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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25411
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, I have a property which when I bought I took an indemnity

Resolved Question:

Hi, I have a property which when I bought I took an indemnity policy as the deeds said that there was no property build on the land. I now want to sell this and am having difficulty. If something happened to the property what are my liabilities? It is a buy to let.
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Could you kindly clarify a little more when you say the deeds said there was no property built on the land please?

Joshua :

Do you mean the property had no planning permission?

Customer:

Yes correct there was no property on the deeds of the land. The property was built on the land without planning permission and this is how I purchased it I did purchase an indemnity policy for this.

Joshua :

THanks. How many years ago was the property constructed?

Customer:

Around the 70s

Joshua :

Thanks. Finally what difficulties are you having in selling precisely? Are these difficulties related to the above or entirely separate?

Customer:

yes and also property now converted to two flats and I did not get building regs - so double whammy. I am also concerned if something like a fire happened and there was tenants in it what are my liability. How is the best way to sell this or rectify the problem. Indemnity policy does not allow me to approach the council otherwise policy becomes null and void (if council tell me to pull it down - I dont think they will but).

Joshua :

How long ago did you convert to flats?

Customer:

approx 10 years

Joshua :

thank you. based upon what you say, planning permission would be required for the original construction of the property and also for your conversion of the property into flats - the conversion would have required planning permission for change of use. In addition, the conversion would have required as you say building regulation approval.

Joshua :

Failure to obtain planning permission can be enforced by the local authority for a period of up to 4 years and building regulations can be enforced by the council for a period of up to 12 months following completion of the works in question

Joshua :

accordingly, based upon what you say, providing if challenged you could conclusively prove the date the conversion took place, the council is well out of time to take enforcement action under failure to obtain planning permission or building regulation approval

Customer:

ok So I still need planning permission for the building?

Joshua :

accordingly, the indemnity policy you have in respect of lack of planning permission or building regulation approval is of limited value at this point. The only caveat to the position is that the 12 month period for enforcement of building regulation breaches can be extended if the council can demonstrate that the work in question represents a danger. If there is any concern in this respect whatsoever, you could consider a questing a surveyor to carry out an inspection of the conversion work to confirm it is not dangerous

Joshua :

all of the above said, a buyer may be uncomfortable in buying a property that lacks building regulation approval. A cautious buyer could be uncomfortable in purchasing a property that lacks planning permission they stricter speaking, for the above reasons, legally neither is of legal significance at this point however this does not stop cautious buyers being cautious nevertheless

Joshua :

if you are finding the position is putting buyers off, you may consider applying to the council for a certificate of retrospective consent. This can be done both in respect of planning permission and building regulation approval as you wish. In respect of planning permission, providing you can demonstrate that the works are more than four years old, the council must issue a certificate of retrospective planning consent - this is known as a certificate of lawful use. in respect of building regulations, the work is inspected based on building regulations in force at the time the work was carried out and the council will issue a retrospective certificate unless any issues need to be addressed in order to be compliant.

Joshua :

the remaining issues are that in order to sell flats, you will need to ensure that leases are in place as it is not generally possible to sell the freehold flat because mortgage lenders will not accept them. Providing you own the freehold, if leases are not in place, this is relatively simple to resolve by asking your solicitor who acts for you in any sale to prepare leases for the flats as part of the conveyancing process

Joshua :

accordingly, because of the above, there is no strict legal need to apply for retrospective consent either the planning permission or building regulation approval because subject as above, the council can no longer take enforcement action because of the passage of time however if you are finding the lack of formal consents for planning permission or building regulation approval is hindering your sale prospects, you may wish to consider applying for retrospective consents from the council in the above matter.

Joshua :

Is there anything above I can clarify for you?

Customer:

Hi, I think your last para sums it up. The policies I have are of little value given that the time has elasped for the council to tell me to pull the property down and it should be ok for me to approach the council and ask for retro consent. Correct?

Joshua :

In deed - providing, and this is important, that you can demonstrate on the balance of probability when you carried out the conversion work. Remember, the council will not simply issue a retrospective certificate on your say-so alone and it will be for you to prove on the balance of probability the dates the conversion work was carried out. presumably you have invoices or tenancy agreements or some other form of documentation that will demonstrate that it was carried out at least more than four years ago

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

thank you thats great. Will sign off. thank you for your help. Regards

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

will do. thank you

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