The following paragraphs are designed to provide practical, easy to understand information on residential property related issues. They should be used for guidance only and are not a substitute for obtaining professional advice.
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Where a surveyor has recommended further investigations be carried out, these should ideally be finalised, prior to a legal commitment to purchase. Depending on the results of the investigations, repair or replacement works may be necessary. The cost of any such works should be determined by obtaining competitive estimates from suitable contractors. Depending on the estimates/costs, the buyer may decide to withdraw from the purchase or seek a reduction in the purchase price, to reflect the likely costs of any necessary repair/replacement works. Typically these further investigations will be for dampness related issues, suspected progressive structural movement, Japanese Knotweed infestation etc. If the further investigations and the costs of any necessary works are not determined, prior to a legal commitment to purchase, the buyer runs the risk of paying for the works themselves after purchase. They will also have missed the opportunity of trying to negotiate the purchase price downwards to reflect the costs of any necessary works.
Where a surveyor has recommended further investigations be carried out, these should be arranged by the buyers themselves. It is not uncommon for the estate agents selling the property to offer to arrange the further investigations. However as they are acting in the best interests of the seller, there is the potential for a conflict of interest. Similarly, the sellers will often offer to arrange further investigations. However, as the results of the investigations will likely be addressed to the seller, the buyer will probably not be able to rely on any reports produced or guarantees provided. It is always best for the buyers themselves to arrange their own further investigations.
Statutory consents refer to consents that must legally be obtained before certain works/changes of use are carried out. In a residential context, these will typically be the requirement for planning permission for extensions and loft/basement/garage conversions. Planning permission will generally be required for all external works/changes of use that will alter the external appearance of a building (but subject to limited permitted development rights). The purpose of the planning system is to control the use and development of land and buildings in the best interests of the local community and the wider public. Building regulation approval will be necessary for most construction works (refurbishment as well as new build), both external and internal, and is designed to ensure that construction work meets the minimum standards set out in the building regulations. This is to ensure the health, safety and comfort of the occupants and the wider public. Certain works that may not require planning permission may require building control approvals. Typical examples would be the creation of an open plan layout (where an internal wall is removed) and the removal of chimney breasts. Properties located in Conservation Areas or those that are listed, will require special planning consents/building control approvals. In the case of Conservation Areas, the restrictions cover not only buildings but also the environment that they are located in (eg boundary structures and trees). The local authority’s planning and building control departments will be responsible for providing these statutory consents. Failure to obtain the necessary consents, can result in enforcement action being taken by the local authority.
The Party Wall Act 1996, imposes a legal duty on home owners to consult with their neighbours, before carrying out works to party walls or certain boundary structures. Party walls are those that are shared between and divide two or more properties. The purpose is to encourage consultation between neighbours who then have the opportunity of assessing the condition of the party wall/boundary structure, prior to the works being carried out. Any changes/damage caused after the works are completed, can then reasonably be attributed to the construction works and can form the basis for compensation. Typically, Party Wall Agreements will be necessary for the construction of an extension, loft/cellar conversions and the removal of chimney breasts.
There are other non-statutory consents that property owners may require, before carrying out works or alterations to their property. Leaseholders will usually need the consent of the block managers and in some cases the freeholder, before carrying out such works as window replacements, external decorations, the fitting of satellite dishes etc. Some works, such as the conversion of a loft space, may require the payment of a premium to the freeholder, to ensure their consent. Even owners of freehold houses can be subject to estate management restrictions. Typically the houses involved would originally have been of a leasehold tenure that were subsequently converted to a freehold tenure. The estate management restrictions however remained in place along with the requirement to pay a service charge for the upkeep/maintenance of shared estate roads, communal landscaped areas etc. These restrictions are often in place in privately constructed housing estates built in the 1960/70’s. The restrictions can typically prevent the conversion of integral garages to habitable accommodation, limit the height of garden boundary structures etc. The restrictions (for both leasehold and freehold properties) are in addition to the normal requirements for obtaining any necessary planning consents and building control approvals.
Unauthorised works refer to works carried out without obtaining the necessary statutory consents, usually planning permission and/or building control approvals. Typically the works will be extensions, loft conversions, the creation of open plan layouts, removal of chimney breasts etc. The works could also involve unlawful changes of use. If the local authority becomes aware of the unauthorised works (often only after concerned neighbours contact them), then depending on the nature of the unauthorised works, the local authority may take enforcement action to remove or otherwise modify the works in question. Where relatively minor unauthorised works are concerned, the local authority may give retrospective consent to the works, provided that they are satisfied, that the works are compliant with statutory requirements. This may involve some exposure works and a fee will be payable, all costs being borne by the property owner. In other cases, where a certain period of time has elapsed since the unauthorised works were completed, the local authority may be time barred from taking enforcement action. In the event of a property sale, where unauthorised works are discovered (typically by a surveyor carrying out a valuation/condition survey on behalf of the buyer), it is not uncommon for the sellers legal adviser/conveyancer to propose that an indemnity insurance policy be put in place, to cover against the risk of any future enforcement action being taken by the local authority. However these indemnity insurance policies are very limited in scope and are probably only suitable for relatively minor works such as chimney breast removals or alterations to window/door openings. However even in these cases, the surveyor’s recommendations should be followed. For example the remaining parts of a chimney breast in a roof space may need additional support to prevent possible collapse. Indemnity insurance policies would not normally be suitable for more extensive works such as extensions and loft conversions. From a surveyor’s point of view, the main risk from unauthorised works, is not the possibility of future enforcement action being taken, but the risk that the works may not be compliant with the minimum requirements of the building regulations, and as such could pose a health and safety risk to the occupants and the wider public. Apart from the above risks, unauthorised works are likely to cause future problems when the property is sold, which can cause delays in a process where time is vitally important. From a buyer’s point of view, it is vital that suspected unauthorised works are identified at an early stage, so that further legal queries can be made. In the absence of consents, further investigation/exposure works may be necessary, possibly involving the local authority. The buyer will then be in an informed position and can decide whether or not to proceed with the purchase.
In order to carry out some further investigations, it will be necessary to expose hidden parts of the property. Such exposure works will often cause localised damage. Typical examples would be where floor boards are pulled up to inspect the underfloor timbers for rot/decay or cutting a hole in a ceiling to inspect the roof space above. The seller will be concerned that the exposure works may reveal defects that could result in the buyer withdrawing from the purchase or seeking a reduction in the purchase price. They will also worry about any damage that may be caused by the exposure works. For these reasons, a seller will often not consent to the carrying out of further investigations. The buyer is then left with the options of either withdrawing from the purchase or progressing with the sale and taking the risk that further investigations (carried out after the purchase is completed) will not reveal significant defects. However this latter scenario could prove very costly in the event that significant defects are subsequently revealed.
The costs of construction/repair/replacement works will depend on the demand for construction materials and construction services. As a general rule, demand is highest in good economic conditions and vice versa in poor economic conditions. Where construction/repair works are necessary, estimates should be obtained from competing contactors, based on the same work design/specification. This will allow cross comparisons to be made on a like for like basis.
Most residential buildings will be affected by some form of movement at some time in their life. Movement is generally categorised as either being historic or progressive. Historic movement is generally not of particular concern, as its effects (typically thin cracks less than 3mm wide or minor bulging of external walls) can be remedied relatively easily. Progressive movement however, is a very serious defect and can be expensive to remedy. The cause of the movement is ongoing and if left, it will eventually result in structural failure of the building. It will be essential to determine the cause/s of the movement and carry out necessary remedial works.
Subsidence is the technical term used to describe the movement of foundations due to the removal of support from the adjoining ground. The resulting movement can cause either full or partial structural failure of the wall above (often evidenced by tapered cracks above ground level). There are various causes of subsidence, including landslip, mining, tunnelling and leaking drains. However the most common cause in London and the South East, is desiccation (drying out) of clay sub-soils. Clay will shrink in volume if its moisture content is reduced. This typically occurs when a relatively dry winter is followed by hot, dry summer weather, causing a lowering of the water table in the ground. Desiccation of clay sub-soils is also caused by the roots of trees and hedges sucking up large volumes of water from the clay below. Most clay related subsidence occurs when hot, dry summer weather is combined with the growth of nearby trees/hedges. The problem is exacerbated by the inadequate, shallow foundations used in older buildings. In most cases, clay related subsidence can be remedied by the full or partial removal of nearby trees/hedges. It may also be necessary to repair/replace any nearby defective drains. Only in exceptional cases, will it be necessary to replace the foundations, by full or partial underpinning.
One of the main causes of structural movement is clay related subsidence. As indicated above, one of the contributing factors in this type of subsidence, is the presence of trees/hedges close to buildings. The roots suck up large volumes of water, thereby drying out the clay sub-soil, causing it to shrink in volume. The amount of water sucked up by the roots will depend on the type of trees/hedges, their age/size and proximity to the building. Generally broad leaved deciduous trees suck up more water than coniferous trees. Oak, Poplar and Willow trees are particularly thirsty. Young trees/hedges will require less water than older more mature trees/hedges. However, even small trees/hedges, if not regularly pruned/managed, will eventually grow and could cause future problems. The proximity of the tree/hedge to the building will determine whether or not the roots are likely to be within influencing distance of the buildings foundations. As a general rule, the tree/hedge roots will spread a horizontal distance of approximately one and a half times the vertical height of the tree/hedge. Apart from contributing to subsidence in clay sub-soils, trees/hedges can also reduce daylight entering a building, while full or partial collapse of large trees in high winds can cause structural damage. Finally tree/hedge roots can interfere with drainage pipes and other underground services. Problems often occur where trees/hedges growing on neighbouring land are suspected of causing damage. Consultation with the adjoining owner/occupant will be essential in order to agree a strategy. Once alerted of the possible risks posed by trees/hedges growing on their land, failure of the land owner to act in a reasonable and timely manner, could result in their being liable for any damage later caused by their inaction (under the law of private nuisance).
There are two types of drains, those that dispose of surface water (eg from roofs, hard paved areas) and those that dispose of foul waste water (from bathrooms and kitchens). In older buildings, there is often a mixed use system, where the surface water is used to flush away the waste materials from the toilet, bathroom and kitchen. Due to their age, older drainage pipes are often defective and leak. Leaking drains close to foundations can cause a swelling of the nearby sub-soil if it is of a clay type (known as ground heave) which can damage solid ground floors. Leaking drains can also result in localised subsidence if the nearby sub-soil if of a gravel/sandy type (as the finer particles are washed away by the leaking water/liquid). In areas with a chalk sub-soil (which is chemically alkaline), leaking surface water drains can cause localised subsidence, as rainwater is slightly acidic. Leaking drains will also attract the roots form nearby trees/hedges, which can damage the drain further as the roots grow. Even new drains or older drains in good condition can be damaged by the roots of nearby trees/hedges. A CCTV survey of the drains can usually identify any leaks or other defects, with the affected drains being repaired/replaced as deemed necessary.
Apart from the obvious risk of flooding in coastal areas, the main risk of flooding to London and the South East is from rivers, groundwater saturation, surface water run-off and leaks from water mains pipes. Apart from the Thames, there are various other smaller rivers running through London and the Home Counties. In times of heavy and prolonged rainfall, these rivers can burst their banks causing flooding to nearby land/buildings. River flooding can be exacerbated by groundwater saturation, where the ground is unable to contain and disperse rainwater due to its sheer volume, which results in the groundwater level (or table) rising. Any additional rainwater cannot be absorbed and will flood the land above. Surface water flooding (often referred to as pluvial flooding) is caused by sudden, heavy rainfall (typically summer thunder storms) falling on impervious paved surfaces (such as roads, hard paved parking areas). The surface water drainage systems are unable to cope with and disperse the large volume of rainwater, causing flooding to nearby land/buildings. Leaking water from burst mains water pipes can cause flooding to nearby land/buildings, as it can take several days for the affected water main to be repaired/replaced. Properties in low lying areas or at the base of a hill will always be at a greater risk of flood damage than properties on more elevated sites. Similarly, any below ground level accommodation such as basement conversions and cellars will be more prone to flood damage. The Environment Agency’s flood risk website can be useful in assessing the flood risk of a particular location, by inputting the full postcode of the property in question. However due to climate change, forecasting models based on past flooding events, may not prove very accurate. They should be used for guidance only.
Water in one form or another is probably the most significant cause of decay to the external and internal fabric of buildings. There are many causes of dampness. These are often referred to as rising dampness, penetrating dampness, bridging dampness, condensation and dampness caused by internal leaks from sanitary/plumbing fittings or pipes. In each case, the cause/s of the dampness will need to be identified and suitable repair/replacement works carried out to prevent further dampness. In addition, it will often be necessary to carry out repair/replacement/redecoration works to the external or internal fabric of the building that has been damaged by the dampness. If dampness defects are not remedied, they will only get worse and the future repair costs will be even greater.
Rising dampness is where dampness rises up through the walls (both external and internal) of a building, by natural capillary action. In modern buildings (post 1950), this defect is prevented by the use of effective damp proof courses built into the base of the walls. However in older buildings, a horizontal layer of slate was used instead. With age, slate becomes porous (after approximately one hundred years), which allows dampness to rise up in the wall. This dampness can then cause rot/decay to nearby floor and other timbers and damage plastered wall surfaces. This defect is usually remedied by drilling a series of holes to the base of the affected wall/s and pressure impregnating the wall with a silicon solution, which then sets to provide a horizontal waterproof barrier. The damp affected internal plaster is removed and replaced with a special plaster. An inspection of any damp affected floor or other timbers should also be carried out at the same time, as it may be necessary to treat or repair/replace any timbers affected by rot/decay. While this method of remedying rising dampness defects is widely used and is accepted by most mortgage lenders, it is not always successful and much depends on the quality of the workmanship.
Penetrating dampness is dampness that penetrates through the external envelope of a building, causing dampness to internal surfaces. This dampness can cause rot/decay to nearby internal timbers and damage internal plasterwork. Typical examples are dampness caused by leaking roofs or defects to external walls, including defective external wall rendering, defective brickwork pointing, leaking rainwater fittings and rot affected external timbers (fascia/soffit boards, window and doors). Flat roofs are particularly prone to leaks. Older buildings (typically pre 1950) were mostly constructed using solid external walls, as opposed to modern buildings which are usually constructed using cavity walls. As solid walls do not have a central cavity to protect against water crossing from the outside face of the wall to the inside face of the wall, they are very susceptible to penetrating dampness. Accordingly external maintenance of solid walls including associated fittings and wall openings is essential. Remedial works will involve external repairs to prevent further penetrating dampness followed by internal repair/redecoration works. Where internal timbers have been (or are suspected of being) in contact with damp affected walls/ceilings/chimney breasts, a precautionary inspection of the affected timbers will be important. The reason for this is that the dampness combined with the heat from habitable areas, may have allowed rot/fungal decay to develop in untreated timbers (especially in unvented parts). This inspection may require exposure works.
Bridging dampness is where dampness crosses over the damp proof course in the base of an external wall, usually due to high external ground levels. This dampness can then damage internal timbers and wall surfaces. The building regulations recommend that there is a minimum vertical distance of 150mm between the level of the damp proof course in the base of an external wall and the top of the external ground level below. This distance is considered sufficient to prevent the possibility of dampness crossing over the damp proof course. However, when property owners lay new hard paving near external walls, they will often lay the new paving directly on to the top of the existing paving/ground level. Over time different owners will change the external ground levels resulting in the external ground level rising relative to the damp proof course in the wall. The raised ground levels can also interfere with the operation of airbricks/sub floor vents, resulting in sub floor ventilation being reduced or removed altogether. Sub floor ventilation is vital in older buildings with untreated timber floors, as it prevents condensation dampness affecting the timbers. The combination of bridging dampness and reduced sub floor ventilation, can cause significant rot/decay to affect the internal sub floor and other timbers in older buildings, as the timbers are unlikely to have been pre-treated to guard against rot/fungal growth or wood boring insect infestation. To remedy this defect, the external ground levels need to be lowered or alternatively a so called French drain can be used. It may also be necessary to replace existing sub floor vents or install additional vents (one for every linear meter of external wall is recommended).
Condensation is the technical term used to describe the change of water in vapour (gas) form into water droplets (liquid form), when the water vapour comes into contact with a cold internal surface. Typically the cold internal surface will be a cold external wall or a single glazed window. The droplets will cause damp staining to surfaces which can then allow the growth of a black coloured fungus. To remedy this defect, it will be necessary to increase ventilation and heating. The increase in ventilation will reduce the amount of water vapour in the air, while the increased heating will result in warmer surface temperatures, thereby reducing the risk of the water vapour condensing into a liquid form. Condensation is more of a problem in older, poorly insulated buildings and is most prevalent in the colder winter months, when occupants keep the windows closed to prevent heat loss. The prevention of condensation will usually result in a compromise between ventilation and heat loss.
Internal water leaks can result from a variety of sources, ranging from washing machines, dishwashers, sinks, shower trays, toilets, radiators/pipes, cold water storage tanks to hot tubs and fish tanks. Whatever the source, the resulting dampness will damage internal surfaces and in older buildings, can cause rot/decay to untreated timbers. It will be necessary to identify the source/s of dampness and repair/replace appliances/pipes as necessary, followed by internal repair/redecoration. Problems often arise where the source of the dampness is suspected of being in an adjoining property above or beside the property in question. In such cases, consultation with the adjoining owner/occupant will be necessary to ensure the source of the dampness is remedied, prior to carrying out any redecoration works. In some cases, exposure works will be required in order to confirm the source/s of the dampness and allow the necessary remedial works to be completed. A particular problem is where radiator or other pipes have been embedded in solid floors, which are not readily accessible.
Dry rot is a fungus that feeds on and destroys untreated timbers in buildings. When active, the fungus gives off a distinctive mushroom smell. The dry rot spores (similar to tiny seeds) can be assumed to be almost everywhere. Older building timbers (pre 1930) that may not have been pre-treated to protect against rot, will be particularly at risk from dry rot. Dry rot affects timbers located in damp, humid parts of the building which lack adequate ventilation. The building parts most at risk are sub floor voids, roof spaces (especially under flat roofs) and first floor (or above) timber floors affected by leaking sanitary/plumbing fittings (especially shower trays). Once the dry rot becomes established, it can quickly spread to affect other timbers, not affected by dampness. It can pass over and through walls and typically travels behind internal timbers such as skirting boards and timber panelling. Dry rot is a very serious defect and is both costly and disruptive to remedy. The cause/s of the dampness will first need to be remedied. Then all rot affected and nearby timbers need to be cut out and be burned, prior to their replacement with new pre-treated timbers. Similarly, all affected plasterwork will need to be removed and the walls treated, prior to re-plastering. Where possible, ventilation should be provided or increased (such as floor voids and roof spaces).
This ornamental garden plant was first brought to England from its native Japan in Victorian times. The plant currently has no natural predators in this country and grows rapidly. For these reasons, once established, it will quickly outgrow all other plants and dominate any garden or vacant plot, rendering the space unusable for amenity purposes. The roots (known as rhizomes) are very strong and can damage structural elements of buildings (such as floors and walls) along with underground services. The plant spreads using its rhizomes, which can travel a horizontal distance of up to seven metres. The plant grows to a vertical height of three metres. It was once confined to land bordering rail lines and rivers, but now can be found almost anywhere. It has distinctive large leaves with a flat base, while the stems/stalks are tightly packed together and have a red colour. The leaves grow in an alternate style on the stem. In late summer, the plant produces small white coloured flowers. If cut, the stem will be found to be hollow. However, under no circumstances, should the plant be cut down as this will only cause it to spread further. In most domestic situations, it will be practical to eradicate the plant using chemicals, which are either injected into the stems or sprayed directly onto the leaves. This treatment will have to be repeated yearly for at least three years. Normally a guarantee is then provided for a term of at least a further five years. Most mortgage lenders will lend on buildings where Japanese Knotweed is growing nearby, subject to an eradication/treatment plan being in place (which will need to be fully paid for in advance). However some lenders are more cautious and will not lend on buildings where the plant is confirmed to be growing within the seven metre spread radius. For this reason, deliberate concealment of Japanese Knotweed infestation is on the increase by people selling their property. Other problems can arise where the plant is growing on the border between two or more properties. Not only can it be difficult to determine on whose land the infestation started, but the organisation of an effective joint treatment/eradication strategy can prove difficult. In the event of a border dispute, the use of a root barrier may be considered, although opinion is divided as to their effectiveness.
Asbestos containing materials can still be found in residential properties. However for the most part, they are of the less dangerous asbestos cement type. Caution will still need to be exercised and where asbestos materials are suspected, further specialist inspection and advice may be necessary from a licensed asbestos removal contractor. It is common to find asbestos cement sheets being used for roofs and walls of garages, sheds and other outhouses. It will also be used on occasion for rainwater gutters/downpipes, for fascia/soffit boards and flues to old boilers. The material is often also used internally where some element of fire protection is deemed necessary, for example lining the doors of cupboards housing gas boilers or the underside of a staircase. Some older cold water storage tanks are made of asbestos cement also. The cement material normally binds the dangerous asbestos fibres together, thereby preventing them from being released. However where asbestos cement materials are cracked or damaged, dangerous fibres can be released and further specialist advice will be necessary. Artex type textured decorative finishes to walls and ceilings, if manufactured prior to 1980, may also contain small amounts of asbestos. For this reason, these finishes should not be sanded or disturbed. It is possible to post small samples (finger nail size) to suitable laboratories for testing, to confirm whether or not there is any asbestos content.
In England and Wales, the two most common types of legal tenure are freehold and leasehold. As a general rule, most houses are freehold while flats and maisonettes are usually leasehold. Based on legal definition, the owner of a freehold property owns everything directly above and below the subject property (subject to some notable exceptions, for example regarding minerals rights and overflying aircraft) in perpetuity (forever). The owner of a leasehold property on the other hand, owns only the floor that the property is located on, with the space above and below owned by others (in the case of a maisonette which can be over two or more floors, the same applies to other properties above or below the floors of the maisonette). Leaseholders will own the property until the lease expires, at which time the property legally reverts to the freeholder. Leaseholders will also be jointly responsible for the maintenance of shared common areas (eg stairwells/corridors) and shared external parts (eg roof and external walls). Normally a service charge is payable to finance the maintenance of shared areas and common parts. A leaseholder will also have to pay ground rent to the freeholder. It is possible for the owners of leasehold properties in a block, to compel the owner of the freehold (often a property investment company) to sell them the freehold of the block, which they will then each hold a share of. In return for this a premium is payable, with the procedure being controlled by statute. The main advantage of this is that the leaseholders can grant themselves long leases (often for 999 years) and will be in control of the blocks management. They will also no longer have to pay ground rent. Where a leaseholders remaining lease term is becoming short (85 years or less), the leaseholder may compel the freeholder to grant them an extension to the lease, in return for the payment of a premium. This procedure is also controlled by statute. The extension of a short lease can prove attractive when agreement cannot be reached with other leaseholders on the purchase of the freehold. However in either case, there will be an element of negotiation with the freeholder to determine the premium payable. Instructing an RICS chartered surveyor to act on behalf of the leaseholder/s, should ensure that the premium is kept to a minimum.
The following paragraphs are partly a repetition of some of the above paragraphs, in connection with unauthorised works. They are meant to provide general guidance only. Further advice may be necessary from your legal adviser and the Planning / Building Control Departments of your Local Authority.
Most works carried out to a residential property (including change of use) will require some statutory consents to be obtained from the Local Authority (Building Control and Planning Departments). Works that change the external appearance of a property usually require planning consent (eg loft / basement conversions and extensions). They will also require Building Control approvals. Internal works to a property will usually require Building Control approvals (eg chimney breast removals, removal of internal walls to create a through lounge or the installation of an under-stairs cloakroom), although in certain cases, planning consents may also be required.
Planning consents are designed to control the use and development of land and buildings in the best interests of the general public. Building Control approvals are designed to ensure that construction works comply with the minimum standards laid down by the relevant Building Regulations. These requirements are further complicated by Permitted Development rights, whereby certain works may be permitted without planning consents, subject to certain strict criteria being satisfied. Properties that are listed or are located in Conservation Areas, will be subject to special planning consents (and in certain cases Building Control approvals). These restrictions are designed to protect the appearance and character of the buildings and their surrounds.
Where building works have been carried out without obtaining the necessary statutory consents from the Local Authority, they are referred to as unauthorised works. The subject structures (eg extensions) or works (eg chimney breast removals) can be removed or be modified by the Local Authority, using enforcement powers granted to them by planning and Building Control legislation.
The problem for a buyer of a house or flat is to determine if any works have been carried out to the property that would have required statutory consents and whether or not these consents have in fact been obtained. It is usually the responsibility of a Surveyor to determine if any works have been carried out to a property (typically during a survey inspection) that would have required statutory consents. It is then the responsibility of the buyers legal adviser to determine if the statutory consents have been obtained or not (as informed by the Surveyor).
Whereas the construction of very visible structures or modifications (eg extensions or loft conversions) often have all the necessary statutory consents, it is very common for internal works / modifications, not to have all the necessary statutory consents, especially Building Control approvals (eg removal of chimney breasts or an internal wall). While most internal works will not require planning consents, almost all internal works will require Building Control approvals. This is to ensure that the works are compliant with the Building Regulations and that (where necessary) they have been supervised by the Local Authority (or a private contractor working on their behalf), who will then issue the relevant legal documentation, confirming compliance (eg a Completion Certificate).
Unfortunately, many builders seem to be unaware of the need for Building Control approvals (or deliberately mislead customers for their own convenience). The same can also be said for the need for Party Wall Agreements, where works are being carried out to a party wall between adjoining properties.
Once unauthorised works have been discovered, it is common for the vendors legal adviser to propose that an Indemnity Insurance Policy be put in place to cover the risks associated with one or more unauthorised works (paid for by the vendor). These are supposed to protect the buyer from the risks of any unauthorised works. They are usually proposed at the very end of the conveyancing process, in what often appears to be a deliberate attempt to pressurise the buyer into agreement with their use, at what is usually a very stressful time.
The problem with these Indemnity Insurance Policies, is that they are very limited in scope and will only cover against the risk of enforcement action being taken by the Local Authority, in respect of the unauthorised work / s. As most of the unauthorised works are of an internal nature, they are not readily visible and so the likelihood of enforcement action been taken is usually low.
The main risk of any unauthorised works is that they may not comply with the minimum standards of the relevant Building Regulations and as such they may be sub-standard and dangerous to both the occupants of a building and members of the public. As Surveyors are not allowed (in normal circumstances) to open up or expose works that are suspected of being unauthorised, they are not able to make a determination as to whether or not the works are to a satisfactory standard or would comply with the relevant Building Regulations. In many cases, it will be found upon further investigation (including exposure works) and inspection by the Local Authority, that the unauthorised works are to a satisfactory standard and retrospective consents are then provided by the Local Authority (by prior arrangement and payment of a fee, with a builder on site to expose and make good after).
Where unauthorised works have been confirmed, the buyer should NOT rely on Indemnity Insurance Policies. Instead the buyer should seek permission from the vendor to carry out sufficient exposure works (by a competent builder) to allow the unauthorised works to be inspected by the Local Authority Building Control officer (or a competent agent acting on their behalf – by prior arrangement and payment of a fee). The inspecting officer will either confirm the works are to a satisfactory standard (and will grant retrospective consent) or will require partial modification works or complete replacement. Where modification or replacement works are required, estimates can then be obtained for these works, prior to a legal commitment to purchase. The purchase price can then be re-negotiated to reflect the likely future costs of carrying out the necessary works. Any further investigations / inspections / obtaining estimates for modification / replacement works, should be carried out by the buyer, in consultation with the vendor. It is not wise to rely on the vendor or his / her agents to act on your behalf in dealing with these matters, due to the obvious conflicts of interest that can arise, along with the possibility of unsuitable contractual arrangements.
In most cases however, the vendor will not be willing to allow damaging exposure works to be carried out (even where a builder is on hand to make good afterwards). In this case the buyer has two options. He / she can either withdraw from the purchase based on the possible risks / costs from the unauthorised works (which may turn out to be unfounded), or he / she can proceed with the purchase. In the latter case, it is likely that the buyer would try to negotiate some reduction in the purchase price to reflect the risks associated with the unauthorised works. When the purchase is complete, they can then carry out the exposure works and have the unauthorised works inspected by the Local Authority to check for compliance with the Building Regulations. However, if substantial modification / replacement works are then found to be necessary, these could prove to be very costly and the buyer will have missed his / her opportunity of negotiating a suitable discount from the purchase price, to compensate for the later costs of compliance.
The following information is for guidance only and should not be used as a substitute for obtaining professional legal advice.
Most flats and maisonettes (and some houses) in England are held on a leasehold tenure. In contrast, most houses are held on a freehold tenure.
The owner of a leasehold interest is legally entitled to use and enjoy the leasehold property for the duration of the lease ie for the amount of years remaining on the lease. When the lease expires at the end of the lease term, the legal title of the property will revert to the freeholder. During the life of the lease, the leaseholder will also have to pay an annual ground rent to the freeholder as legal recognition for the fact that the leasehold flat or maisonette is located on land (or ground) held by the freeholder. The leaseholder will also be bound by the terms set out in the lease.
In legal theory, at the end of a lease term, the leaseholder will lose possession of the flat or maisonette, as it will revert to the freeholder. As this situation would be unjust to the leaseholder, legislation is in place, to allow the owner of a short lease (generally considered to be for a remaining term of less than 90 years) to apply to the owner of the freehold (the freeholder) to grant an extension of the lease term, in return for a premium (or sum of money payable). Alternatively, the leaseholder can apply to purchase a share of the freehold (along with a majority of the other leaseholders in the same building). Once the freehold has been collectively purchased, the leaseholders can then grant themselves an extended lease (typically for 999 years).
In practice, the latter option can prove difficult and so individual lease extensions are more common. There are two ways of extending a short lease – the informal agreement route or the formal statutory route.
The informal agreement route is where the leaseholder applies to the freeholder for a lease extension and the two parties privately agree a lease extension for an agreed sum of money. This method can be convenient and fast. However, there are several disadvantages to using this method. Namely, the freeholder will usually offer a relatively short lease extension (often to bring the existing lease up to a total of 99 years, for example 85 year existing lease + 14 year extension = 99 years), the premium demanded can be excessive and does not have to be justified by the freeholder, the freeholder will usually make detrimental changes to the annual ground rent payable (usually it will be increased along with other changes to the future review structure) and changes may also be made to other lease terms.
The formal statutory route is where the leaseholder applies for a lease extension using the relevant legislation (mainly the Leasehold Reform, Housing and Urban Development Act 1993, as amended). This method requires the leaseholder to instruct a suitably experienced and qualified Surveyor to calculate the lease extension premium that should reasonably be paid to the freeholder in return for a lease extension. The services of an experienced legal adviser will also be necessary. While this method of extending the lease is more cumbersome and time consuming (the process can take up to a year to complete) when compared to the informal agreement method, it has a number of important advantages. Namely, the lease extension will be for a statutory 90-year term on top of the existing lease (for example 85 year existing lease + 90 year extension = 175 years), the premium is calculated by negotiation between the parties using a statutory formula and no other changes are allowed to the ground rent or the other lease terms.
The formal statutory method of extending a lease is preferable to the informal agreement method for all of the above reasons. However, many leaseholders are not aware of the statutory protections offered by the legislation and end up agreeing inflated premiums with the freeholder. In other cases, a leaseholder wishing to sell their property, often agree to a pay an inflated premium, so that the property is more marketable as it can be sold with a quickly agreed (but costly) lease extension. However, a leaseholder with a short lease who wishes to sell the property can initiate the formal statutory lease extension process and then either assign the benefit of initiating the process to the new purchaser or agree to complete the whole process (including the eventual payment of the premium) on behalf of the new purchaser. The advantage of initiating the lease extension process prior to a property sale, is that the property is considered more attractive to a prospective purchaser. Otherwise the new purchaser would have to wait for a two-year period of legal ownership, before they can legally extend the lease using the formal statutory method. As a result of the two further years that would have elapsed, the lease extension premium would normally be higher.
The formal statutory lease extension process requires that the owner of the short leasehold has been a legal owner for at least two years. The owner will first need to instruct a competent RICS qualified Surveyor to inspect the property. The Surveyor will then calculate the approximate premium that should reasonably be paid to the freeholder in return for the statutory 90-year lease extension. The Surveyor will then enter into negotiations with the freeholder in order to agree a premium. These negotiations can take up to 12 months to complete. The services of an experienced legal adviser will also be necessary. The Surveyor will deal with the property inspection, valuation, calculation of the premium and the subsequent negotiations with the freeholder. The legal adviser will work in tandem with the Surveyor and serve the various legal notices on the freeholder. When the premium amount has finally been agreed, the legal adviser will be responsible for the property conveyancing and associated legal work.
Survey Homes KOS Ltd provide a Lease Extension Valuation Report (LEVR). The fee quoted for this service includes the inspection of the subject property, the calculation of the lease extension premium and the subsequent negotiations with the freeholder until such time as a premium has been agreed. The Surveyor will need to inspect the lease documents to ascertain the exact remaining lease term and the ground rent provisions, as these are used in the calculations.