Checking that a property complies with planning control and Building Regulations requirements is now considered to be a part of a conveyancer’s duties on any home purchase.  Often, this is also one of the factors which can slow the conveyancing process down, as enquiries are made and checked and copy documents traced. Not all problems can be resolved by us, but we do our best.

We hope these notes will help our clients (both buyers and sellers) understand the main issues involved – buyers to understand why we “delay things” by asking apparently trivial questions about planning and building control, and sellers to understand why it is in their best interests for them to enable us to answer their buyer’s conveyancer’s own “trivial questions”.

Please note that, where a mortgage lender is intending to lend on the security of the property, their often very stringent requirements must also be met – they are very unlikely to agree to take any risk.

Planning permission and Building Regulations consents are separate issues and each is dealt with by a separate department within the council.

Planning Permission

Most building work or change of use of a property since 1st July 1948 requires planning permission to be valid. There are various exceptions for (eg) some small extensions, but you should never assume you can make any more such changes as sometimes the ‘permitted development’ rights have been ‘used up’. We therefore need to know all building works or changes
(a)     that have been made to the property already (we will only know of these if you tell us or permissions/consents have in fact been obtained for them) and
(b)     (if we are acting for you as the buyer) that you plan to make,
so that we can check them out and ensure all is in order.

Please remember the enquiries we make on our buyer clients’ behalf are limited to the property itself and do not cover any adjoining or adjacent property (though there are optional searches you can ask us to carry out to cover these aspects) and we do not normally physically inspect the property.

Most planning permissions contain conditions. We need to check these as, if any condition has been breached in the last ten years (not ten years from the date of the permission) or if the condition is “on-going”, then the local planning authority can still take enforcement action against the owner. When we have a copy of the permission, we will identify any “problem condition” – the seller will

need to be able to show the condition has not been breached; the buyer will want to be reassured that the condition has not already been breached and will not be breached by their intended use of the property.  If there is a problem, do NOT at this stage raise any enquiries with the council – that may prevent the issue of indemnity insurance cover.

Special rules apply if the property is a Listed Building or in a Conservation Area.

Not all sellers have copies of planning permissions, etc, in their possession and often council records are not complete. This does not resolve the problem, however: many planning permissions cover more than one property and it could be the case that, while the council may have lost their copy, a neighbour may still have a copy challenge any alleged breach of planning control.

Building Regulations.

These relate to the way work is done to a property and apply to most projects, briefly -

• The erection or extension of a building
• Plumbing, gas and most electrical work
• Alterations affecting the structure, fire safety, access to or use of buildings
• Underpinning foundations and inserting cavity wall insulation
• Work affecting the insulation, energy status or energy performance of a building.

Breaches of Building Regulations can usually be enforced by the council up to two years after the breach – but a council can at any time apply for an injunction for the removal or alteration of any work, where public safety is at risk.

It is sometimes, but not always, possible to obtain a certificate from the council or an approved inspector) confirming that work complied with the Building Regulations at the time.

Often, compliance with the Building Regulations is self-certified by contractors under approved scheme, such as Gas Safe Register (formerly CORGI), FENSA (windows), NICEIC (electrics), etc. Any DIY works by an owner would probably not be satisfactory, unless formally “signed off”.
Where evidence of compliance with Building Regulations is not available, it may be possible to get the work inspected by the council with a view to issuing a regularisation certificate. However, the work needs to comply with up-to-date standards (not those in force at the time the work was done) and to be exposed for inspection.

A preferable alternative, therefore, is to take out indemnity insurance cover (for a modest single premium) against the risk of enforcement action by the council. However, this insurance does not cover the risk that the work might be defective: the buyer should therefore have any uncertified work inspected by a suitable expert to check it is safe.

Conclusion

Accurate knowledge is the only satisfactory solution to any possible issues.  This can be gained from a suitable survey inspection, coupled with full information and documentation from the seller or the council, before exchange contracts. Lenders do not always carry out a physical inspection of the property you are buying and, even if they do, it is valuation for their benefit only – not a full survey – and can probably not be relied upon if there is an undiscovered problem.

Whether you are a buyer or a seller, please therefore tell us of all changes you think have been made to the property or which (as a buyer) you plan to make. Buyers should satisfy themselves by inspection and other professional advice that the property and any changes already made are structurally sound and have been correctly carried out, especially if evidence of compliance with Building Regulations is not available.

If you have any concerns do ask us: 01580 767100.

Feel free to download the text of this blog in our PDF Planning and building control note

Using the online document registration service has some mild benefits in terms of speed and security, but there is certainly room for further progress.  First, the online system can (currently) only be used for applications that do not involve a plan; so transfers of part of the land in a title cannot be submitted this way, nor can searches of land defined by a plan. I expect this limitation to be removed in due course, once the Land Registry can cope with relatively large (in terms of bytes) documents being uploaded. I assume this restriction also means that the online system cannot be used for first registrations, where the risk of sending original pre-registration documents by post or DX can be significant. Again, registrations of leases are not allowed at present, but I expect will be fairly soon; whether the Land Registry has the stomach to analyse scanned copies of pre-registration deeds remains to be seen.

The other, more galling, restriction is that the online submission process is really only the online delivery of scanned paper copies of documents, including Land Registry application forms.  However, if I can get my forms software supplier to allow forms to be saved as PDFs, instead of either printed off or saved in a format, this limitation could be eased: instead of printing, scanning and submitting the application form – which is understandably required for document (such as transfers) that need to be signed before they are scanned – the application form could be completed on screen, saved electronically as a PDF and uploaded for online submission. True, the application form does, strictly, need to be signed, but I reckon the Land Registry could waive that requirement for online submissions.

It would be better still if the application form could be completed online as part of the online submission process, but that is for the future.

Meanwhile, it will be interesting to see how quickly the Land Registry deal with my online submission, compared to their already impressive turnaround time for submissions by post and DX.

Do it yourself, if you can

As you will see from our web page on the subject, we think it perfectly possible for individuals to make their own LPAs without a lawyer’s help – the forms can be downloaded here.

The special offer

However, partly to encourage people to make LPAs – because they are a Good Thing – and partly for staff training purposes, we have decided to make a special offer: until further notice, we will help qualifying clients make new Lasting Powers of Attorney for a fee of £100 + VAT per power, instead of our normal fee of £200 + VAT per power.

Help for the community

And there’s more: to help the Tenterden & District Chamber of Commerce replace the High Street tree lights that have gone astray, we will donate £25 from our fee to the chamber of commerce.

Terms and conditions apply  – of course!

To qualify for the special offer, the client must live within the area covered by the chamber of commerce.

Our Office Manager, Richard Watkins, will take any routine meetings and prepare the paperwork under my supervision; in this way, he will gain ever more experience in preparing the sometimes baffling forms!

Please note that this offer does not include applying to register the power(s) of attorney: we can help with that, but for an extra fee – £200 + VAT per power of attorney; the Office of the Public Guardian also charges a registration fee of £160 per power of attorney.

To take up this offer …

… contact Anne or Richard on 01580 767100 to make an appointment or discuss your requirements over the phone

2: Answer the buyer’s conveyancer’s questions (this is where we can REALLY help)

3: Decide on a moving date

What could be simpler?

OK – it is rarely as simple, but it is an ideal we strive for, and we can help out with any title problems and often with practical problems, too

- Justin

Over the past few weeks we have dealt with a number of firms who (according to the Law Society) are members of CQS, but they don’t indicate that on their letterhead or on their website or in their correspondence this seems tantamount to hiding their CQS membership. As the scheme (again, according to the Law Society)-

“provides a recognised quality standard for residential conveyancing practices. Membership achievement establishes a level of credibility for member firms with stakeholders (regulators, lenders, insurers and consumers) based upon:

• the integrity of the Senior Responsible Officer and other key conveyancing staff
• the firm’s adherence to good practice management standards
• adherence to prudent and efficient conveyancing procedures through the scheme protocol

This scheme creates a trusted community which will deter fraud – year on year we will drive up standards.”

Yet more and more CQS members seem to want to hide the fact of their membership.

So why join?

Simple answer – to get (or stay) on lenders’ conveyancing panels: more and more lenders are, it seems, sold on the Law Society’s marketing spiel that membership of this scheme somehow helps combat mortgage fraud – though in truth it cannot do any more than the Solicitors Regulation Authority and the anti-money laundering legislation already does in this connection – or helps prevent negigence – when it does nothing at all in that respect.  As a result, more and more lenders are insisting that solicitors who are to act for them in handling mortgage work must be CQS members, as though that were some magic bullet against fraud or negligence.  Please note that licensed conveyancers are not allowed to be CQS members, yet lenders are happy to use them despite this, so CQS membership is (logically) irrelevant.

However, the Law Society promotes CQS to lenders as somehow protecting them (and thereby keeping Law Society staff in employment) and the lenders, who are not daft, are happy to appear to go along with this, presumably for reasons of their own.

So why hide your CQS membership?

This is speculation, as no firm that hides its CQS membership has admitted this is deliberate – presumably this is just dreadful marketing on their part, then.  However, I speculate that the CQS scheme, which requires compliance with the Law Society Conveyancing Protocol which in turn requires the use of the Law Society’s conveyancing forms (including property information forms) and forbids the use of standard additional enquiries, is simply too restrictive. To take property information as an example, making the use of the Law Society’s forms compulsory and prohibiting the use of standard additional enquiries means that, until the Law Society’s forms are updated, buyers solicitors who are CQS members should not (strictly) be raising standard enquiries about, for instance -

• whether the seller knows of any Japanese Knotweed at the property
• whether there are solar panels installed and, if so, whether they belong to a third party
• whether there have been drainage problems in the past
• whether the seller has signed up to the Green Deal, which the buyer would inherit with the property

All these are perfectly reasonable questions to raise – but CQS members should not raise them

Having their cake and eating it

The result seems to be that some firms want it both ways: they want the practical benefit of being CQS Members – the ability to do more work for more lenders – but without accepting the burdens. So they confirm to the lenders they are CQS members, but don’t tell their opposite numbers in the transaction, so they can get away with breaking the CQS rules.

Does it matter?

I think it does. First, it is somewhat dishonest, and who wants that with a solicitor?  Second, it is hypocritical: if they don’t like the restrictions of CQS membership, they should say so, and either get the scheme improved or get it abolished. Either would, I think, be better than the current situation, where an ineffective scheme costs firms money without delivering them or anyone else any real benefit, and is used as a figleaf, preventing the problems that do exist being properly addressed.

As is probably obvious from the above, I have not joined CQS. I think it is a waste of time and money, but I do resent being sometimes treated as an inferior solicitor because I am not a CQS member. The truth is that I thought about it more carefully than most CQS members seem to have done and decided it was not a good scheme – a view that those who are now hiding their membership seem now to be taking, too.

- Justin Nelson

Anyway, why am I “crotchety”? Let me tell you.

Conveyancers (at least, residential conveyancers) do not seem to advise their clients any more – they just act as postboxes.

One firm recently accidentally emailed us an email that was intended for their purchaser client, “reporting” on pre-contract search results. In fact, they did not report at all: there was no attempt to summarise, analyse or contextualise. They (literally) said, “We attach the results of the local, water, chancel and environmental searches made by us on your behalf. Please contact the writer if you have any queries.”  Ignoring the impersonal nature of the email in what should be a personal relationship, the solicitors were simply not doing what is a large part of their role, which is explaining the results of the searches and highlighting any issues that might arise from them. They had presumably satisfied themselves there were no obvious problems, but did nothing at all to satisfy their client there were no problems, nor to involve them in the conveyancing process, even though they were the ones paying for it.

Another firm became so hung up on minor typing errors in the Land Registry title registers, insisting we correct them before they would report to their clients with the contract, that they completely overlooked the fact that their clients were buying a share of the freehold of the building that contained the leasehold flat their clients were to move into: we had to prepare the paperwork for the transfer of the freehold title,as they had overlooked it, but could not complete without it.

Other clients of ours were buying a house to rebuild it. Our searches showed that the garage was built over a public sewer, with no “building over agreement” in place. Instead of advising their client to contribute the £900 cost of applying for a building over agreement – so that our clients would know they could safely rebuild – the seller’s conveyancers allowed the agents (who wanted exchange of contracts at any cost, so they could get their commission) to try bully the seller into agreeing a £10,000 price reduction “to avoid delay”. Not in the best interests of either buyer or seller, but apparently that is not what those conveyancers thought was part of their job.

All-in-all, it is a series of examples of “dumbing down” by conveyancers (though these examples all involved solicitors, licensed conveyancers are not exempt). Instead of seeking to provide a “value added” service, and demonstrating their usefulness, many firms seem fixated by the need to commodify and speed up the transactions as much as possible.

More and more, it seems, solicitors in particular (this does not apply, I think, to licensed conveyancers) behave as though clients are there for the solicitors’ benefit, rather than the other way around, and try to force clients to accept the process that suits the solicitors, instead to trying to provide value to their clients.

I believe we at Nelsons do not fall into that trap – if any clients disagree, please tell me – but it does make me crotchety.

- Justin

Yes, in theory a joint owner who is a tenant in common can mortgage (or otherwise deal with) his or her share – assuming there is no specific agreement to the contrary.  However, most lenders will refuse to lend on the security of a share in the property: they will want the whole property mortgaged to them because it is much easier to sell a house than a share in a house.

In theory, if the co-ownner agrees, the whole property can be mortgaged to the lender but with the co-owners agreeing that the debt will only “bite” on the relevant owner’s share; the difficulty there is ensuring that the value of the debt (plus interest, costs, etc) never exceeds the value of the relevant share. Except for relatively low value loans, therefore, it is not a practical solution.

Most was of the crime/thriller sort – a great way to wind down:

• John Harvey (Good Bait)
• Michael Connelly (The Black Box)
• John Grisham (The Litigators)
• Ian Ranking (Standing in Another Man’s Grave) – always very good value
• Christopher Brookmyre (Jaggy Splinters – a selection of short stories, including the hilairious “Playground Football” – and When the Devil Drives)
• J K Rowling (A Casual Vacancy – better than I had expected)
• Terry Prathett (A Blink of the Sccreen – more short stories); I confess, I have never really enjoyed Pratchett’s books, though I realise they are hugely popular
• Ian M Banks (Consider Phlebas – about time I started the Culture novels, and I was not disappointed)
• Peter James (Not Dead Yet)
• Ian Sinclair (White Chappell, Scarlet Tracings)
• Jerome K Jerome (Three Men on the Bummell – I needed something for light relief)
• Dominion by C J Sansom

The most memorable book was non-fiction: Neil Postman’s “Amusing Ourselves To Death”, the main theme of which is that television inevitably trivialises public debate by treating it all as show business. Well worth a read, and readily available via the behemoth that is Amazon, in both paper and Kindle versions: http://amzn.to/TEeimk

In fact, I think I will Tweet quotes from it over the next couple of weeks