When “Not Aware” Isn’t Enough: Answering Your CPSE Enquiries

Following our hugely popular webinar, Responding to CPSE Enquiries – the Pitfalls, which attracted 3,500 registrants, Richard Snape, Head of Legal Training, joins host Lizzie Collin to answer the questions our audience most wanted addressed.

Commercial Property Standard Enquiries (CPSEs) are standard pre-contract forms prepared by the British Property Federation and used in UK commercial property transactions, requiring sellers or landlords to disclose key information about title, the property’s condition and liabilities to ensure transparency before exchange.

This Q&A-style episode tackles the practical and often contentious issues that arise when responding to CPSEs, including the risks of using “not aware” responses, whether sellers must highlight title defects in auction packs, and how far a seller’s duty of enquiry extends. The discussion also explores fire risk assessments, asbestos obligations, vacant properties, and the interaction between CPSE replies and potential misrepresentation liability.

The episode further examines recent Building Safety Act requirements, including higher-risk buildings, safety case reports, leaseholder deeds of certificate, and common misconceptions around listed buildings and EPC exemptions. Throughout, the focus remains firmly on risk management as a failure to respond correctly to CPSE Enquiries may result in a negligence claim.

Relevant cases:

First Tower Trustees v CDS (Superstores International) Limited [2018]
Sykes v Taylor-Rose [2004]

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking. 

This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

Lizzie Collin
Hello Richard.

Richard Snape
Hello, Lizzie. Cold day.

Lizzie Collin
It's a cold February day. It is indeed, and we're here to talk about.

Richard Snape
The day before my birthday, don't forget.

Lizzie Collin
Of course, yes. As you told me just before we hit record, it is your 40th birthday again tomorrow. So you've got that to look forward to. And we are returning to a topic from our webinar on the 12th of February, which is around responding to CPS enquiries. We had an inordinate amount of questions, so we've got some of those questions that we weren't able to answer to answer today for the podcast audience. So there's a lot to get through should we get stuck into the first question.

Richard Snape
OK.
Lizzie Collin

So the first question is, are you obliged to highlight answers which are unusual in bold, particularly for an auction sale?

Richard Snape
It's not particularly about CPS inquiries, but it's, I suspect, to referring to the case that we've we did a few years back in 2022. We mentioned in the podcast SBS Ground Works and Mahil. A strange sort of High Court decision, I think, almost certainly wrong, quite frankly, where the the property was subject to overage, which the successful bidder exchanged at the auction could have easily found out because they given every opportunity to look at the pack where they'd have seen that there was an overage. Need and and the official copies of the language he, you know, referred to deeds of covenant restrictions to protect the overage against third parties. But they said that overage was a a defect in title to the judge and judge it. You're bound to tell people about defects in title. And it's not enough to give them every opportunity to to try and find out. I I can't believe it's right. But I think that's what you have to do in auctions, just in case, you know, you got to assume it is right. So you have to sort of highlight the fact that any defects. And I think I've answered the question.

Lizzie Collin
Next question, would a response such as please do your own searches or surveys suffice?

Richard Snape
Yeah. I mean, as as long as you're not sort of committing yourself or in a matter of whether the the other side accepts that fact. If there are questions, which? And nothing really to do with law like sort of physical condition of the building and likes then I don't think they should be a part of the inquiries. Quite honestly, it should be down to caveat emptor. But if they're standard CPSES or additional inquiries which are legitimate, I I wouldn't accept that myself, but yeah. Mum depends on the nature of the inquiry. You can always say no, but it's just a question of whether the recipient accepts it.

Lizzie Collin
What about seller is not aware but seller has not made any enquiries in this regard.

Richard Snape
I mentioned in the course that not aware might be or not known might be taken as a representation. You've taken all reasonable steps to find out a reasonable person of your you know situation reasonable lawyer, a reasonable surveyor, a reasonable member of the public. I'd prefer just to drop, not aware. Myself not to not mention them.

Lizzie Collin
Where they say not to our knowledge, but rely on your own survey in CPSC which takes precedence, the representation or the limitation?

Richard Snape
You can't. Well, it's any any limitation of liability for misrepresentation? There's gotta be reasonable under Section 3 of the misrepresentation of 1967. And the case I mentioned, the first tower in CDs superstores could appeal. Said it's, you know, hard pressed to find situations where it would be reasonable. I just again dropped the not aware of it. Quite honestly, you you so it's not and it's it's not a limitation of liability to limit what you've you know your retainer with our new inspection or survey.

Lizzie Collin
Thank you. Yeah, another attendee asked. I understood that the CPS's implied that the person responding had made reasonable enquiries. Can we get around this by simply saying, but the seller has not made specific investigations in respect of this.

Richard Snape

Yeah, I mean, I think you probably could you. It's what we just said previously that you know, it's the implication is you've sort of if you say not aware you've made reasonable enquiries. But you can limit yourself. You know, our clients, not an expert. No investigations have been made. It's the clients filling in the CPS's, it's not there unless you're in house. It's not the solicitor or the the the surveyors.

Lizzie Collin
Does the seller have to notify of any asbestos in any sale of any property or would this be in the CPSE?

Richard Snape
It is in the CPSC inquiry, it's there's this whole list of things which, you know, have this been used and the likes them. So it would reference. You don't have to answer them. I say the exception might just be the one we started off with in an auction because it, but it's not really a defect in title though really, but. Uh. Of a property of a certain age, I'd want to see another best of risk assessment and any management plan. Quite honestly, if I was a purchaser. Certainly pre 2001 build or conversion I wouldn't accept it.

Lizzie Collin
And next set of questions are all around the fire risk safety risk assessment. So what if the property is vacant and secured whilst being sold? Surely there is no need for a fire risk assessment if there is appropriate detection and security.

Richard Snape
Well, I mean. Like just say that that's the value risk assessment. Quite honestly, you've got appropriate detection of the security, but they should have an empty property pending sale or pending being rented out. Let's assume the freeholder of the property you know is the the person who's about to sell or whatever, who is the the the duty. All the we're in control of the premises. They should have an asbestos risk assessment and it's just a. Matter of sorry. The fire 60 risk assessment and it's just a matter of what that with their you know, what you do for that fire risk assessment.

Lizzie Collin
I think the next question is a similar one. Again, if the property is vacant and no occupation, does it still need a? Fire risk assessment.

Richard Snape
Yeah, somebody still has, you know, control of that premises. It could affect your insurance. Still, you couldn't be prosecuted. But I I think the real risk for empty properties is what it does to your insurance. If you have another fire risk assessment, your insurance is going to be higher anyway. If it's, if it's long term empty and it might just be radiated.

Lizzie Collin
Yeah. Okie Dokie, next question, if your client instructs you to proceed without a fire safety risk assessment or asbestos survey as a potential criminal offence, does the proceeds of crime report need to be filed?

Richard Snape
I think I mentioned this in. The course I mean. This I've heard that argument years ago, and I I sort of, I sort of stood a bit on the fence in the course, but I don't think it does. I say people were talking about that in the past to be the proceeds of crime. It's gonna be criminal property. And criminal property is going to be property acquired through the benefit of the person's criminal conduct, and they know or should know, the fact it's criminal property. The fact that you have no risk assessment in relation to the premises doesn't make it criminal premises. So I I don't agree with that myself. But not everybody like. Say the same thing or be committing criminal offences all the time. If that was the case, yeah.

Lizzie Collin
Lots of reports would be filed. Is the tenant under an obligation to provide an asbestos survey if they are in occupation?

Richard Snape
The asbestos risk assessments, unlike fire safety, they latch on to who's responsible for repairing and maintenance. So you know, if the tenants responsible for repair and maintenance, which in the commercial property they probably are, they're the ones who should have an asbestos risk assessment and if the landlords responsible for repair and maintenance for the exterior in the common parts and collects service charge, they should. So it's the, the the, the persons responsible repairs under the lease.

Lizzie Collin
And what about new build properties? Why do they require an asbestos assessment and which common parts in a domestic building apply?

Richard Snape
Control of asbestos rigs 2012 don't distinguish between new builds. Properties. But the construction, design and management works should have a health and safety file, which basically says there's no asbestos amongst other. I think the residential inquiries, what's the L PE1? The residential management inquiries for residential common parts, they've probably got it right, but we grew as best as I think was banned in 1987 and Brown in 91 and they're totally different chemical substance than white. Which is. And the surveyors might contradict me. But the scene, as in talcum powder, and that was the year 2000. So the residential LP one say that if it was built or converted prior to 2000 or from 2000 after 2001, I think they say then, you know.

Richard Snape
No, you shouldn't bother with them, but otherwise you'd need an asbestos assessment and I. Think that's probably right. To the second part of the question about domestic premises. You know, common parts of flats in the legs being non domestic, it's not. Actually in the. Regulations. But there's been cases in the past. There was a case called the Westminster City Council. It was about health and safety regulations involving Westminster City Council. Back in the 1980s, select management, I think it was which said the non domestic premises include the common parts of dwellings and the guidance in the health and safety executives says that non domestic premises. And include the common parts of dwellings, and that's where it comes from. Well, the common parts are obviously things like foyers, vestibules, corridors and so on. But the suggestion that it could be further than that, sort of you know anything that's not part of the actual flat itself, you know you should have that best assessment in relation to the the sort of piping and the boiler system and this kind of stuff. That's where it's from.

Lizzie Collin
Thank you. Next question, they're quoting from the notes here. Likewise, they must pass on to such persons a copy of a leaseholder, deed of certificates within a week, and the question is, does this mean the landlord has to provide to the residents management company or right to manage copies of the completed deeds of certificates that it's received back from the leaseholders?

Richard Snape
The answer is this is about the Building Safety Act, and we've moved on from, from asbestos and fire safety. Yeah. I mean, it was changed in 2023. It wasn't the negligible provisions, but the regulations say that you have to provide within a week. Not just to other landlords in the block, but you have to provide the leaders difficult to like to manage companies, residence management companies and named managers, who people who haven't got an interest in the property, property rights in the property, but they are responsible for repairs and management and so on. But yeah, otherwise you might just lose the ability. To charge for qualifying least obvious service charge for works.

Lizzie Collin
Another one on the Building Safety Act, where do you measure the 11 metres from ground level or basement light? Well level or pavement level?

Richard Snape
It's invisible with with the regulations and the non statutory guidance. It's the lowest part of the ground level, but they don't deal with I think seen situations where you've got almost like a a trench between you know. The the lower floor if you like and then it it rises upwards and it's not really dealt with. Somebody did contact me on LinkedIn about that. And what did I think about it? And they said they were gonna litigate. But I'm not seeing anything since that was about a year ago. I'll have to contact him. They but yeah, it's the lowest point of the ground. Cool.

Lizzie Collin
And generally, a listed building was considered exempt, but you need formal exemption.

Richard Snape
Listed buildings, contrary to popular belief, are not exempt, and it's not the best drafted legislation. This is from energy performance certificates and the likes. You don't have to comply with any recommendations if it would unacceptably alter its character or appearance as a listed building. Well, that doesn't mean to say it's automatically exempt you. Know if you've got sort of. Sash windows or something holds sash windows, you know, and the suggestion was you can make it a higher rating by replacing them with upvc tertiary blazing. That would unacceptably altered. I would imagine your character, it says change all the light. Well, that's not going to unacceptably alter the character or appearance. So it's a strange one. They should almost have an assessment to find out whether the work should be done or could be done in the 1st place, but they're not exempt, no? Contrary to popular belief.

Lizzie Collin
How can you find out if the building is registered? And has a safety case.

Richard Snape
Thanks, report. I presume they went back to the Building Safety Act here. This is for higher risk buildings in England that need to be registered.

Lizzie Collin
Yeah.

Richard Snape
And and have, well, the safety case report has to be graded to the the regulator, the building safety regulator, within 28 days of a of a request not to register and not to provide the report of both criminal offence that this and so you should really have a safety case report up and running. You can look at the health and Safety Executive website and you can find out from that whether it's being registered or not. I mean most most properties have not had the the regulator call in the safety case report ready, but there should be one in place because you do get asked for it. There's no way you're going to provide it in 28 days if you haven't even started on. It's a hefty, hefty piece of documentation.

Lizzie Collin
Is it a risk to answer not applicable to the question? Is this a higher risk building when you're confident it's not a higher risk building but no assessment has been carried out by a surveyor to confirm that?

Richard Snape
If you're absolutely certain it's not 18 metres or seven or more stories in height, then it's it's not high risk building. It's in the margins that the problem is, you know, if you're dealing with a. Bungalow. I'll be pretty. You know, happy to say that this. Is not applicable. But it's in the margins because of some of the cases which are still up in the. Air in the government saying they're going to change the the highest building regulations. I'd be I'd be careful with the sort of as in some of the cases a six Storey with a roof terrace, that kind. Of thing. But if it's absolutely certain it's not, it's not anything close to seven stories or. 18 metres in the height, I think you can safely say that.

Lizzie Collin
And how long are CPSC's valid for?

Richard Snape
It doesn't tell you in the inquiries themselves, it's how long you want to rely on. Them for really. They, they they, they should be valid until the moment of of exchanging of of contracts. If you do exchange contracts. So if you go to stricter completion is when they should be valid for. And if circumstances change in the meantime, it does stay in the explanatory part of the at the beginning of the CPSC's that if circumstances change, you're gonna notify the changes to the recipient immediately. There's cases going back many years, but with a no flanigan. Which I think was in the 1930s. That said, basically of circumstances change, your duty bound to notify the changes without further request. But having said that, I think. I would if there's been a big gap between the CPS's being filled in and you've been about to exchange contracts and done properly as the purchaser wants and updates anyway. But it's that the sellers, if the circumstances change, the seller's gonna be reliable and misrepresentation. If they don't notify the changes. There's no set tone.

Lizzie Collin
Okie Dokie, thank you very much. Richard. I think that's as many questions as we can cover in one podcast, but I'm I'm sure there are a few that we haven't managed to answer, but that has been. A fair amount, I think.

Richard Snape
Yeah, probably the most we've ever had.

Lizzie Collin
Thank you very much.