PART 1

Law Society of Scotland's Guidance Notes 2003

1. Introduction

1.1 Solicitors should consider whether a coal mining search should be made in any particular transaction dealing with land in coal mining areas ("affected areas"), including purchase, mortgage, further advance or before any development takes place. If deemed necessary, it is recommended that the search be made before the conclusion of Missives or in appropriate cases that the Missives be made conditional on the report being satisfactory. For those Practitioners not using electronic means, the enquiry should be in the form approved by the Society ( ScotForm 2003 ) and the Coal Authority.

1.2 Solicitors are recommended to submit a plan of the property with every coal mining search. Plans should be marked with the full boundary of the property and not just the property building footprint or other lesser area. Solicitors should retain a copy of the search form and plan.

1.3 These Guidance Notes should be read in conjunction with the  Coal Authority´s Terms and Conditions 2003 and User Guide 2003 .

2. Preliminary Enquiries

2.1 If the property is in an affected area (see User Guide 2003, paragraph 2), it is suggested that a solicitor should, in addition to requesting a coal mining search from the Coal Authority, ask, as a preliminary enquiry of the seller, whether during the ownership of the seller or, to the seller’s knowledge, his predecessors in title, the property has sustained coal mining subsidence damage and if so how any claim was resolved (by repair or payment in respect of the cost of remedial, merged or redevelopment works or otherwise).

2.2 If the mining report discloses a current stop notice or the withholding of consent to a request for preventive works affecting the property it is recommended that the solicitor ask preliminary enquiries of the seller as to the present position.

3. Reproduction of Forms

3.1 It is important that both sides of the  ScotForm 2003 enquiry form are reproduced for retention and annexing to the reply when received. Solicitors are granted a non-exclusive licence to reproduce them. Any such form must follow precisely and in all respects the printed version.

3.2 The Coal Authority will reject any reproduction of the  ScotForm 2003 enquiry form which does not comply with these requirements.

4. Mining Surveys and Site Investigation

4.1 Disclosure of a disused mine shaft or adit in a mining report, the existence of recorded or possible unrecorded shallow coal workings and/or any other coal mining related hazard identified within the mining report, should be brought to the attention of the client. If further information or advice is required in addition to that available from the Coal Authority (e.g. further to that contained within a Coal Authority Interpretive Report ), then solicitors should in these circumstances explain to clients that there are experienced mining surveyors and structural engineers able to advise as to what further enquiries, surveys or investigation should be made.

4.2 If a lender is involved in the transaction, solicitors should establish that the surveyor or engineer selected is acceptable to the lender.

4.3 In most cases, but not all, the Coal Authority and not the adjacent surface landowner will own any shaft or adit. Clients should be advised accordingly and reminded that in these cases the permission of the Coal Authority must be sought before carrying out any works to locate, treat or in any other way interfere with former coal workings including disused coal mine shafts or adits.

5. Dealing with Lenders

5.1 If domestic property which is the subject of a coal mining search is to be charged as security for a loan, it is suggested that a copy of the mining report  should be sent to the lender as soon as received. Whether or not this is appropriate depends on depending on the result of the search and the lenders’ instructions. It is recommended that the solicitor should not comment substantively on the replies within the mining report but should recommend that they be referred to the lender’s valuer to review.

5.2 Provided that a copy of the mining report has been so provided solicitors are not obliged to make any other reference to the replies in any mining report on title to a lender except to refer to the existence of the search and the mining report.

5.3 The Royal Institution of Chartered Surveyors, the Council of Mortgage Lenders and the Association of British Insurers have been consulted with regard to these Guidance Notes in respect of, surveys of, loans granted on security of and insurance of, domestic properties in areas affected by coal mining and each such organisation has prepared separate guidance to its own members.

5.4 With regard to non-domestic property a similar procedure should be adopted. it is suggested that solicitors should, however, refer to the replies to the additional enquiries included in the mining reports for non-residential, commercial or development sites as these deal with legal matters (namely the withdrawal of support and the existence of working facilities orders).

5.5 When also acting for the lender it is suggested that solicitors should, in all cases, check whether the instructions from that lender require the solicitor to deal with the mining report in any other manner.  If so, it is suggested that the solicitor should explain the terms of this to the lender.  It is important that solicitors should not attempt to perform the function of the client's valuer or surveyor with regard to the mining report.

6. Implementation of ScotForm Enquiry Form 2003

6.1 The new form ScotForm (2003)  will be available by 30^th September 2003. The Coal Authority will continue to accept the  1998 form until 31^st December 2003.

6.2 ScotForm can also be used by Scottish solicitors in the event of them acting for client's purchasing property in England or Wales.

6.3 From 30^th September 2003, all mining reports requested from the Coal Authority will be prepared in accordance with the Society's Guidance 2003, the User Guide 2003 and the Authority's Terms and Conditions