Restrictive convenants???

SootSoot

I am planning on selling my flat, however, I installed some replacement windows without the FH's prior consent.
Its quite long winded how this happened. It is not entirely clear on the lease about the replacement of windows. What it states is:
'not to make any structural alterations or structural additions to the flat nor to erect any new uildings thereon or remove any of the landlord's fixtures and fittings without the previous consent in writing to the council and not to alter add to disconnect or interfere with any of the circuit in the flat for heating or for the supply of hot water.'
I replaced my windows in Nov 2004. I called up the Planning dept to enquire about replacing the windows, as well as asking the HA (who are acting on behalf of the FH: the council) and the reply I got from them was that if the windows are FENSA and not altering the exterior look then they would be fine and that there were no major building works taking place in the near future affecting my property.
Then, in Apr 2005 I finally received my leaseholders handbook, due to the HA and council being as slow as usual and not completing the paperwork to transfer the ownership details on their data. To my horror, the leaseholders handbook states that the windows are the FH's responsibility.:eek: How was I supposed to know that???
So, once again I called the HA and asked them about it, they said call the planning dept, who told me to send pictures and if the windows were replacement then no permission would be needed. Anyway, I got nothing more back from planning regarding the matter. However, HA told me I would need to get retrospective permission and to send them a copy of FENSA cert. I asked them for an address to send it to, and I got no reply from them about it and the person dealing with it didn't bother replying to me!
I then got in touch with HA again this year asking if I needed permission for some other work and also enquired about the windows again, and was told by the same person that windows were maintained under the lease and that she couldn't do anything about my enquiries.

Now, after all that blurb, I was wondering, when it comes to selling, would I be able to buy a restrictive convenants indemnity insurance policy to cover myself or would I need to get the FH's permission? Technically, I haven't contacted the FH, surely?

Any help would be greatly appreciated.

clutton_2

i'd ask your solicitor about all this - these are the very issues he will sort out for you.

Lomion

From the FENSA website :

The FENSA Scheme
It is estimated that there are a huge number of installations of replacement glazing happening every year. If all of them were to go through the Local Authority Building Control application process, it would place an enormous burden on local authorities. It is essential to have a way to ensure that the work is done properly without an unreasonable increase in the administrative and financial burden on both installers and homeowners.
FENSA was set up by the Glass and Glazing Federation (GGF) at the request of the CLG to allow registered companies to self-certify that their installations comply with current Building Regulations.
A percentage of the work of every FENSA registered business will be inspected by a FENSA appointed inspector to ensure standards are met and maintained. FENSA will also inform local authorities of all completed registered installations and will issue a certificate to the homeowner confirming compliance.
Any installation undertaken by a company which is not registered with FENSA or a similar body, or has been done as a DIY project by a homeowner, will need full Local Authority Building Control approval. All Local Authorities will know of the registered businesses in their areas and can identify unauthorised work very easily. It should be noted that the homeowner is ultimately responsible for ensuring the installation complies with these requirements.
Before you sign a contract to buy any replacement glazing, be sure to ask whether the installer is able to self-certify. If not, an application to Local Authority Building Control for approval under the Building Regulations will need to be made by either the installer or the homeowner. It is likely that there will be associated charges with this.

Hope this helps

SootSoot

Thanks for the replies so far, but due to the flat not actually being under offer yet, I have not instructed any solicitors.
FENSA have issued me a certificate for the work, but they have nothing to do with PP nor restrictive covenants.

Any conveyancers out there who could enlighten me, please?

Thanx

silvercar

I replaced my windows in Nov 2004. I called up the Planning dept to enquire about replacing the windows, as well as asking the HA (who are acting on behalf of the FH: the council) and the reply I got from them was that if the windows are FENSA and not altering the exterior look then they would be fine and that there were no major building works taking place in the near future affecting my property.

Rely on the above paragraph and your FENSA certificate. If the buyer's solicitor queries this you can tackle it then. You would only take out an indemnity if the buyers requested it.

You have now found out that the freeholders are responsible for the windows, but they are highly unlikely to refund you so its a bit irrelevent finding this out now.

SootSoot

Thank you for the advice Silvercar. It's very reassuring.

However, what do I then put on the SPIF in the restrictions section where it asks about restrictive covenants? Do I not answer it then?

clutton_2

its my understanding that if you have a FENSA certificate, that you do not need planning as FENSA-registered window companies are deemed to be capable of complying with Building Regs and Planning requirements.

ginger

You'd be unlikely now to get restrictive covenant indemnity insurance for this as you have put the freeholder on notice of the problem - the insurance company see this as increasing the risk of the freeholder (or other the covenantee being the person with the benefit of the covenant) bringing a claim for breach of covenant.

You need to pursue the freeholder for retrospective consent. To bring a claim for breach of covenant they would have to show that the breach has detrimentally affected their retained land - its a very complicated area of land law so if you can't resolve this by speaking to the freeholder you should really take legal advice.
L

ginger

sorry - another thing. If you omit to answer the questions in any buyers enquiries forms honestly then you can be pursued for any costs the buyer incurs as a result. The basic details will suffice but you must not lie or omit any facts.

L

Richard_Webster

Its my understanding that if you have a FENSA certificate, that you do not need planning as FENSA-registered window companies are deemed to be capable of complying with Building Regs and Planning requirements.

FENSA has nothing whatever to do with Planning. However you do not normally need planning consent fro replacement windows, but if applicable, you might need consent under the covenants in the lease.

You need to look at the definition of what is and isn't included in the premises leased to you. There may well be a definition that e.g. excludes the structure but say includes non structural internal walls and it often contains a reference to the window frames and glass in the windows - sometime the frames are the Landlord's responsibility and the glass the lessee's, but it varies.

The wording you mention suggests this isn't necessary, but, if the windows aren't included in the lease, you could have a problem. When you come to sell a lot of the issue will be whether your buyer's solicitor thinks the replacement windows need consent from the HA. The difficulty, which is little understood outside the legal profession, is that nobody is going to spend thousands of pounds going to court to get a declaratory judgement as to the true legal position in a case like this.

I've had cases where I have been quite convinced that the other solicitor was talking rubbish, but if his clients believe him, then there is little that I can do about it. A buyer may pull out of a purchase because of this kind of legal confusion.

So, some of what I have to do now when acting for a buyer is raise points that I actually think are a bit silly, if only because I want to be able to answer a future buyer's solicitor - so we get me saying in a pre-contract report something like: "I asked this question and the seller's solicitor said such and such. I think they are probably right, but from experience I have to tell you that there are a number of solicitors out there who may not agree with this, and you may have difficulties when you sell..."

It is sad that this kind of thing happens, but it does, so you may end up having to get a letter from the HA saying either they give their consent or it is not needed. I wouldn't stir this up too much now, though. See what your solicitor says about the whole business first.

SootSoot

Thank you all for your responses, especially Richard Webster. The window situation has been playing on my mind for ages now, but my DH told me that as the HA has ignored it and not bothered to return my queries then I shouldn't bother so much with it either; 'the ball was left in their court'

Incidentally, the flat down the road also ex-council has replacement windows (which do not match any of the rest of the properties) and was sold in March 07, as has a flat in the next road which is currently on the market, too. Does this indicate that I should have no problem in getting retrospective permission, if needed at all?