Q – I am buying a listed property and want to make sure that a recent kitchen extension has been completed with the correct approvals. How can I verify this and protect myself on this front?
If you are looking to buy a listed home, this will undoubtedly be a unique and interesting property full of character. However, you are correct that the fact that it is listed means that there are additional checks on the work of the property.
England’s National Heritage List protects buildings of special architectural or historical interest, considered to be of national importance. As such, the classified building permit is required for all demolition, modification or extension work of a classified building.
It is in fact the local town planning authorities that issue the approval for the work of listed buildings. When the work has an impact on the exterior appearance of the building, a building permit may also be required and must be requested at the same time. For example, this may include building an extension or installing new windows and doors.
How can I verify that the necessary consents have been obtained?
Be sure to have a heritage surveyor examine the property and all planning and building permits listed for the property to verify that the correct consents have been obtained. This can be in addition to a regular building survey or some surveyors will do both in one survey. The heritage survey should make it clear whether the kitchen extension has been approved and what to do if not. Heritage Surveys also provide advice on historic buildings and heritage conservation to assist buyers who will be responsible for the practical maintenance of historic buildings.
Your attorney will review the results of the local authority’s search for the property which reveals any permits obtained from the local planning authority for the property. They will also interview the seller to see if the correct consents have been obtained and verify that all conditions on the listed building permits have been lifted or, if there are any pending conditions, that they are being met.
Your lawyer and your land surveyor will both check whether the work was carried out before the building was classified; if so, there will be no problem as no classified building permit will have been required.
Why is verification important?
It is essential to verify whether the previous owners of the property have obtained the necessary consents, as you will inherit responsibility for any unauthorized work that they have undertaken. Because there is no time limit for execution actions, you may need to undo the change at any time in the future. Indeed, you will therefore potentially have to “cancel” or modify the extension of the kitchen if it had not been approved. This could be costly and reduce the value and enjoyment of the property, so it should be thought through carefully before making a purchase.
It is also a criminal offense not to request the authorization of a listed building when it is required. The maximum penalty is two years imprisonment or an unlimited fine. Not knowing that a building is listed, or claiming that the work was done by a previous owner, are not defenses to criminal prosecution.
Your options as a buyer
As a buyer, you should consider the extent of any liability you may have before making the purchase. If you find that work has been done on the property without the proper consents or that the listed building permit conditions have been breached, you will need to consider the extent of the breach. The heritage surveyor will normally guide you as to whether you will be able to obtain retrospective classified building consent for the violation and what violations might be problematic.
If the kitchen extension has not been approved, there are a number of things you can do as part of the transfer process to alleviate any stress or anxiety about consent and ultimately protect yourself.
The way to eliminate the risk completely is to either undo the change (if possible) or for you or the seller to retrospectively seek consent for the kitchen extension. You can choose to negotiate a conditional contract with the seller, which states that you will not finalize the purchase of the property until the seller has obtained retrospective consent for the kitchen extension if it has not been approved. .
Most sellers will be reluctant to accept this approach because if they seek retrospective consent and fail, it attracts the attention of the local planning authority who is then likely to serve a notice of fulfillment on the seller in this regard. which concerns the modifications.
Alternatives include negotiating a price reduction to cover the costs and hassle of obtaining retrospective consent for the extension after completion. Any price negotiation must include an acknowledgment that the buyer will accept the risk of the lack of consent, and any liability that arises therefrom.
If you are a cash buyer, you may decide to proceed on the assumption that you will accept the risk of lack of consent. However, if you get a mortgage, the bank will ask you to take out indemnity insurance, which will cover you and the bank for the cost of rectifying unauthorized changes. You will need to discuss the compensation insurance policy with your lawyer, however, as they often contain provisions that invalidate the policy if you ask the local planning authority for consent for future work. For example, if you want to make changes to another part of the property and ask for consent, that could invalidate the policy. There are other bespoke indemnity policies that could work around this problem, but these policies can be expensive and / or have a high deductible.
Another factor to keep in mind, of course, is that if the kitchen extension has been completed without the proper consent, you will in turn have to deal with this issue as part of any future sale of the property. , unless you and the seller can fix the problem now, either by removing or adapting the changes, or by obtaining retrospective consent.
This article first appeared in The Daily Mail on November 25, 2021.