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The Conveyancing Committee has received a number of queries from solicitors who are being asked by lending institutions to furnish opinions on compliance with planning permission, confirming that the dwelling in question has been completed in compliance with the relevant planning permissions. The factual situations in these cases vary, but the committee believes that it would be helpful to clarify the general position in relation to undertakings and certificates of title under the certificate-of-title system for residential properties, where stage payments are being advanced by lending institutions.

It is the committee’s view that a solicitor who has drawn down the first tranche of a mortgage loan on completion of the mortgage is only obliged to certify the title as of that date. The committee would point out, however, that such a certificate of title involves certifying that the planning title is in order at that date. If, in fact, there is no development on the property on that date, it will not be necessary to furnish an opinion on compliance. If any development has taken place, then, in order to certify the planning title, the solicitor should obtain an interim opinion on compliance with the planning permission as at the date of drawdown. Failure to obtain such an opinion will cast doubt on the validity of the certificate of title and render the solicitor at risk of having to provide a further certificate of title at a later date backed by an opinion on compliance with planning.

It is in situations where solicitors have not provided or cannot provide a certificate of title as of the date of drawdown, based on an appropriate opinion on compliance with planning, that they are being put under pressure to provide opinions on compliance at later stages of the development at times when there are difficulties in obtaining such opinions.