The cost of moving could in some transactions be reduced if more lawyers took time to consider planning and building regulation requirements more closely.
The knee jerk reaction by some to jump to the tune of indemnity indemnity insurers and take out unnecessary insurance is inexcusable. Often clients are asked to pay several hundred pounds for insurance which if the lawyer took more time to consider the case would not be required.
In this article I try and set out my thoughts on what lawyers should be thinking and doing when considering the planning and building regulations requirements of changes and additions to a property being purchased or sold by a client.
If you know about an alteration or addition to a property that has happened in the last four years or a change in use within the past 10 years the yes insist on seeing the planning. It's important to check the conditions if any to ensure there has been full compliance. If consent doesn't exist then indemnity insurance can be considered. Check with the lender if the client is purchasing with a mortgage since the lender may not depending on the circumstances be willing to lend.
However if changes have taken outside these periods ( 4 years where there is planning consent without conditions and 10 when there are conditions or change of use ) is it really necessary to push for sight of the planning consent. If you know the work was not concealed and the local search result shows no breach of condition is it really necessary to call for and par for indemnity insurance?
The Planning Act 1990 states that lack of consent for work completed over 4 years ago is unenforceable and there is immunity for breach of condition or change of use after 10 years. You should if acting for the buyer ask the seller to confirm that the work was not concealed as in the case of Welwyn Hatfield Council v. SSCLG [2010] EWCA Civ 26 & R. (Fidler) v. SSCLG - [2011] EWCA Civ 1159
Why waste money on indemnity insurance which is wholly unnecessary and only serves to put easy money into the pockets of indemnity insurers.
Turning now to building regulation approval. If the works were pre 1985 there is no need to worry if no approval or completion certificate exists. Local Authorities were not compelled to keep records until the advent of the Building Act 1984. So dont be tempted to take out insurance.
The Buildings Act 1984 was the first time that the Authority was required to keep records of Buildings Regulations.
If the works were carried out post 1985 and a Building Regulations Completion Certificate is revealed by your search there is no need to seek a copy unless you are unsure about what it covers.
If work was carried out in the past 12 months and there is no reference to it in the local search report then report to lender if purchasing with a mortgage and check with Valuer/Surveyor as to structural integrity of the alteration and the issues that arise if the client were to undertake additional works. In this situation always seek subject to the lender’s approval indemnity insurance because the Local Authority has rights to serve a Stop or Enforcement notice within 12 months under the Buildings Act 1984. Consider whether a retrospective certificate should be sought.
If work undertaken more than 12 months ago and there is no evidence of a completion certificate then advise the client of lack of availability of a Completion Certificate and to check with Valuer/Surveyor as to structural integrity of the alteration and the issues that arise if they wish to undertake additional works.
If the surveyor has concerns then if there is a lender involved advise straight away and consider seeking a retrospective certificate or indemnity insurance. Advise the client on the exposure to enforcement action. These situations are the exception rather than the rule.
If there are no concerns its unlikely the client would be exposed to enforcement action because there would be nothing in the public interest to support an application for an injunction under s.36(6) of the Buildings Act 1984 to seek demolition of the works unless the works has been concealed and or present a health and safety issue to the public. In my opinion don't waste money on indemnity insurance.
So what about installation certificates?
The same applies as above and to help I have put together a draft reply to deal with those countless requests for charitable donations to the indemnity insurers coffers.
This is the reply I suggest when a seller is asked for indemnity insurance for the absence of a FENSA or other installation certificate where these are shown to exist in the buyers local authority search:
It is clear from the result of the local authority search that the installation was undertaken according to requisite building regulations and therefore there is no scope to argue your client will be exposed to enforcement action. Indemnity insurance is therefore unnecessary and will not be offered. If you disagree then we would ask you to cite legal authority to support your argument that indemnity cover is necessary and indeed essential in terms of protecting your client’s interests.
The reply of a seller when asked for indemnity insurance for the absence of a FENSA or other installation certificate where this is not disclosed in the result of the local authority search would I suggest be as follows:
The time for enforcement action ended some time ago and unless the Local Authority can show that the installation presents a danger to the public then there is no scope to argue your client will be exposed to enforcement action. Indemnity insurance is therefore unnecessary and will not be offered. If you disagree then we would ask you to cite legal authority to support your argument that indemnity cover is necessary and indeed essential in terms of protecting your client’s interests.
As mentioned above if there is no evidence of building regulation compliance your client is better off paying for a competent contractor to inspect and report on the installation than wasting money on indemnity insurance. The risk of enforcement action is very low compared with the cost of replacement if the work was carried out haphazardly.
Do keep in mind every transaction is different and the above general observations and guidance may not always apply. If you are a homebuyer or seller you should always take advice from an experienced conveyancer. The above is offered as guidance rather than advice that can be relied upon.
Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk
