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    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 11:29 AM
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    mistaoononymous
    Buying new build and discovered planning hasn't been discharged.
    • #1
    • 8th Oct 17, 11:29 AM
    Buying new build and discovered planning hasn't been discharged. 8th Oct 17 at 11:29 AM
    Hi

    We are almost three months into buying a new build only to discover through our own enquiries with the council that one of the conditions of planning was never discharged prior to construction. The planning was originally conditionally granted four years ago with the stipulation that construction should not begin until all conditions were discharged. We have spent hundred of pounds on solicitor fees, surveys and the valuation and feel that the estate agents under the Consumer Protection Against Unfair Trading Regulations should have advised us of this in the first instance. We, nor do we feel anyone else would ever enter into such a fraught house buying process had we known this. Does anybody have any experience of these issues and able to advise us as to what we should do. Any help is greatly appreciated, we are at the point of pulling out of the sale and obviously extremely stressed as this would mean us having to take out another six month rental agreement causing us to lose thousands.
Page 1
    • tealady
    • By tealady 8th Oct 17, 11:43 AM
    • 2,737 Posts
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    tealady
    • #2
    • 8th Oct 17, 11:43 AM
    • #2
    • 8th Oct 17, 11:43 AM
    What was the condition?
    Proud to be an MSE nerd
    Judge people by their achievements, not by their mistakes
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 12:05 PM
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    mistaoononymous
    • #3
    • 8th Oct 17, 12:05 PM
    • #3
    • 8th Oct 17, 12:05 PM
    It was a condition that an investigation and report be made on possible contaminated soil and remediation. The report was required to be submitted to and signed off by the local authority prior to any development. A report has now been submitted last week, but it wasn't made until May this year, four years after the decision letter.
    • k3lvc
    • By k3lvc 8th Oct 17, 12:08 PM
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    k3lvc
    • #4
    • 8th Oct 17, 12:08 PM
    • #4
    • 8th Oct 17, 12:08 PM
    And has anyone else raised this as an issue or are you clutching at straws for a get-out clause ?

    Assuming the report has now been done what's the issue ?
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 12:19 PM
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    mistaoononymous
    • #5
    • 8th Oct 17, 12:19 PM
    • #5
    • 8th Oct 17, 12:19 PM
    We are absolutely not looking for a get out clause, the issue only came to light as the seller's solicitor had told our soicitor that they had already sent proof that the condition had been discharged. The fact that they hadn't made us suspicious so we contacted the council and were told that we had been misinformed. We had been planning to exchange contracts this week, I had transferred the deposit into my solicitors account and signed the contract in preparation for this before we learned about the planning. The report has been submitted but due to the timeframe from the planning letter as well as the fact that the developer has contovened the stipulation that the report was submitted and approved prior to construction means the council may not even consider the report. We have also been advised that the council may take up to eight weeks to even assign the report to an agent. The timeframe would mean we would have to take out a new lease losing is thousands.
    • Davesnave
    • By Davesnave 8th Oct 17, 12:47 PM
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    Davesnave
    • #6
    • 8th Oct 17, 12:47 PM
    • #6
    • 8th Oct 17, 12:47 PM
    Isn't your claim more against the developer than the agent?

    The agent isn't supposed to mislead, but they wouldn't have access to all the paperwork, and as you've seen yourself, the vendor's solicitor seems to be giving dodgy information to people, possibly on the instructions of the developer.

    Are you still happy to go ahead and buy? If so, would a financial consideration via the final price not be a better way to go, rather than through the courts?
    Last edited by Davesnave; 08-10-2017 at 12:50 PM.
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 12:59 PM
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    mistaoononymous
    • #7
    • 8th Oct 17, 12:59 PM
    • #7
    • 8th Oct 17, 12:59 PM
    This is what I don't know. The Consumer Protection Against Unfair Trading Regulations state that the estate agent is required to inform the buyer of any problems they should reasonably be expected to know. Given that it was only a quick call to the council to establish that the property did not have planning permission I would suggest that they could be deemed as not having carried out due diligence. We are also wondering if the council is partially at fault since their building control signed the building off without planning permission, but I am clearly no legal expert. In terms of trying to recoup against the developer; in this instance the developer is not a national building company but a husband and wife who clearly didn't know what they were doing in terms of the legal side of things.
    • Davesnave
    • By Davesnave 8th Oct 17, 1:08 PM
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    Davesnave
    • #8
    • 8th Oct 17, 1:08 PM
    • #8
    • 8th Oct 17, 1:08 PM
    You are suggesting that agents should ring the council and check that all the newer properties on their books have planning permission?

    I'm not sure that this ever happens.

    Edited to add that the Planning Dept and the Building Regulations sections of a council do different jobs and don't usually share staff or necessarily communicate with one another unless a specific reason is highlighted.
    Last edited by Davesnave; 08-10-2017 at 1:18 PM.
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 1:46 PM
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    mistaoononymous
    • #9
    • 8th Oct 17, 1:46 PM
    • #9
    • 8th Oct 17, 1:46 PM
    Honestly, yes, I don't think it's too much to ask that an estate agent makes a five minute phone call to determine that what they are selling can legitimately be sold. Without planning having been discharged lenders will not and cannot be expected to provide a mortgage.
    • Davesnave
    • By Davesnave 8th Oct 17, 1:53 PM
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    Davesnave
    I don't think it's too much to ask that an estate agent makes a five minute phone call to determine that what they are selling can legitimately be sold..
    Originally posted by mistaoononymous
    The job of proving that a property can legitimately be sold is that of the solicitor. It takes more than a phone call, because much more than just the existence of planning permission is involved.

    Arguing that the EA should have done part of your solicitor's job, probably isn't the best way forward for you.
    Last edited by Davesnave; 08-10-2017 at 6:19 PM. Reason: "your EA" to "the EA" The OP has no contract with the EA.
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • ProDave
    • By ProDave 8th Oct 17, 2:00 PM
    • 445 Posts
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    ProDave
    Contact the planners. Explain the situation, and ask for a letter of comfort that they are happy that all planning conditions have been complied with and no enforcement action will be taken.

    Make sure the vendor knows you will not exchange until you have that letter.
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 2:03 PM
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    mistaoononymous
    You may be right, but the CPR was tightened up in 2008 and then 2013 to come down on estate agents not providing information. The lapse in information is also more due to the seller's solicitor since our solicitor had asked for proof that planning had been discharged. Regardless, I will report the estate agent to the ombudsman and see where that gets me.
    • k3lvc
    • By k3lvc 8th Oct 17, 2:37 PM
    • 1,943 Posts
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    k3lvc
    You may be right, but the CPR was tightened up in 2008 and then 2013 to come down on estate agents not providing information. The lapse in information is also more due to the seller's solicitor since our solicitor had asked for proof that planning had been discharged. Regardless, I will report the estate agent to the ombudsman and see where that gets me.
    Originally posted by mistaoononymous
    It'll get you nowhere - it's only the EA's role to represent those elements that they could have reasonable knowledge of, not to go digging to see if every possible issue has been complied with. This is clearly the responsibility of the legal teams hence the numerous questions asked/searches done during the process
    • Davesnave
    • By Davesnave 8th Oct 17, 6:21 PM
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    Davesnave
    You have not answered the question in Post 6. "Are you still happy to go ahead and buy? If so, would a financial consideration via the final price not be a better way to go?"
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • Doozergirl
    • By Doozergirl 8th Oct 17, 7:14 PM
    • 24,053 Posts
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    Doozergirl
    You may be right, but the CPR was tightened up in 2008 and then 2013 to come down on estate agents not providing information. The lapse in information is also more due to the seller's solicitor since our solicitor had asked for proof that planning had been discharged. Regardless, I will report the estate agent to the ombudsman and see where that gets me.
    Originally posted by mistaoononymous
    You may be angry, but it doesn't make the estate agent the one to vent your anger on.

    Estate agents are marketing agents. It is absolutely not reasonable to expect that an agent would check that planning conditions had been discharged. Not in their remit at all. Absolutely in the remit of your solicitor who has done their job in finding the issue.

    Fact is, your vendors have missed something from the planning process. They perhaps didn't think it would affect sale, didn't understand the language used or perhaps missed it altogether and were clueless. I would certainly never expect an estate to even begin to understand the language used in a planning approval document. It's hard enough to read it myself. Even if they saw the document, it would look to a lay person like a stamp of approval, not a request for more information.

    This is all part of the process. Your solicitors are hired to find problems and see that they are rectified. It's normal. The only problem here is your own timescale. You're not supposed to give notice to a landlord until you have exchanged in order to protect yourself from the situation you find yourself in. The dance of a property purchase is rarely set to the beat of our own drums.

    Complain about the estate agent by all means, but if checking searches and applying for Local Authority paperwork was their job, you wouldn't need a solicitor and our whole system would be different.
    Everything that is supposed to be in heaven is already here on earth.
    • Alchopops
    • By Alchopops 8th Oct 17, 7:46 PM
    • 16 Posts
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    Alchopops
    Hi, I have to ask whereabouts (town) are you buying? PM me if you prefer, but this is exactly the problem we have potentially in exactly the same circumstances from a small local developer.
    • daveyjp
    • By daveyjp 8th Oct 17, 8:06 PM
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    daveyjp
    Very sloppy conveyacing solicitor. A good one would check all paperwork regarding planning was in order before completing the sale.

    Just hope the site investigation and any remediation were done properly.

    Have a look at the planning portal to find out what the contamination may have been.
    • davidmcn
    • By davidmcn 8th Oct 17, 8:16 PM
    • 6,259 Posts
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    davidmcn
    Honestly, yes, I don't think it's too much to ask that an estate agent makes a five minute phone call to determine that what they are selling can legitimately be sold. Without planning having been discharged lenders will not and cannot be expected to provide a mortgage.
    Originally posted by mistaoononymous
    A new build development can easily have dozens of planning conditions, possibly spread over several consents. It's unrealistic to expect anyone to independently verify them in a 5 minute phone call, and it ain't the EA's job.
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 8:18 PM
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    mistaoononymous
    I suppose the fear is that this could lead to the buyer withdrawing from the sale process
    • mistaoononymous
    • By mistaoononymous 8th Oct 17, 8:23 PM
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    mistaoononymous
    You are right, but the problem has been made much worse by the estate agents who have told us on multiple occasions that all of our solicitors enquiries have been answered. The seller's solicitors have also on numerous occasions claimed that information has been submitted that not only hasn't been but actually doesn't exist. We allowed over three months for the process to complete. We are chain free and had our mortgage already in place so this should have been ample time.
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