Possible conveyancing problem

bouicca21

I am hoping to sell my family house this year but have discovered a potential problem.

As the house was built it had a small detached garage. The previous owners knocked it through into their existing kitchen and put a flat roof over the path that originally separated the two, making a nice big kitchen diner. Then they built a new garage. This was all at least 28 years ago, possibly longer. None of this turned up as a problem when we bought the house, though I do remember pointing out to our solicitors that the land registry plan did not match the ground.

I note that new conveyancing forms ask for details of any alterations and requisite building reg compliance. So presumably I will have to declare this - but I have no idea whether the changes have planning permission or building reg compliance. Planning permission presumably doesn't matter after so long an elapse of time, but what about building regs? I have no idea what building reg compliance was required 28/30 years ago. In theory I only know about the 'extension' because of interpreting what I see. I do know from friends who have done building works on their house that building reg compliance is way more intrusive and careful nowadays.

So what do I do? Do I have to declare it? Do I wait for a buyer to find out during the conveyancing process and risk losing the sale or do I look for some sort of transferable indemnity insurance now so as to forestall any problem? Do I need to get my very elderly neighbour to sign an affidavit that the changes were 28 years ago?

jibbyboo

I was looking at a similar issue with my conveyancing.

Basically, my LR covenants state that the building must not be changed or altered without permission from the builder of his successors (built in 1968). My property has a carport that was not on the original deeds.

The concern here is that the builder or his children/ grandchildren could come back to my new house and say "you didn't ask my permission to build this carport, therefore you have to pay me compensation" <- a very unlikely scenario.

Therefore, what would happen is that the vendor that I am buying from will potentially need to pay indemnity insurance to cover me for this happening. I'm seeking advice from my solicitor about this, as it's obviously not a huge change unlike yours.

If you knowingly provide false information on the seller's questionnaire, not only is it unethical, but the buyer may lose faith in you once they get the boundary documents from their solicitor demonstrating the original plan. If there are covenants preventing extension, then the buyer will be taking a risk.

However, if you pre-empt this by stating that you are willing to pay indemnity insurance then nobody will lose. I believe this is relatively cheap and would last the lifetime of the new owner's hold on the property.

Hope that makes sense!

bouicca21

It occurs to me that there is a subsidiary problem - a relative had offered to do the conveyancing from myside, but if we are going to run into technical issues then perhaps it would be better to use a professional?

jibbyboo

I would definitely recommend doing so.

I have been using Eric Whitehead, and they've been great - I am evangelical about them even before exchange and completion!

bouicca21

Jibbyboo, I reckon a lawyer could have a field day with defining just who the builder's successors were. Descendants? Heirs? How many might there be, do they have to be unanimous or is one enough? Or is it descendants of the business? Presumably the builder retained a property and didn't want the hoi polloi to spoil it.

jibbyboo

That's precisely what my solicitor said: that discovering who the descendants are would be extremely difficult and it should be fine.

However, the LR will/ should have/ probably has the name of the person that built your property and all the associated history. So if you did some genealogy exploration then you may discover who they are, particularly if they were resident nearby (as is the case with my property).

However, if you did locate them and if they don't know that they have a right to your property, then you may want to avoid making them aware of this! "hello opportunity to claim £500 for absolutely nothing :wave: "

Land_Registry

There are a couple of things which may be of interest here

1. The Land Registry plan is important primarily with regards the red line or 'general boundaries' of the property. The details, for example the Ordnance Survey lines depicting the buildings and other physical features within that red line (and indeed those outside of it) are not so important from a land registration perspective

You will see many plans which may or may not show new extensions, garages appearing or disappearing etc but it is important to note that the Land Registry (title) plan will not alter with every change made to those buildings or features. The title plan’s purpose is to denote the general boundaries and not the buildings inside or outside of the red lines.

Therefore if the 'land registry plan did not match the ground' simply because it did not show the structural changes which had gone on within the boundary, then this should not be an issue.

From what you have posted and providing the property has not extended beyond those general boundaries, an affidavit from a neighbour is unlikely to be required - they tend to come into play if you have encroached on someone else's property and are seeking to claim the land as your own.

As far as retrospective planning etc are concerned you would need to speak to the local authority and their planning department

2. Restrictive covenants are a 'promise from one person to another'. Builders will often impose covenants on each plot/house sale to restrict new owners with regards alterations primarily to ensure that the remaining plots/houses are 'saleable' - buyers can be put off by lots of additional building work going on for example.

I have read a number of threads which have stated that once all the plot/house sales have been completed the original builder's interest is likely to wane and the likelihood of imposing such covenants diminishes significantly - something I would recommend discussing with a legal adviser.

The key point to make from a land registration perspective is that many of these covenants 'run with the land', namely that whilst the builder enjoyed the benefit of the covenants imposed with each plot/house sale that benefit was also passed on to each land owner i.e. one large development imposes covenants on each one of 50 plot/house sales equals 50 landowners now with the benefit of those covenants.

The clues will be in how the covenanting clause and actual covenants are worded as to who now has the benefit or otherwise. Tracing the Builder's ancestors may not be the route to take unless they still own part of the original development? - something to consider and discuss with your solicitor depending on the wording of the covenants as already mentioned.

We have a brief FAQ on restrictive covenants which may be of interest.

G_M

Planning Permission is really not an issue once 10 years has passed.

Building Regs is not an issue (from an enforcement perspective) once 1 year has passed (except a Listed Building). However, lack of Building Regs might indicated an unsafe or poor quality construction.

Sometimes however, buyers, or their solicitors, or their lenders, panic at the lack of Planning / BRegs, and insist on an indemnity insurance.

Unecessary (just money in the insurance company pocket), but if it smoothes the sale maybe money worth spending. Cross that bridge when you come to it.

The Title Plan issue has been excellently covered by the LT Rep above.

That leaves the covenant issue - but I see no mention of a covenant in your post.

If your neighbour is competant/confidant to do the conveyancing, go for it. Though if you have a mortgage to be paid off there will be issues. Assuming he knows what he is doing though, he will be aware of these.....