In the Cheshire area it is well known that searches with the Brine Board are required on all properties. These searches include details of past damage claims affecting properties (including land) and identification as to whether the property lies within a statutory consultation area with regard to foundation designs.  A more significant aspect of the past claims is to report on whether the property has been subjected to a “commutation payment” whereby payments were made in lieu of carrying out repairs and rights of redress for future damage were often extinguished.

Following discussions and formal agreement with the Law Society it was agreed from October 2006 to extend the CON29M coal mining search to include details previously provided by the Board.

The guidance note states that a brine search should be made by solicitors when acting on the occasion of any dealing with land in brine subsidence areas including purchase, mortgage, further advance or before any development takes place.  The notes also point out that where a property is the subject of a pending brine claim, there is a need to complete a notice of purchase otherwise the purchaser’s rights could be adversely affected.  Where lenders are involved the guidance also requires a copy of the brine search to be sent to the lender as soon as received.  Within the Law Society’s user guide it states that property professionals agree that a brine subsidence search is essential for anyone buying or developing property in a brine pumping area.  At paragraph 1.5 of the user guide it is stated that for the purposes of the guide, users should be taken to include solicitors, licensed conveyancers, surveyors, valuers, estate agents, lenders, insurers and surface developers.  Section 3 of the user guide identifies the procedures for establishing locations where a brine search is required.  At paragraph 21.1 in regard to time validity it is stated that any report must not be relied upon in any event in excess of 90 days from its date of issue and must thereafter be verified by making a fresh search or by using any available update service.

It is therefore surprising that the number of brine searches being carried out has reduced from c.8,000 in 2007/8 to some 1,300 in 2013/14.  At first it was felt that the reduction in demand was associated with the 2008 recession but whilst there was a slight recovery in 2010/11 (c.4,300) the numbers have continued to almost halve each year.

It appears therefore that the professionals referred to at paragraph 1.5 of the Law Society’s user guide are not adhering to the advice to obtain a brine search and as such could be exposing themselves to a negligence claim.

At mosshaselhurst we are experts in local properties and carry out brine searches on behalf of our clients as one of our standard Conveyancing searches.