Property buy: Breached restrictive covenant and lack of building control - Is it worth it?

Sandwich123

I am looking to buy a 1930s semi-detached property which has restrictive covenants. I have 2 issues that I need help with:

1.     Extension to house a toilet which was done at least 17 years ago (exact date not known)

The owners prior to our vendors have built a small extension downstairs to house a toilet. They don’t have the following:

·      Approval of the person who has the benefit of the covenant - this is needed for any changes to property plan/elevation and extensions

·      Don’t have council planning permission or building control approval. Our surveyor has not raised any safely/structural concerns about this extension.

 

2.     Chimney Breast Removal:

·      Ground floor reception chimney Breast has been removed again by owners prior to our vendors. It still exists in the bedroom on top of the reception. There is no building control documentation available for this. Our structural surveyor has recommended fitting of appropriate support (steel beams) after completion and getting formal building control approval from council. Will it be an issue if at this point the council then opens up the issue of lack of approvals when the chimney breast was originally removed years ago?

 

Question to members of this forum: Our sellers are ready to arrange indemnity insurance for the breach of covenant. Do we also need indemnity insurance for lack of planning permission & building control? Will it be a wise decision to proceed if these indemnities are put in place or does this seem too risky.

WIAWSNB

Hi Sandwich.

Who is the beneficiary of these restrictive covenants? Having presumably been written in the 1930's, do you think they are still alive? Does it mention their successors or anything like that?

You need to carry out due diligence, and be guided by your conveyancing solicitor, but - yes - I would have thought that an indemnity policy to guard against the covenant still being enacted by 'someone' should do the job.

For the chimney, since your surveyor has recommended having a steel beam put in place, I would get quotes for this and negotiate it off the asking price. It may be, once exposed, it is secure enough.

Would either of these things put me off buying an otherwise ideal property? No. But, diligence.

Albermarle

For the chimney, since your surveyor has recommended having a steel beam put in place, I would get quotes for this and negotiate it off the asking price. It may be, once exposed, it is secure enough.

Or alternatively after getting a price reduction, instead have the remaining chimney breast on the first floor, and the stack above it removed.
This may not cost much more ( maybe even less)? than having a steel inserted, and would mean the first floor bedroom would have more room. 

user1977

Does nobody have any clues about the age of the extension other than some time between the 1930s and 2008? Usually at least your surveyor can make an educated guess.

But in any event, after 17 years I think you've exhausted any reasonable likelihood of either the council or any beneficiary of the covenant being interested, so I would just get the indemnity policy and forget about it.

Building control are hardly likely to care about any historic lack of approvals if you're asking them for consent to do the sort of remedial work which they would have wanted of you anyway...

Sandwich123

Thank you WIAWSNB for the reply.

We have asked our vendors via our solicitors if they are aware of the beneficiary. We tried to google from our side there might be a company formed in 1930s which is still active. 

We are in the process of negotiating with our vendors regarding chimney breast support. 


We are worried more about the building control regulation historical breach when the chimney breast was originally removed. If we support the chimney breasts now according to the regulations and seek building control approval for it, would we still be subject to enforcement action for the historical breach for chimney breast removal which was done at least more than 17+years ago.

Will it make sense to ask the vendors to add building control indemnity in addition the restrictive covenant indemnity?

Sandwich123

Thank you Albermarle, we will check that out in due course.

Thank you user1977. Unfortunately our vendors bought the place as it is and not sure when the chimney breast was removed. Our solicitor is following up an outstanding statutory building works notice from 1998 on this property . But a copy is yet to be received so we are not yet sure what this notice was about. 

Thank you all for your advice. 

FreeBear

Sandwich123 said: We are worried more about the building control regulation historical breach when the chimney breast was originally removed. If we support the chimney breasts now according to the regulations and seek building control approval for it, would we still be subject to enforcement action for the historical breach for chimney breast removal which was done at least more than 17+years ago.

IF the council issued an enforcement notice, it would probably relate to inserting adequate support, or an outside chance that they would require the chimney breast to be reinstated. But as the work was completed 17+ years ago, it is well outside enforcement period (even if the council used current rules). An enforcement notice just isn't going to be issued.

Your (proposed) application to insert a steel would satisfy any enforcement notice, and it would also cover removal of the non-existent chimney breast.

theartfullodger

Depends on the price.  If it is cheap enough & more to cope with sorting this mess then, obviously, yes.  

But if it's priced as same as other similar hpuses without these issues, walk away.

Sandwich123

Thank you, FreeBear.

WIAWSNB

FreeBear said:

Sandwich123 said: We are worried more about the building control regulation historical breach when the chimney breast was originally removed. If we support the chimney breasts now according to the regulations and seek building control approval for it, would we still be subject to enforcement action for the historical breach for chimney breast removal which was done at least more than 17+years ago.

IF the council issued an enforcement notice, it would probably relate to inserting adequate support, or an outside chance that they would require the chimney breast to be reinstated. But as the work was completed 17+ years ago, it is well outside enforcement period (even if the council used current rules). An enforcement notice just isn't going to be issued.

Your (proposed) application to insert a steel would satisfy any enforcement notice, and it would also cover removal of the non-existent chimney breast.

Indeed. The 'time' element for BC enforcement has elapsed.
The only reason the council would become involved now is if there was a safety issue. In which case, it's still technically possible.
What are the chances?

Section62

WIAWSNB said:

FreeBear said:

Sandwich123 said: We are worried more about the building control regulation historical breach when the chimney breast was originally removed. If we support the chimney breasts now according to the regulations and seek building control approval for it, would we still be subject to enforcement action for the historical breach for chimney breast removal which was done at least more than 17+years ago.

IF the council issued an enforcement notice, it would probably relate to inserting adequate support, or an outside chance that they would require the chimney breast to be reinstated. But as the work was completed 17+ years ago, it is well outside enforcement period (even if the council used current rules). An enforcement notice just isn't going to be issued.

Your (proposed) application to insert a steel would satisfy any enforcement notice, and it would also cover removal of the non-existent chimney breast.

Indeed. The 'time' element for BC enforcement has elapsed.
The only reason the council would become involved now is if there was a safety issue. In which case, it's still technically possible.
What are the chances?

An inadequately/unsupported chimney breast on the first floor and above might be a good definition of a "safety issue".

OP, are you buying with a mortgage?  If so I'd think your potential greatest issue might be the mortgage co's view of the structural situation.  Indemnity policies don't stop chimneys falling down.  Also, it might be tricky to get buildings insurance if there is a known significant pre-existing problem.  No doubt some folk will tell you "if it hasn't fallen down yet it must be Ok", but that isn't true.

You do need to get to the bottom of what the "outstanding statutory building works notice" is about as well.