Covenant Question

Realchucker

Good evening, I am in the process of selling my home and we are being held up by an issue on whether consent has been obtained from our local council for an extension. We built an extension which satisfied permitted development in 2004 and was carried out within building regulations. It was inspected throughout by a council building inspector and we received the required certification etc. This was provided to our solicitors and shared with the buyer’s solicitors. The issue lies with a statement in the deeds which says that written consent must be obtained from the council for any alteration/enlargement to the property. We provided the completion certificate and the covering letter from the council that was obtained but the buyer’s solicitors are maintaining this isn’t a sufficient written consent. If we pay for an indemnity policy this will satisfy them. Surely, the letter and certificate is proof that the council consented to the property being altered? Grateful for any advice and if people have had any similar issues and how it was resolved? Thank you.

davidmcn

Realchucker wrote: »

Surely, the letter and certificate is proof that the council consented to the property being altered?

No, the council's interest as the beneficiary of the covenant is separate from their interest as planning authority which is separate again from their building control responsibilities - even if it is the same council wearing three different hats. Your solicitor should have explained this to you by now.

It's very unlikely that the council would do anything about the breach of the covenant, but theoretically possible, hence the request for the indemnity policy. Which is a relatively cheap and quick way of getting rid of the problem.

Realchucker

Ok thanks for your quick response. We did not know this at the time and assumed when we applied to the council this would all be taken into account as part of the building/planning process. Looks like we should just pay for the indemnity.

da_rule

Realchucker wrote: »

Ok thanks for your quick response. We did not know this at the time and assumed when we applied to the council this would all be taken into account as part of the building/planning process. Looks like we should just pay for the indemnity.

There is a slight issue with indemnity in this case though, in that although the Council have not consented to the breach, you have corresponded with them (albeit a different department) and they may therefore be aware of the breach. This would potentially preclude you from being able to insure.

davidmcn

da_rule wrote: »

There is a slight issue with indemnity in this case though, in that although the Council have not consented to the breach, you have corresponded with them (albeit a different department) and they may therefore be aware of the breach. This would potentially preclude you from being able to insure.

I've been through something similar recently with an indemnity insurer, and they were happy with a clarification that nobody had been in touch with the relevant department of the council.

PasturesNew

Realchucker wrote: »

If we pay for an indemnity policy this will satisfy them.

Just do it.

They're a simple bit of paper, costing very little (£50-80?) that just nails it.

Except, this may be valid, so you can't buy one.

da_rule wrote: »

There is a slight issue with indemnity in this case though, in that although the Council have not consented to the breach, you have corresponded with them (albeit a different department) and they may therefore be aware of the breach. This would potentially preclude you from being able to insure.