Unauthorised building works - accept insurance or demand retrospective consent?

melp2939

Hi all,

Myself and my partner (first time buyers) are currently very close to exchanging on a maisonette. Quite late in the process, it became apparent that planning permission was not obtained to remove part of the supporting wall between the kitchen and living room - this was done at some point before the current owners moved in, but we don't know when. Our solicitor has advised us that there are two options:

1) We can take out indemnity insurance (the seller has agreed to pay for this) - but this only covers us if the Local Authority takes action against us, which I understand is very unlikely.

2) We can demand that they go to the Local Authority and get retrospective consent - which could be time consuming, and therefore potentially risks the sale as they are pushing to exchange asap,

We're really torn on this, because we don't want to risk there being any structural issues if the work was done badly, but also really don't want to lose the flat at this late stage and after incurring significant costs through the survey and conveyancing. We don't know if there is a third option or if this isn't feasible...

3) Get a surveyor in to open up the work and report on its structural soundness, go ahead with the sale if we're happy and then potentially get retrospective consent later. Our thinking is that this would potentially be quicker but would still give us peace of mind...

Any advice hugely appreciated!

Cakeguts

I don't understand the bit about planning permission? Is the maisonette an ex local authority property? Normally you would need to ask permission of the freeholder of the building. Is the maisonette leasehold. Did the freehold owner give consent for the work to be carried out?

Where in the building is the maisonette? Should this wall be holding up another maisonette upstairs?

System

Firstly the work wouldn't have required planning permission at all, it would have required building control sign off...
I find it bizarre that the current seller is paying for cover for work done prior to their ownership - do they have insurance cover from the previous owners for it?! And if no one knows when the work was done, how have they identified anything has been done, and that there is a risk of the local authority taking action?

I hate indemnity policies, really just a solicitors excuse to cover a risk that they don't understand

eddddy

It wouldn't be planning permission you're talking about, it would be building control sign-off.

Has the freeholder granted consent for this work? Lack of freeholder consent is likely to be a bigger problem than lack of building control sign off.

Have you had the flat surveyed? What were the surveyor's comments? In general, if the work was done many years ago, and there's been no movement or cracking since, it's a reasonably safe bet that it's ok.

melp2939

Cakeguts wrote: »

I don't understand the bit about planning permission? Is the maisonette an ex local authority property? Normally you would need to ask permission of the freeholder of the building. Is the maisonette leasehold. Did the freehold owner give consent for the work to be carried out?

Where in the building is the maisonette? Should this wall be holding up another maisonette upstairs?

By planning permission I mean building regulations approval. The maisonette is leasehold (not ex-LA) but presumably consent wasn't gained from the freeholder - there is nothing in any of the lease documentation we've received to suggest this...our solicitor hasn't flagged that this might be an issue but presumably it could be?!

The maisonette is 1st and 2nd floor plus a recent loft conversion, and the knock-through is on the 2nd floor. It's a supporting wall. Our survey said we'd need to open up the wall to inspect it if we want to make sure the work is structurally sound.

I find it bizarre that the current seller is paying for cover for work done prior to their ownership - do they have insurance cover from the previous owners for it?! And if no one knows when the work was done, how have they identified anything has been done, and that there is a risk of the local authority taking action?

Yep - the current seller also got insurance cover from the previous owners! It seems to us like the indemnity insurance is effectively pointless and is just a way of paying for the problem to go away...the solicitor said there's pretty much no risk of any action being taken. Work has definitely been done - the survey identified it and said we should check to see if buildings regulation approval was received....

G_M

Given the length of time that's passed, LA enforcement cannot happen.

So the risk is that it was a cowboy job, and the roof is now inadequatley suported (or similar) and will fall in.

Again, given the length of time that's passed, it seems likely that would have happened by now if it was going to.

if a person carrying out building work contravenes the Building Regulations, the local authority may prosecute them in the Magistrates' Court where an unlimited fine may be imposed (sections 35 and 35A of the Building Act 1984).

Prosecution is possible up to two years after the completion of the offending work. This action will usually be taken against the person carrying out the work (builder, installer or main contractor).

Alternatively, or in addition, the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes the regulations (section 36 of the 1984 Act). If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner.

A section 36 enforcement notice cannot be served on you after the expiration of 12 months from the date of completion of the building work.

https://www.planningportal.co.uk/info/200128/building_control/38/building_regulations/3

eddddy

melp2939 wrote: »

The maisonette is leasehold (not ex-LA) but presumably consent wasn't gained from the freeholder - there is nothing in any of the lease documentation we've received to suggest this...our solicitor hasn't flagged that this might be an issue but presumably it could be?!

Have you told your solicitor that there's been a loft conversion and walls removed? If not, your solicitor may not know.

You and/or your solicitor need to check the situation with ownership of the loft. Often roof spaces are owned by the freeholder, not the leaseholder.

If the freeholder really hasn't granted consent for all this work, it could be a significant problem.

But TBH, I'd assume that the current owner checked all this out before they bought the property.

melp2939

eddddy wrote: »

Have you told your solicitor that there's been a loft conversion and walls removed? If not, your solicitor may not know.

You and/or your solicitor need to check the situation with ownership of the loft. Often roof spaces are owned by the freeholder, not the leaseholder.

If the freeholder really hasn't granted consent for all this work, it could be a significant problem.

But TBH, I'd assume that the current owner checked all this out before they bought the property.

The loft conversion was done properly - there is a license for structural alterations from the freeholder, change in the terms of the lease to include the loft space etc, plus a completion certificate for the work. The current owners did all that - the problem is just with the removal of (part of) the kitchen / living room wall.

I've checked the lease and the property plans - the wall is still there in the plans, and the lease definitely has restrictions on structural alterations without consent. Presumably the landlord could demand that we rectify it even though the work was done by a previous tenant?

Thanks a lot for your advice all...we'll talk to our solicitor about this.

moneyistooshorttomention

I'd definitely want a surveyor analysing that work in detail - whatever else you do or don't do.

I've heard of people removing supporting walls before now - and ending up with structural problems as a result. Also - I think we've probably all seen photos of a heap of rubble where a house used to be - ie because some work was done (but it was cowboy builders that did it).

Doozergirl

melp2939 wrote: »

The loft conversion was done properly - there is a license for structural alterations from the freeholder, change in the terms of the lease to include the loft space etc, plus a completion certificate for the work. The current owners did all that - the problem is just with the removal of (part of) the kitchen / living room wall.

I've checked the lease and the property plans - the wall is still there in the plans, and the lease definitely has restrictions on structural alterations without consent. Presumably the landlord could demand that we rectify it even though the work was done by a previous tenant?

Thanks a lot for your advice all...we'll talk to our solicitor about this.

If the wall was taken through at the same time, it could well be included in the sign off for the loft conversion. I've had building control approval for all manner of random items in one application. My flat-to-pitched roof conversion and a knock through downstairs in the kitchen are under one certificate.

If the loft conversion was completed after the knock-through, then the knock through will have been taken account of when the structural engineer did calcs for the loft floor and presumed safe.

AlexMac

moneyistooshorttomention wrote: »

...
I've heard of people removing supporting walls before now - and ending up with structural problems as a result. Also - I think we've probably all seen photos of a heap of rubble where a house used to be ...

That's rather alarmist... Don't panic!

If you really like the house, and there are no signs of movement, I'd continue with the purchase and take a judgement on whether the missing wall is likely to cause you similar problems of disclosure to your buyers when (XX years down the line?) you eventually sell on.

As I've said in a previous post, we faced a similar issue when we bought our freehold house over 5 years ago; removal of an internal wall without building control by whoever had owned it before the people selling to us.

They (the then current owner) had simply followed your "option 3"; a new survey for a couple of hundred quid, which gave it the all-clear and meant they were covered by that surveyor's professional indemnity.

We established that we would not be covered by the indemnity, which was specific to the then client. We even spoke to the original surveyor who was semi-retired but happy to re-survey.

But we (and the builder Bro-in-law) also took the view that as the work was now at least about 15 years or more old, and solid as a rock, there was no need to fret. So we didn't even re-survey!

I bet yours will be similarly sound or the loft works would have surely caused a bit of cracking.

OK, we had no issue of freeholder permission, but in practice, your Council has more on its mind than the odd bit of internal work; there's not a snowflake's chance in hell that they'll make you brick it up!

In the 40 odd years we've owned houses, risk averse behaviour has escalated to the point of paranoia. It used to be as easy as buying a car, but while your solicitor is possibly justified in diverting you from buying a heap of rubble, I've become jaundiced by a growing list of demands for expensive but largely pointless bits of paper; chancel liability checks, street tree surveys, indemnities against long-demolished domestic fuel storage tanks, way-leaves to use long-established access roads used daily by hundreds of my neighbours ...

Lawyers; doncha' luvvem?

Go for it