Freehold garage conversion with restrictive covenant

burnt_burrito

We own a freehold townhouse on a managed estate and are looking to convert the integrated garage into a habitable room, It's quite a large estate so there are at least 10 others that have already done this over the years. 

The builder I'm in talks with is very familiar with the local building control office and will of course be doing everything properly and to building control standards/sign off so no concerns there. The problem I think I have is there's a restrictive covenant on the house and part of that limits external alterations without management company consent (written in 1996). The management company FirstPort have deferred me to the estate freeholder which is E&M.

"Not to erect on the plot or any other part thereof any building whether of a permanent or temporary nature or to carry out any external alternations to the original structure except such as shall be in accordance with the plans and elevations which shall have been approved in writing by the vendor or the vendors surveyors for the time being and whose proper and reasonable fees therefor shall be paid by the persons submitting such plans and elevations for approval."

From my understanding of the transfer document wording getting consent from E&M is unavoidable and I believe they want to charge a criminal £440 to say they're happy to proceed - I'm almost certain they will be happy to proceed at least. I have been meaning to go around the estate and ask if the others have obtained this (although it doesn't really matter what they've done) but I'm willing to bet no one has even thought about doing it. We've actually asked E&M for consent in the past which they've been happy to do freely via email so I'm not sure why they've suddenly started charging obscene amounts.

Am I right in thinking without that consent it would make it very difficult to sell though as any decent solicitor would read the above clear section in the transfer, spot that we've had a garage conversion during our ownership and then ask for the consent proof?

We were lucky enough to remove a hedge at the front of the property a few years back which means we've gone from a single driveway to a double driveway so won't be losing any parking over the original plan for the house so that shouldn't be a concern. 

I don't really want to leave it to chance that any future buyers have a poor solicitor so I'm prepared for the "You've just got to pay it" replies but I thought I'd check first! Especially if anyone here has done anything via E&M before. Thanks for any advice! 

gwynlas

It is a small price to pay in relation to the added value that you will create by gaining the extra habitable space

You will have documentary evidence that permission obtained when you come to sell. It is irrelevant if others have proceeded without this and might cause them problems in the future

Also be aware that you must have building control inspections and not just rely on your builder to complete to standards. Some councils allow other contractors to inspect on their behalf but again there are fees to be paid

subjecttocontract

Yes I've had property that required permission from E&M (Estates & Management ?) and I've dealt with FirstPort on a few occasions. This is one of the ways that the freeholders makes their income as freeholders. It's also important that owners don't change the look of the properties. I suspect they will have their buildings person go through your plans to ensure the finished work meets their requirements. If you don't get permission then it will likely be an issue when you sell and you will probably need to apply to them for retrospective permission......which will be even more expensive. Good luck.

Section62

burnt_burrito said:

...
We were lucky enough to remove a hedge at the front of the property a few years back which means we've gone from a single driveway to a double driveway so won't be losing any parking over the original plan for the house so that shouldn't be a concern. 
...

Have you checked the planning situation as well?  Retaining garages in use as garages and other external alterations (such as removing hedges/fences/walls) can be a planning condition, over and above any restrictive covenant.

burnt_burrito

gwynlas said:

Also be aware that you must have building control inspections and not just rely on your builder to complete to standards. 

Yes of course! Luckily the builder is quite familiar with these and does all the communication with building control, arranges visits when needed etc. I just pay the incurred £300 odd fee at the end.

subjecttocontract said:

I suspect they will have their buildings person go through your plans to ensure the finished work meets their requirements. 

I'm sure the builder will be thrilled to put together a plan for them ha. There are quite a few identical houses on the estate that have done the conversion so at least I can just grab a picture of one of those and say "This will be the final look". Luckily around the garage is render so it's really just swapping the door for a window that matches the other styles and then painting over the render to match the existing colour. They don't look really any more eye catching than the garage doors to be honest.

Section62 said:

burnt_burrito said:

...
We were lucky enough to remove a hedge at the front of the property a few years back which means we've gone from a single driveway to a double driveway so won't be losing any parking over the original plan for the house so that shouldn't be a concern. 
...

Have you checked the planning situation as well?  Retaining garages in use as garages and other external alterations (such as removing hedges/fences/walls) can be a planning condition, over and above any restrictive covenant.

I have not, the council have always distanced themselves from the private development (apart from refuse) as they obviously want little to do with it, they even refuse to collect any fly tipping as it's "private"! It would be quite cheeky for them to decide to have input but I guess I also wouldn't be to surprised, is there an obvious way to check? I did use the councils planning search for some postcodes that have done it and nothing is returned but they might have just been done without it. Nothing was noted about any planning restrictions when we bought the house a few years back.

burnt_burrito

The below is direct from the welsh govs website on planning permission for garage conversions. I guess an email to check if "permitted development rights have been removed" should suffice to get an answer on this. Not far off a grand in fees to different people just to convert part of our freehold property so we'll have to see what the building quotes come back as to determine if it's even worth it! :')

"Planning permission is not usually required, providing the work is internal and does not involve enlarging the building.

Sometimes permitted development rights have been removed from some properties with regard to garage conversions and therefore you should contact your local planning authority before proceeding, particularly if you live on a new housing development or in a conservation area.

You need to be aware of whether the permitted development rights have been removed from your property by the Local Planning Authority. If they have been removed, you must submit a planning application for the work."

Section62

burnt_burrito said:

The below is direct from the welsh govs website on planning permission for garage conversions. I guess an email to check if "permitted development rights have been removed" should suffice to get an answer on this. Not far off a grand in fees to different people just to convert part of our freehold property so we'll have to see what the building quotes come back as to determine if it's even worth it! :')

"Planning permission is not usually required, providing the work is internal and does not involve enlarging the building.

Sometimes permitted development rights have been removed from some properties with regard to garage conversions and therefore you should contact your local planning authority before proceeding, particularly if you live on a new housing development or in a conservation area.

You need to be aware of whether the permitted development rights have been removed from your property by the Local Planning Authority. If they have been removed, you must submit a planning application for the work."

Removal (or non-existence) of permitted development rights is one thing to check, but more specifically planning applications are almost* always 'conditioned' - there will be a list of conditions in the consent letter that have to be complied with.  For a housing development the list can be long and complicated but what you'd be looking for is something about the provision of 'x' parking spaces to be retained for the parking of motor vehicles and no other purpose (or words with a similar effect).  These conditions typically apply to each individual property as well as to the development as a whole. (*almost, because planning decisions should always have a condition for commencement, but sometimes that gets forgotten or may not be applicable)

If the development was built in the mid-1990's it is quite likely the planning consent won't be online - and usually would be a year or two before the development started on the ground.  There could be other subsequent planning applications for the property that remove/vary/add conditions.

One way of being sure - although it would cost you another fee - would be to apply for a certificate of lawful development.  The council checks whether the work you want to do needs full consent, and gives you a bit of paper you can pass on to a future buyer to confirm the development was lawful.

With regard to other people who have already converted their garages, there's no guarantee they have done so with all the required permissions... if it were me I'd think very carefully before mentioning other people have done the same when talking to the management company or the planners.  Rather than helping you to get yours approved, it might prompt unwelcome enquiries into what the others have done.

burnt_burrito

Section62 said:

Removal (or non-existence) of permitted development rights is one thing to check.

So the bad news is I think that this might be the case (to my surprise), I'll probably end up having to pay both E&M and the council to say they're happy with the new external look, great! Presumably months added to the process too. 

It looks as though all but one property on the estate has skipped the planning permission stage for their conversions but for that one I've found the approved application on the council website from 2014 and there's a document on there with the following comment "Mr X advised me that I needed planning permission due to my address and to send an application with my fee of £166. He advised there should be no issues as long as parking is not effected.".

That does fill me with hope in the sense that there should now be no reason mine would be rejected if we progress as ours would also have zero impact on parking. I think for £25 I can ask the council for advice and I'd like to think they should be able to answer the "permitted rights" question with some degree of certainty!

I did see the "certificate of lawful development" option but it sounds like that's half the cost of the usual planning fee but I don't understand it's purpose apart from giving a certain yes/no. If they say it's required do I then have to pay the whole planning fee again or is it the planning fee minus the LDC? If so the "less certain" approach of asking for £25 advice probably is best here.

With regard to other people who have already converted their garages, there's no guarantee they have done so with all the required permissions...

I'm almost certain most haven't and you can see why with all the faff involved! I personally can't be bothered with any extra stress when it comes to sell, much to my disgust at everyone wanting a piece of the pie for any changes to our property. I guess that's what you get with these new (or not so new in our case) build estates!

Mistral001

Never take advice from a builder on legal matters or Building Control Matters.  You and you alone are responsible for seeing that the extension is carried out in accordance with whatever covenant that applies and in accordance with Building Control Regulations.  If the builder gets it wrong. If there is a legal problem or a design problem, in court they will just say that they are not lawyers or design advisors, and the judge will agree with them and you will not have a case against them.

burnt_burrito

Mistral001 said:

Never take advice from a builder on legal matters or Building Control Matters.  You and you alone are responsible for seeing that the extension is carried out in accordance with whatever covenant that applies and in accordance with Building Control Regulations.  If the builder gets it wrong. If there is a legal problem or a design problem, in court they will just say that they are not lawyers or design advisors, and the judge will agree with them and you will not have a case against them.

Perhaps I'm not being clear, the builder is aware of the building control regs and will be working with building control to ensure sign off on completion. That doesn't mean they're going to just crack on, cross their fingers and pull a runner after payment. It means they're going to submit the request/plans before starting, check BC are happy and actually work with BC throughout the project resulting in sign off at the end, no surprises. He's said BC will visit at a couple intervals throughout the process to check they're happy before providing final sign off (and the builder getting paid) - a similar process to what we went through for an internal garage door a couple years ago.

The planning permission has thrown a spanner in the works though but I wasn't expecting the builder to know about that to be honest - it's not normally required for garage conversions by the sounds but it looks like it might be for us. I can manage that side of things along with E&M consent. It sadly sounds like I'll be at £1k of fees before starting!