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GAZETTE
SEPTEMBER 1979
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.
G. v. AN BORD UCHTÁLA
Continued from page 210]
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.
211