Solicitors should always when a property is to be purchased ask if there has been any alteration made to a property, and whether planning permission and/or building regulations approval has been obtained. At one time if no enforcement action in relation to building regulation was not taken within 12 months the buyer could proceed without fear of assuming the risk of liability.
However, in the case of Cottingham v Attey Bower & Jones [2000] PNLR 557, a firm of Solicitors were held negligent because they had not adequately investigated whether works had building regulation approval. The building works required £30,000.00 worth of repairs and the buyer’s Solicitor was held responsible for the cost of this, because it was held that even though no enforcement action had been taken in 12 months it was still open to the Council to apply for an injunction at any time.
Since this case Conveyancers have always erred on the side of caution and ask for a copy of building regulations approval for any works irrespective of when they were undertaken. The problem they often face is that Councils do not always keep a copy of the building regulation documentation for more than 4 or 5 years.
You may ask why a Council would bother to enforce say after 20 years. Realistically the chance of action is remote, but it is not inconceivable, because if the works later raise a Health and Safety issue then the Council would probably not hesitate in taking action.
If you are a purchaser with a mortgage the situation is not going to be helped, because lenders are aware of this case, and always ask as a condition of the mortgage for confirmation the building approval has been obtained. Sometimes a lender can allow the lack of building regulations to go through, if an indemnity policy, that is an insurance policy, is taken out to protect against possible enforcement action.
Insurance can only be obtained however if the Council has not been alerted to the fact of the absence of building regulation approval. Interestingly therefore it is perhaps best at times for no inquiry to be made with the Council.
No all lenders however accept insurance. It is down to the solicitor to check with the lender.
Insurance may not always be the answer because if there have been structural alterations undertaken, and there is no building regulation approval, then it is obviously important to make sure that the property is safe. In those circumstances a structural survey is clearly essential and is likely to be requested by the lender.
So to recap if it’s found out there had been structural alterations, the first step is to ask the seller whether there has been any building approval. If there is not, then to enquire about insurance, but to also give consideration to whether:-
- The lender you are borrowing from is prepared to accept insurance.
- Whether you are in fact prepared to accept this, because you could be buying a house that has structural problems. Indeed it’s for this reason I always advise that a full survey should be obtained before contracts are exchanged.
Before paying for indemnity insurance please read this article by the same author: Overuse of indemnity insurance
Before paying for indemnity insurance please read this article by the same author: Overuse of indemnity insurance
By David Pett - davidpett@m-j-p.co.uk 
