1987 (as amended) or the Town and Country Planning (General Permitted Development) Order 1995 (as amended).

The Property may have a single use or a single use with an ancillary use. Where one use is ancillary to another (for example, storage associated with a shop) a separate permission for the ancillary use will not generally be required.

It is possible for the Property to have more than one use where the further uses are not ancillary but are main uses in their own right as, for example, a shop at ground level with a flat above. Separate permissions are required for each main use but each main use may still have its own ancillary uses.

Where planning consent is required for a development (whether building works or a change of use), the local planning authority can take enforcement action if the development is carried out without planning consent.

The time limits for enforcement action are set out above. Where, however, a building is listed under the Planning (Listed Buildings and Conservation Areas) Act 1990, there is no time limit for enforcement action in respect of a breach.

A breach of listed building control can be enforced against an owner no matter when or by whom the breach was committed.

A practical problem may arise because when a property is listed, the listing may fail to record the state and extent of the listing, making it difficult for buyers, sellers and local authorities to establish whether any breach has occurred. Works that need to be considered include both internal and external works to any buildings, and also works within the curtilage of the building.

Third parties may challenge the grant of a consent or a certificate either by judicial review or by appeal in the courts under procedures provided in the Planning Acts.

Outline planning permissions are permissions for the construction of a building that are granted in principle, subject to certain "reserved matters". The outline planning permission cannot be implemented until the reserved matters have been approved.

Many planning permissions come with conditions such as a time limit for implementation, restrictions on use of the newly developed property or requirements for landscaping and the like.

In addition, every planning permission granted in England pursuant to an application lodged on or after 12th February 2024 is deemed to be subject to a condition that development may not be begun unless a "biodiversity gain plan" (see below) has been submitted to and approved by the local planning authority. The commencement date for "small sites" and certain other properties is slightly later: 2nd April 2024. Householder applications are exempt.

A biodiversity gain plan sets out how the developer intends to achieve a biodiversity net gain of at least 10%, either on-site, off-site or by the purchase of statutory credits. For more details, see Biodiversity net gain on developments under the Town and Country Planning Act 1990 (Practical Law).

The relevant legislation is schedule 7A to the Town and Country Planning Act 1990, as inserted by section 98 of and schedule 14 to the Environment Act 2021. Separate arrangements apply in Wales.

Enquiry 12.12 refers to any planning permission with conditions which need to be satisfied for development to proceed, and asks what has been done to satisfy such conditions. By checking the date when a planning application was lodged, the buyer can work out whether the permission is deemed to be subject to a biodiversity net gain condition. Some planning authorities may insert an express condition.

The response to enquiry 12.12 is a suitable place for the seller to provide a copy of its biodiversity gain plan and to confirm whether the planning authority has approved this.

Section 171BA of the Town and Country Planning Act 1990 (inserted by the Localism Act 2011) enables local planning authorities in England to apply to the magistrates’ court for a planning enforcement order within six months of the date of the authority becoming aware of evidence of an apparent breach of planning control. This will enable the authority to enforce certain breaches of planning control outside the normal planning enforcement periods. The order will only be made if the court is satisfied, on the balance of probabilities, that the breach of planning control has to any extent been deliberately concealed, and that it is just in the circumstances to make the order. Once the order is made, the order establishes a twelve month enforcement period.

The purpose of this enquiry is to create an “audit trail” that might help persuade a court, should a concealed breach be discovered that occurred in the past, that the current owner was innocent of it and, therefore, ought not to be the subject of a planning enforcement order.

Part 5 of the Localism Act 2011 contains provisions relating to 'assets of community value'. They enable local authorities to list buildings and land as assets of community value, and give community groups a window of opportunity to bid for such assets when they come up for sale. The Assets of Community Value (England) Regulations 2012 brought these provisions into force on 21 September 2012 for properties in England only. They are not yet in force in Wales (as at 1 December 2023) and there is no indication of whether they will ever be.

Local authorities must maintain a 'list of assets of community value'. A building or other land will be land of community value if the local authority decides in its absolute discretion that

Buildings or other land that ‘in the recent past’ had a use that furthered the social wellbeing or social interest of the local community will also qualify if it is realistic to think that this kind of use could be resumed in the next five years.

The very wide definition gives local authorities a broad discretion to list buildings with a wide range of uses. Examples may include village shops, local pubs, community centres, old town halls, libraries, swimming pools and markets. Certain types of land may be exempted by regulations.

A listing is triggered by a community nomination. A community nomination can be made by a parish council (in England), community council (in Wales) and ‘a person that is a voluntary or community body with a local connection’ .

If the local authority decides the nominated asset meets the criteria it must accept the nomination and add it to the list. It must also give notice of land’s inclusion in the list to the owner, occupier and person who made the nomination. There will be an eight week period after listing for owners to challenge the decision by way of a review by the Local Authority and then by way of appeal to a First-tier tribunal.

Land is automatically removed five years after it was first listed . Community groups wishing to protect land can make a fresh nomination after the expiry of the five year period. Unless they do so the owner of the asset can sell free of the restrictions.

The rules affect a ‘relevant disposal’ which is:

However such a disposal will only be a 'relevant disposal' where it gives the buyer vacant possession. A relevant disposal occurs when it takes place but if it is pursuant to a binding agreement to dispose it will be when the parties become contractually bound. The Act exempts certain transactions, such as gifts, disposals to family members or by personal representatives, business transfers as a going concern or disposals between connected companies. The regulations also exempt disposals in pursuance of a planning obligation, an option or pre-emption right made before the land was listed, and disposals by a mortgagee under a power of sale.

An owner wishing to enter into a relevant disposal must:

During the Full Moratorium Period a disposal may take place only to the community interest group (at a price agreed between the parties). However the owner is not obliged to accept the bid.

If a bid has not been received during the Full Moratorium Period, or if it is not accepted, then for the remainder of an 18 month period starting with the initial notice given by the owner (the Protected Period), the owner can dispose of the listed asset on the open market. The owner will therefore have 12 months in which to dispose of the asset freely, before the moratorium process restarts.

After the Protected Period has passed, the moratorium process will need to be repeated and each of the relevant conditions satisfied before a sale to a third party can take place.

The moratorium periods and the protected period run from the date the local authority receives notice of the intended disposal.

Examples of the types of agreement to which this enquiry relates include:

This enquiry covers, for example, obligations on the Seller to enter into any highway, water or sewerage agreements or a section 106 planning agreement. For matters relating to the community infrastructure levy, see enquiry 22.

Examples of what might be included in the reply to this enquiry include a road closure order, a diversion order, a traffic flow order which, if implemented, might affect access to the Property or the ability to park near or deliver to the Property or a food hygiene order, of particular relevance if the Property is a restaurant or hotel.

If the Seller is aware of anything which is not yet, but will be, registered it should be disclosed here, unless already mentioned in reply to enquiry 13.1.

There are some matters which are not required to be registered as a local land charge, for example, planning contravention notices and notices of intention to adopt a highway.

The local authority or other public or private bodies, such as the Homes and Communities Agency, can make financial grants. These are generally made to promote development and improvement and may be subject to repayment obligations in certain circumstances.

The Buyer needs to know what grants have been made, by whom, for how much and the terms of the grant and in particular will need to know about repayment obligations so that appropriate provisions can be made in the contract.

The Seller may have received compensation for such matters as:

The enquiry is wide and addresses all legislation that may affect the Property. Depending on the nature of the Property and its use, particular consideration should be given to the Occupiers' Liability Acts 1957 and 1984, the Defective Premises Act 1972, health and safety legislation (including the Shops Act 1950, the Factories Acts, the Offices, Shops and Railway Premises Act 1963 and the Health and Safety at Work etc. Act 1974), and liquor and gambling licensing.

To the extent not covered elsewhere, the reply should cover breaches of building regulations, breaches of fire regulations, gas safety legislation, highway and drainage obligations, section 106 agreements, planning control, waste storage and management, hazardous substances, advertising control, bye-laws relating to trading and advertisement control.

This enquiry is not limited to statutory matters. It does not cover works to be carried out to anything other than the Property and so will not include section 38 highway agreements or section 106 agreements unless the land over which the works are to be carried out is included within the definition of the Property.

This enquiry is designed to catch such things as liquor licences, betting and gaming licences, water abstraction licences and any other activity controlled by law.

Replies to this enquiry may be affected by the Construction (Design and Management) Regulations in 1994, 2007 or 2015 (referred to in this note as CDM 1994, CDM 2007 and CDM 2015).

CDM 1994 applied to all construction work carried out between 31 March 1995 and 5 April 2007 (with a few exceptions including small projects where the number of people working on the project at any one time was not expected to exceed four and the project was not expected to last longer than 30 days).

CDM 2007 replaced CDM 1994 from 6 April 2007. They covered all construction work, including small projects. There were limited exceptions relating to mineral extraction works and transitional provisions for construction projects that were started under CDM 1994 and continued under CDM 2007. The last of these transitional provisions came to an end on 5 April 2012. Under CDM 2007 the definition of "construction work" was extended to include

CDM 2015 replaced CDM 2007 from 6 April 2015. They cover a very similar range of construction work and impose similar duties to keep a Health and Safety file for the Property (though they exempt small projects with a sole contractor). Transitional provisions apply for 6 months.

A complete Health and Safety file for the Property should contain all health and safety related information necessary for the proper maintenance, repair, alteration, decoration and demolition of the Property. The Buyer needs the information requested as it could have an impact on the Buyer's ability to carry out works or method of doing works or on the value of the Property and its marketability.

If the Health and Safety file will not be handed over at completion (for example, where it is retained by the occupational tenant of whole), the Buyer must ensure there are arrangements to allow it to access the original. Under CDM 1994, a Health and Safety file was required for each "structure" forming part of a project. CDM 2007 and 2015 allow a single Health and Safety file to relate to more than one building. The file may be physical or electronic.

This enquiry requests confirmation that any Health and Safety file has been compiled and maintained in accordance with the relevant CDM regulations. This is because the Health and Safety file may have been compiled when the works were done and no new works have been carried out since, so the file contents are to be judged by the standards set out in the historic version of the CDM regulations. Most Health and Safety files are constantly updated as new construction works are carried out.

An Energy Performance Certificate (EPC) is a certificate containing information about the energy efficiency of a building. The EPC is produced by the seller or landlord or developer and must be accompanied by a recommendation report containing suggestions for the improvement of the energy performance of the building.

The obligation to produce EPCs is contained in the Energy Performance of Buildings (England and Wales) Regulations 2012 (EPB Regulations 2012).

EPCs are required when a building is constructed, sold or rented out. There are several types of building and transaction (for example, lease renewals or extensions, lease surrenders) which are exempt from the need to provide an EPC.

The seller or landlord is required to provide the prospective buyer or tenant with a valid EPC and a recommendation report, free of charge, at the "earliest opportunity" and by no later than whichever of the following actions first takes place:

The seller or landlord must ensure that the ultimate buyer or tenant has received a valid EPC. A copy of a valid EPC is sufficient, and an electronic copy is permissible if the recipient consents to receiving the certificate electronically.

The obligation to provide an EPC does not apply if the seller or landlord has reasonable grounds to believe that a prospective buyer or tenant:

In addition, before marketing a property, the seller or landlord must ensure that it either has an EPC or has commissioned an EPC for the property. The seller or landlord must use all reasonable endeavours to ensure that an EPC is obtained within 7 days of marketing (although there is an additional 21 day period during which the EPC can be obtained, if it is not obtained during the initial 7 day period).

A developer is required to produce an EPC when a new building is erected or where an existing building is converted into fewer or more units and the services (for example, the heating, hot water or air-conditioning systems) in the building are modified. Unless an EPC and recommendation report have been given to the owner of the building by the developer, the building control inspector cannot issue a completion certificate for the works.

Certain buildings are not subject to the Building Regulations 2010, but are still within the scope of the EPB Regulations 2012. In such cases, the person who carries out the construction work must give the owner of the building an EPC and recommendation report within five days of completing the construction work.

The general rule is that an EPC is valid for ten years from the date on which it was issued. It will be revoked if a new EPC is issued for the same building. Where there is a valid EPC of the whole building, a later EPC of part will not invalidate the existing EPC of whole and vice versa.

For example, on a sale of the whole building the original EPC remains valid, but on a letting of the part for which a new EPC has been produced, the new EPC is the relevant document.

EPCs and recommendations reports must be lodged by the energy assessor who produced them on the central EPC Register operated by the government. Subject to certain exceptions, data which is legally required to be included in an EPC can be accessed, free of charge, via this register. This will include a property's energy efficiency rating and recommendations made by the energy assessor.

Enquiry 14.8 covers the minimum information that buyers need and cannot get from the public register. Whether or not the seller has registered an exemption, it is likely that a new landlord would have to claim its own exemption and register afresh. Nevertheless, this enquiry should prompt disclosure of relevant information, and the buyer is free to request additional details such as any assumptions made in producing a borderline EPC.

The EPB Regulations 2012 require 5-yearly air-conditioning inspections, which are intended to promote the improvement of the energy performance of buildings in England and Wales. This requirement was first introduced in the 2007 version of the EPB Regulations.

Where a system was in service before 1 January 2008, then if the system has an output of over 250kW, the first inspection must take place by 4 January 2009, and if the system has an output of over 12kW by 4 January 2011. Where a system was first brought into service on or after 1 January 2008, the inspection must be carried out within five years of when it was first put into service. After the first inspection, systems must be inspected at five yearly intervals.

From 6 April 2012, the energy assessor who carries out the inspection must lodge a report of the inspection on the central EPC Register which is operated by Landmark Information Group for the Government.

The Department for Communities and Local Government has published guidance on the duty to have air-conditioning systems inspected: DCLG: A guide to air conditioning inspections for buildings (December 2012) This guidance is aimed at anyone who manages or controls air-conditioning plant and includes information on:

This asks whether the building counts as "higher-risk". If the answer is no, then the rest of enquiry 15 need not be answered. If the building is a mixed-use building and any sections of the building count as a higher-risk building, you should answer yes even if the property is in a section of the building that is not treated as a higher-risk building.

If the answer is yes, then enquiries 15.2 to 15.7 must be answered, unless the property is in a section of the building that is not treated as a higher-risk building in which case only enquiries 15.2 and 15.3 must be answered.

Asks who is the accountable person or persons. If the property is in a section of a building that is not treated as a higher-risk building, give details of the accountable person(s) for those sections of the building that are treated as a higher-risk buildings. The buyer will need to know their identity to comply with its own obligations under the Regulatory Reform (Fire Safety) Order 2005 which requires the "responsible person" for fire safety to co-ordinate and co-operate with the accountable person(s) under the Building Safety Act.

Asks if the seller is aware of any breach of the Building Safety Act. There is a slight overlap here with existing enquiry 14.1 on general statutory compliance, but it is thought necessary to focus attention on this Act.

Asks about the entry relating to the building in the statutory register introduced by the Building Safety Act.

Requires a copy of the most recent building assessment certificate.

Refers to safety case reports, prescribed information and documents, the residents’ engagement strategy, any relevant complaints, contravention notices and outstanding requests to enter. All these terms are defined in the Act: see the section numbers set out in each line of this enquiry.

This requests details of a senior individual within the seller's organisation who can provide more detailed information concerning the Building Safety Act. This enquiry mirrors the approach taken by earlier editions of the CPSEs in relation to the CRC scheme, now repealed. Where information is provided via this direct route, sellers and buyers should consider whether the sale contract provisions will (or should) allow for a claim in misrepresentation if any information so provided turns out to be incorrect. It may be appropriate to itemise specific pieces of information on which the buyer is to rely, other aspects being excluded from any misrepresentation claim.

Enquiries 15.1-15.7 were introduced in version 4.0 of CPSE.1 following the passing of the Building Safety Act. To keep the new enquiries to a manageable length, the editors bore in mind that many existing enquiries in earlier versions of CPSE.1 were already apt to cover compliance with the Act. For example, enquiries 8.1 (defects), 8.6 (hazardous substances), 11 (fire safety), 14.1 (statutory requirements), 14.2 (notices requiring works to be carried out), 20 (previously 19 – all notices given or received) and 21 (previously 20 – any disputes). These questions do not need to be repeated again in enquiry 15 for the specific purposes of the Building Safety Act.

Some key issues for the buyer to consider. It should not be necessary for the buyer to put these questions to the seller as additional enquiries. The points listed below should emerge from proper responses to enquiry 15 and other relevant CPSEs, such as those covering physical condition, statutory requirements and notices.

If any authorisations are disclosed then the Buyer should consider asking for confirmation that:

It is for the Buyer to satisfy itself that any authorisations will be sufficient for the Buyer's proposed use of the Property.

This enquiry focuses on whether the Property has been subject to potentially contaminative uses or whether there is any hazardous material in the Property. It has been deliberately framed widely to avoid the Seller having to form a view on whether or not information given is indicative of a contaminative use.

The reply should cover both statutory notices and complaints from neighbours.

The enquiry does not expressly ask for sight of waste transfer notes (which have to be provided to anyone disposing of waste and which might be numerous) but if there were a concern as to whether waste was being disposed of properly, these could be requested.

The reply to this should reveal matters such as migrating contamination both from and to the Property, dust, noise and other forms of nuisance

Where the Seller is a company, firm or partnership or some other corporate body, the Seller is not required to give the names of all shareholders, partners or employees but should give details of any other body in occupation including a company in the same group.

The Seller should explain whether occupation is by virtue of lease or licence or whether there is no formal right to occupy, in which case the Seller should give details of the length of occupation, any payments received in respect of it and any objections made to it.

Whether the Property is vacant, and the period during which it has been vacant, may be relevant for a number of reasons. For example, it may have an impact on the validity of insurance cover, affect liability to pay business rates and may put the Buyer on notice that squatters may be in occupation.

The purpose of TUPE is to protect the jobs and terms and conditions of employment of employees where the undertaking by, or in respect of which, they are employed is transferred. TUPE applies to any transaction considered to be the transfer of an economic entity and can include the transfer of premises as part of a business sale and transfers of investment properties such as shopping centres or office buildings.

TUPE also applies to where a client engages a contractor to do work on the client's behalf, and the client then reassigns the contract or brings the work "in-house" (a "service provision change").

For TUPE to apply to service provision changes, there must have been an organised grouping of employees before the change whose principal purpose was to carry on services for the client. It is expressly stated that the grouping of employees may be only one employee.

TUPE applies to staff employed in respect of the business or property which is being sold or the service which is to be provided by a new supplier. It extends to managers, managing agents, caretakers, cleaners, maintenance staff and security guards employed in respect of buildings which may otherwise be empty.

All employees employed in the undertaking or service automatically transfer to the Buyer on their existing terms and conditions (save for pension schemes) and their employment is treated as being continuous for purposes of all statutory claims including redundancy and unfair dismissal. Any dismissals connected with the transfer are considered to be automatically unfair.

Under TUPE, the Buyer takes on all rights, liabilities and responsibilities for anything done by the Seller in respect of the transferring employees and may therefore inherit liability for unfair dismissals, claims in relation to any form of discrimination and any failure to pay wages or bonuses which arise before the time of the transfer.

TUPE imposes obligations on both the seller and the buyer to inform and consult with appropriate representatives of any affected employees.

TUPE also requires the seller to provide the buyer with certain information (the "Employee Liability Information", see regulation 11 of TUPE) about the transferring employees, including their identity. If the seller provides any further information about the transferring employees it should omit names and other identifying details such as job titles. This is to ensure compliance with the Employment Practices Code issued by the Information Commissioner to take account of the obligations under the Data Protection Act 1998 (see Information Commissioner: Employment Practices Code).

The types of insurance referred to here may include public liability and employers' liability insurance and insurance for specific items of machinery or equipment.

Circumstances which may make the policy void or voidable include non-payment of premiums and failure to give all relevant information to the insurance company.

The rateable value of the Property is the open market rental value attributed to it for the purpose of calculating business rates payable on it. This information will be on the rating assessment of the Property and on the rate demands received from the local authority but can also be obtained from the local authority.

Whether or not the Property is separately assessed is important because if it is assessed as part of other premises that are not included in the Transaction, it may have to be reassessed following completion of the Transaction.

Rateable values on local rating lists are revised every five years, most recently on 1 April 2010 (using 1 April 2008 as the revaluation date).

Valuation officers may serve notice on an occupier or owner of a property requiring information about that property. Any correspondence passing between the owner or occupiers of the property and the valuation officer regarding a revaluation should be disclosed in response to this enquiry, including copies of all relevant proposals, notices, returns and appeals.

The rateable value of a property may be revised at any time due to a material change in circumstances. An owner or occupier of a property can at any time apply to the valuation officer requesting an alteration to the rateable value shown in the rating list or an alteration to any other statement made in the rating list about the property.

The valuation officer may also propose an alteration if there have been any alterations or improvement works, works to extend or enlarge the property or a change of use of the property. Copies of all relevant correspondence and documentation should be produced including all proposals, notices, returns and appeals.

The amount payable for business rates, water rates, sewerage and drainage charges can be obtained from the local authority and the water company.

If the Property forms part of other premises for which there is only one assessment for business rates and for water, sewerage and drainage rates, that fact should be disclosed in this reply.

Local authorities and water companies have a financial year that runs from 1 April each year. Accordingly, reference to the current year in this enquiry will mean the financial year that started on the most recent 1 April.

If a property is vacant, the owner or occupier may be entitled to 100% empty rate relief for a period of three months (or six months if industrial or warehouse property) following the date on which the property becomes vacant. Subject to various exceptions, full rates again become payable at the end of that period.

If the property has been left vacant for any period and empty rate relief has been claimed, full details should be provided.

If the property is currently vacant, the date on which the property was vacated should also be provided.

Exemptions from business rates include agricultural land, places of worship and parks. There are several others.

Transitional charging arrangements are concerned with phasing in new rates bills when they are significantly above or below the previous year's bills.

Examples of the types of periodic charges envisaged by this enquiry include payments in respect of private water supplies, private access routes to the Property and rentcharges. The reply is not expected to include details of rent and service charges payable under a lease of the Property.

Rateable occupiers of businesses in an area (which could be a business or retail district, a particular street, centre, arcade or other clearly defined area), can choose to have their area defined as a Business Improvement District (BID).

Where an area has been designated as a BID, the local authority and the business occupiers work together to provide additional services for the area, principally funded by an additional levy on the rates bill.

In addition, property owners who are not rateable occupiers can contribute on a voluntary or contractual basis to the funding of the BID. Most BIDs will be established through a separate BID organisation formed by the rateable occupiers. This will usually be a company limited by guarantee. If there is a BID organisation, the Seller may be a member of that organisation. Even if the Seller is not a rateable occupier, it may have participated in the process of creating the BID and become a member of the BID organisation.

The Buyer will need details of the BID organisation for management purposes and the Buyer may want to become a member of that organisation so that it can participate actively in the improvements to the area covered by the BID. The Buyer will want to know the amount of the BID levy payable in respect of the property. Even if the Buyer is not the rateable occupier, it would become responsible for the levy if the Property becomes vacant.

Owners of property who are not the rateable occupiers may have been involved in the BID process and agreed on a voluntary or contractual basis to provide additional funding for the BID. Where the contributions are made on a contractual basis, the Seller may have agreed to ensure that its successors in title enter into new arrangements with the BID organisation to continue to fund the BID.

Where the Seller is a landlord it may have agreed with its tenants to be liable for the whole or part of the BID levy payable by the tenants (who will be the rateable occupiers) as an incentive for the tenants to support the BID proposal. If the Property is not currently in a BID area, the Buyer will want to know if there are any proposals for the area to become a BID.

Most planning permissions granted after a charging schedule has come into force will be subject to CIL when development commences pursuant to that planning permission. Where a planning permission granted before a charging schedule came into force is varied under section 73 Town and Country Planning Act 1990 after a charging schedule has come into force, the new planning permission will be subject to CIL.

Certain developments may be carried out without planning permission if carried out pursuant to a general or local development order, within an enterprise zone or a simplified planning zone or there is deemed planning permission under section 90 Town and Country Planning Act 1990 (development with Government authorisation). Such developments may be subject to CIL if commenced when a charging schedule is in force. For developments carried out pursuant to a general or local development order or within an enterprise zone, no liability to CIL will arise if the development commences before 6 April 2013.

Unless another person has assumed liability for the payment of CIL, any CIL liability will be apportioned among those persons having a material interest in the land at the commencement of the development. A material interest in land is either a freehold title or a leasehold title for a term that expires more than seven years following the date on which planning permission first permits development. It is thought that liability for CIL is intended to run with the land (although this point is not yet certain), so the buyer will need to know of any CIL liability that it may inherit.

A charging authority may accept payments of land (including existing buildings or structures) as an alternative to cash to meet a CIL liability where certain conditions are met.

If there are undetermined planning applications and there is no charging schedule in force, the buyer should also investigate whether there is any prospect of a charging schedule coming into force before the date on which any planning permission is granted pursuant to that application.

A person other than the land owner can assume liability for the payment of the CIL by the submission of an “assumption liability notice”.

Assumption of liability for CIL can be withdrawn at any time before development commences. If the development has commenced, the liability for CIL may be transferred to another person so long as the deadline for the final payment of CIL has not been reached. If liability is withdrawn before development commences, it reverts to those persons having a material interest in the land when the development commences.

The amount of CIL payable on the overall floor space of a development can be reduced if, on the date that planning permission first permits the chargeable development, there are existing buildings on the site that are to be demolished as part of the development. In order for this discount to apply, such buildings have to have been in continuous lawful use for six months within the period of three years before the planning permission to which the CIL liability attaches first permitted the development.

In order for the discount referred to in 22.8 above to apply, the buildings that are to be demolished prior to completion of the chargeable development must be existing on the relevant land at the date that planning permission first permits the chargeable development (which will normally be at the point when all pre-commencement conditions attached to the planning permission have been satisfied).

Where a relief has been claimed in respect of CIL liability, the relevant authority can recover the CIL that was subject to the relief if a disqualifying event occurs within seven years.

The grant of a lease on or after 1 December 2003 is a land transaction for SDLT purposes unless the lease was granted pursuant to an agreement for lease exchanged on or before 10 July 2003 which has not been subsequently assigned or varied.

The grant of a lease may be notifiable to HMRC for SDLT purposes.

Before 12 March 2008, the grant of a lease was notifiable to HMRC if:

(a) the term was for seven years or more and was granted for chargeable consideration, regardless of whether any SDLT was payable; or

(b) SDLT was payable on the grant of the lease or would have been payable but for any SDLT relief claimed by the tenant.

If the grant of a lease with an effective date before 12 March 2008 was not notifiable to HMRC, a self-certification certificate may have been produced to enable the registration at the Land Registry of any easements granted to the tenant under the lease.

Changes to the notification thresholds were announced in the 2007 Pre-Budget Report, confirmed in the 2008 Budget and provided for in section 94 of, and Schedule 30 to, the Finance Act 2008. The changes will have retrospective effect and mean that:

A. The grant of a lease for a term of seven years or more is not notifiable and does not require a land transaction return if:

B. The grant of a lease for a term of less than seven years is not notifiable and does not require a land transaction return if:

C. The assignment of a lease that was granted for seven years or more is not notifiable and does not require a land transaction return if:

D. The assignment of a lease that was granted for less than seven years is not notifiable and does not require a land transaction return if the chargeable consideration for the assignment or surrender does not exceed the zero rate threshold (meaning that it does not consist of or include any amount in respect of which tax is chargeable at 1% or more or any amount in respect of which tax would be chargeable but for a relief).

Subsequent events under the lease may give rise to a further obligation to notify HMRC of a land transaction. Examples include:

(a) the variation of the lease that creates a surrender and regrant or which increases the rent payable under the lease;

(b) the settlement or determination of a rent review during the first five years of the term (disregarding rent reviews by reference to the Retail Prices Index);

(c) any contingent, uncertain or unascertained rents payable during the first five years of the term becoming payable, certain or ascertained; and

(d) the first assignment of a lease that is not itself exempt from SDLT where certain SDLT reliefs were claimed on the grant of the lease (see the notes for enquiry 24.3 below).

The Buyer will need to know the date of the grant of the lease for SDLT purposes. This is:

(a) the actual date of grant unless certain SDLT reliefs were claimed on the grant of the lease (see the notes for enquiry 24.3 below);

(b) if the original grant was exempt under one of those reliefs, the date of the deemed grant of a lease where a non-exempt assignment has followed the original exempt grant.

The Buyer will need to ensure that all SDLT payable on the lease has been paid and retain evidence that shows the total amount that has been paid. This is because the Buyer will be responsible for the payment of any future SDLT due and, where that future transaction is linked to the grant of the original lease, the extent of the Buyer’s liability to SDLT (if any) may depend on the amount of SDLT already paid.

If SDLT was not payable on the grant of the lease or the grant of the lease was not notifiable, the Buyer will need to know this as subsequent events under the terms of the lease may bring the original grant of the lease within the requirements for notification and the payment of SDLT: for example, where the lease comes to an end and the Buyer remains in occupation of the Property.

For the purposes of any additional land transaction returns that need to be made, the Buyer will need to know the "effective date" of the lease. This will be the earlier of the date of actual completion of the lease and, if there was a preceding agreement for lease, the date of substantial performance of that agreement, for example the date the Buyer was given occupation of the premises.

This enquiry is relevant where a lease is assigned during the first five years of the term and the grant of the lease was a land transaction for the purposes of SDLT. It applies also on the assignment of a lease where a previous assignment of the lease has resulted in the deemed grant of a new lease (see the notes for enquiry 24.3 below).

For the purposes of SDLT, the tenant of a lease may be under an obligation to make two land transaction returns where any of the following conditions apply:

(a) there is a rent review during the first five years of the term, excluding for these purposes any RPI rent reviews;

(b) there is any other mechanism in the lease to vary the rent payable under that lease; or

(c) there are contingent, uncertain or unascertained rents payable, for example where there is a turnover rent.

Where any of these conditions apply, the tenant makes an initial land transaction return on the grant of the lease based on a reasonable estimate of the sums that will become payable and, if additional SDLT is payable or the transaction becomes notifiable, a further land transaction return at the end of the fifth year of the term or, where a rent review is agreed or determined before the end of the fifth year of the term or the mechanism for varying the rent is operated, on completion of the rent review or variation.

If the lease is assigned during the first five years of the term, the potential obligation to make the additional land transaction return passes to the Buyer. In order to make any additional land transaction return, the Buyer will need to know the highest amount of rent paid by the Seller in any consecutive twelve-month period.

These provisions apply equally where the lease was granted for a term of less than five years; for example they would apply to a turnover rent lease for a term of four years.

This enquiry is relevant where there has been the grant or assignment of a lease at a premium and the whole or any part of that premium is contingent, uncertain or unascertained. An adjustment to the Seller’s land transaction return may be required when the contingency occurs (or it is clear that it will not occur) or the amount of the premium becomes certain or ascertained.

On the assignment of a lease, the Buyer inherits the Seller’s obligation to make any additional land transaction return required once contingency occurs or the amount of the premium becomes certain or ascertained. The position is different if the Seller has made an application to defer payment as the obligation then remains with the Seller.

This enquiry is relevant where one of the following SDLT reliefs was claimed on the grant of the lease:

(a) sale and leaseback relief;

(b) group company, reconstruction or acquisition relief;

(c) transfers involving public bodies;

(d) charities relief; or

(e) any of the reliefs set out in The Stamp Duty Land Tax (Consequential Amendment of Enactments) Regulations 2003.

On the first assignment of the lease where one of these reliefs has been claimed on the grant of the lease, the assignment of the lease is treated as the deemed grant of a new lease from the Seller to the Buyer for the unexpired residue of the term of the original lease unless similar reliefs are claimed on the assignment.

If similar reliefs are claimed on the first assignment of the lease, the next assignment of the lease on which none of the relevant reliefs is claimed will be treated as the deemed grant of the new lease from the Seller to the Buyer.

Where the assignment of the lease is treated as the grant of a new lease, the Buyer will be under an obligation to pay SDLT based on the net present value of the deemed new lease.

HMRC has stated that these provisions do not apply if stamp duty, and not SDLT, applied on the grant of the lease and it was the corresponding stamp duty reliefs that were claimed on the grant of the lease.

Sufficient detail should be provided to enable the Buyer to satisfy itself on the treatment of the Transaction as a TOGC. This will include, for example, providing details of the following:

The availability of treatment as a TOGC can be affected by the Seller's circumstances or actions. For example TOGC treatment may not be available if:

If the Transaction is a TOGC, it is important to determine if the Property is a capital item for VAT purposes and is within its adjustment period. The Capital Goods Scheme adjustments are designed to ensure that the VAT reclaimed on the original cost of development or acquisition is adjusted over a three to ten year period (dependent upon the length of the interest held or acquired). This is done through clawbacks and it will be important for the Buyer to be aware of any clawback liability.

"Structures and Buildings Allowances" or SBAs are a relatively new form of capital allowances introduced by regulations made under section 30 Finance Act 2019 inserting a new Part 2A in the Capital Allowances Act 2001.

SBAs are restricted to construction expenditure, incurred pursuant to a contract entered into on or after 29 October 2018, for structures and buildings used for prescribed business purposes only. From April 2020, the allowances give relief at 3% per annum on a straight-line basis for 33 and a third years (the rate was 2% pa until April 2020). Plant and machinery costs and land acquisition costs are not eligible.

Note that "Please rely on inspection" is NOT a suitable response to enquiry 33.10! Where SBAs are relevant, it may be appropriate for the respective advisers to communicate direct as envisaged by enquiry 33.11.