Who's responsible for retrospective planning/Building Regs?

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    Who's responsible for retrospective planning/Building Regs?

    Hello
    I just joined this forum to try to get an answer to a real dilemma.
    We bought a flat in a converted house a few years ago. Our solicitor screwed up and failed to notice that the flat didn't have planning permission or building regulation approval. (It used to be one flat, now split into two).

    Now we want to sell the flat and need to sort out the mess. As far as I can tell we can apply for retrospective planning permission and building regulation approval and keep our fingers crossed that it will all go through without too much expense but if something needs to be paid, who is responsible?
    OUr landlord and their managing agents are totally useless and quite intimidating crooks so I know if they get involved in the whole thing it will be a nightmare. But I assume the council will have to contact them to discuss what changes were made to the building (they were the ones who did the conversion). Can they pass any costs on to us? Can they pass on the costs incurred if anything needs to be put right with the building conversion work? Is there any precedent about landlords not being allowed to pass on costs for their own prior incompetence?
    Many thanks to anyone who can help.

    #2
    Originally posted by zula View Post
    We bought a flat in a converted house a few years ago. Our solicitor screwed up and failed to notice that the flat didn't have planning permission or building regulation approval. (It used to be one flat, now split into two).
    Pretty sure there's an indemnity insurance policy (£100 or so?) that you as vendor can buy to cover yourself against losses caused by this stuff - your solicitor will know about it and if it's the same one who screwed up, I would have thought might be very keen to cover the cost of the policy...

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      #3
      Hi Eric
      Unfortunately I don't think that is an option for us anymore. It's what the solicitor first offered when we contacted him about this two years ago. Nothing really happened after that. Then when we started actively looking into the issue again recently we contacted the Council to ask for advice. Now they know about the problem so we can't get an indemnity policy (as far as I can see) because one of the conditions of the policy is you have to confirm that you don't think the Council is aware of the issue. Which they are, because we accidentally told them.

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        #4
        I really think you need to get this sorted out by a solicitor - a good, specialist solicitor this time.

        Is the block eligible for enfranchisement as it might be an idea to buy the freehold?

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          #5
          But you say that the solicitor offered you the insurance 2 years ago but, presumably, you turned it down? Why?

          Really, it depends on what you were told by the solicitor about this when you bought the flat. Did you buy it knowing it had no planning permission or building regs?

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            #6
            Hi
            We didn't turn it down exactly. They offered it, we weren't entirely happy (because we'd never heard of this indemnity insurance thing and thought it sounded quite dodgy, now I realise it's quite common), but as we weren't planning to sell for a while we didn't follow up as we wanted time to think about all the options. When we started looking into those options, we called the council to ask what we'd have to do in order to get retrospective building regulations and planning permission (because if it wasn't too much trouble we thought it would be better than getting the insurance). They insisted on taking all our details. Then the next day we were looking at the insurance option again and discovered that we'd just made it impossible, by telling the council about the flat!
            When we bought the flat we weren't conscious of the fact it had no planning or building regulation approval - our solicitor didn't bring this to our attention. It was only after purchasing it, and on a tip off from the people in the other flat, that we were looking more carefully through all the documents and realised there was nothing there. I suppose to an extent it's our own fault, but then, why do people hire solicitors to help them buy houses if it's not for precisely this kind of thing? Neither of us had ever bought before, we're quite young, we had no idea!

            Comment


              #7
              IMO the solicitor you used when you bought the flat is responsible for this, as this is exactly the kind of thing they are paid to double check on. I would go back to them, voice your concerns and ask them what they are going to do about it. They should have professional indemnity insurance to cover this sort of thing.

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                #8
                If you can prove the works were completed 4 years ago or more you can apply for a Certificate of Lawful Use which will most likely be granted. If the building works included a change of use (e.g. office or shop converted to residential) you will need to prove 10 years.

                Evidence of when it was converted might include:
                Does your property pay its own council tax bill which is properly addressed?
                How long has that address been receiving its own council tax bills (even before you purchased it?
                Do you have your own utilities bills (elec, water, gas)? can you trace any of these back 4 years?
                Could you get a statutory declaration from a previous occupant?

                If you can prove the works were completed 4 years ago or more you can apply for a Certificate of Lawful Use (a kind of retrospective planning permission) which will most likely be granted. If the building works included a change of use (e.g. office or shop converted to residential) you will need to prove 10 years.

                You can also get building control to take a retrospective look and advise what works would be required to achieve their sign off. Required works might devalue your property - if for instance it is open plan but needs to be compartmentalised to meet fire regs. Your may well accept responsibility for the costs/losses involved with sorting out building regs and planning matters which he should have identified. As a previous poster noted, they will (should) have indemnity insurance to cover this.

                It is also worth checking the sellers declarations prior to sale. Did they disclose that the property had been recently converted? Did they say when? Did they claim building control consent had been granted?

                I have seen a similar situation recently (new flat conversion only had a building control certificate for works to make a new doorway) and find it absolutely unbelievable that solicitors make these kinds of mistakes.
                Assume I know nothing.

                Comment


                  #9
                  Thanks Brixtonia
                  I had heard about this four rule, but then when I looked into it I read something about if the property is converted into 2 or more "dwellings" then there is no time limit. Or the time limit is 10 year. It wasn't clear to me. This used to be one flat, now it's two, so I don't know if the time limit is 4 years, 10, years or never.
                  Thanks for your advice though, I will try to trace back the council tax bills as you suggest.

                  Comment


                    #10
                    Have a read through this:
                    http://cmis.milton-keynes.gov.uk/Cmi...Document=28643

                    It is just a local planning document so not binding but gives you a good idea how an application will be considered and where to start looking for information and types of evidence.

                    Also look at Newport SPG s2.5 (I have only picked Newport because it came up in a google search): http://www.newport.gov.uk/stellent/g...cont064549.pdf
                    Again - it is local guidance and may only be their interpretation so they may be incorrect.

                    The four year rule appears to be set out in Town & Country Planning Act 1990 s171B (1.2).

                    I have used the 10yr rule before for a conversion of a house into 3 flats. I was not sure whether it was 4 or 10 yrs at the time but had 10yrs of info so submitted it all. No problems.

                    I should make it absolutely clear that I am not legally qualified.
                    Assume I know nothing.

                    Comment


                      #11
                      Originally posted by owen View Post
                      IMO the solicitor you used when you bought the flat is responsible for this, as this is exactly the kind of thing they are paid to double check on.
                      I absolutely agree; but it seems a bit of a tricky one here in that apparently the solicitor concerned has proposed a solution to the problem, but the client seems to have rejected this and then compounded the original problem by going to the council...

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                        #12
                        Originally posted by Ericthelobster View Post
                        I absolutely agree; but it seems a bit of a tricky one here in that apparently the solicitor concerned has proposed a solution to the problem, but the client seems to have rejected this and then compounded the original problem by going to the council...
                        ...thereby losing the ability to seek insurance now.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

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                          #13
                          We didn't reject the insurance offer - they sent us a letter saying they would provide it if we wanted it and we never heard from them again. We didn't follow up on it immediately because we weren't planning to sell for a while and wanted to think it all through. Given that the solicitor had already screwed up for us almightily once you can understand we didn't want to take his word for anything this time. We didn't realise that we shouldn't contact the council to ask for advice - of course, if the solicitor had said "don't contact the council or we won't be able to give you the insurance" we wouldn't have done it! As the solicitor was responsible for not alerting us to the lack of building/planning permission in the first place, and in effect admitted as much when they first offered us the insurance, surely they can't now claim it's not their problem just because the insurance is no longer an option?

                          Comment


                            #14
                            The solicitor should have expressly advised you not to progress with the purchase without the insurance in place. I doubt they would be considered to have carried out their duty of care if they offered insurance as an option without explaining the consequences of not taking out the insurance. They will have also had an obligation to advise your mortgage provider - which they will not have done since the provider is unlikely to have progressed the loan against an illegal development. If this is the case don't go highlighting this to your lender.

                            If you are able to establish the 4 years history then sorting out the planning status should not be expensive in the scheme of things. Getting building control sign off will be the expensive part - making sure doors, ceilings and walls meet fire and sound regs etc.. Was the insurance offered in respect of the lack of building regulations too? (Is that insurable against?) If not the costs of bring the property up to the current standards would presumably be claimable against the solicitor.
                            Assume I know nothing.

                            Comment


                              #15
                              Originally posted by Brixtonia View Post
                              Getting building control sign off will be the expensive part - making sure doors, ceilings and walls meet fire and sound regs etc.
                              Yes that can potentially be pretty horrendous especially if a tenacious Building Control Officer decides there's reason to believe things haven't been done properly: eg they can demand that plaster is removed to expose new lintels, floors/ground dug up to look at foundations etc. And of course the very fact that the work was done originally without recourse to Building Control instantly raises the 'cowboy alert' level of suspicion.

                              Was the insurance offered in respect of the lack of building regulations too? (Is that insurable against?)
                              Yes these indemnity policies would typically cover that too.

                              Maybe time to consult another solicitor, who doesn't mind putting the boot into the original mob?

                              Comment

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