Dealing with unapproved alterations

This page is mainly for buyers who discover that alterations have been carried out by their sellers’ without the necessary permissions from the City. It tells you why it’s important and what to do about it.

The other page on the menu explains how to do alterations properly and get the necessary consents and paperwork.

Why it is a problem for buyers

problems

“Drop that non-compliant plastic piping and come quietly, Barbican resident.”

These are the consents which may be missing

Failure to obtain landlord’s consent. If works which required landlord’s consent have been carried out without consent, the Barbican Estate Office can require them to be reversed. Again, there is no time limit.

Failure to obtain building regulation approval. Strictly speaking, a council can only take action for breach of building regulations if they do it within one year of the date the works were completed. But that one year limit only applies to their normal enforcement procedure. They still have a right to go to court for an injunction, and that right has no time limit.

Breaking listed building rules. If works which required listed building consent have been carried out without consent, the City can require them to be reversed. There is no time limit. (It is also a criminal offence by the person who did the works illegally, but not a subsequent buyer).

Why it is a problem for buyers

The buyers risk taking on a potential problem. The buyers can be made to put right things done wrong in the past – even though they weren’t the owners at the time.

It may affect future work they do. If they need a future approval, the Barbican Estate Office and the City will then see that unauthorised works have already been done and make an issue of it.

Lenders may not lend. Standard lenders’ requirements are that all consents for all works, however long ago, must be in place. Buyers’ solicitors will probably also be acting for the lenders. They will be under a duty to tell them about any lack of necessary consents or approvals. The lenders may insist that consents are obtained before they will lend the mortgage advance.

Problems selling. Buyers may have problems in selling the property themselves when the time comes, for the same reasons.

Solutions

Retrospective landlord’s consent

If the issue is failure to obtain landlord’s consent, you should contact the Barbican Estate Office who will arrange for someone to inspect, and then discuss with you what is necessary in order for you to get a written consent now for works done in the past (a ‘retrospective consent’).

They may require you to undo some of the works if they don’t meet their standard requirements for permitted works. For example, they are likely to object to works which affect the operation of the building-wide ventilation system. They will definitely not approve any works which involve holes through the main walls (which belong to the estate, not to you).

Retrospective building regulation approval

The Building Control Department will want to inspect the works.

If it involves something like plumbing or connections to services which are now hidden behind the wall, they may insist that you open up the wall so they can inspect the pipework or connections.

It happened to me. They made me have the shower dismantled and the wall taken down so they could check how my builders back in the ’90s did the drainage connection. I had to replace the plastic pipework with copper.

Retrospective Listed Building Consent

The Department of Planning and Transportation will want to inspect the works. They have different policies for different works.

If the works are the type which require listed building consent, but are normally permitted, then hopefully they will just give you the necessary retrospective consent.

But there are many types of works which they would never approve, in which case you have to restore the premises to their previous configuration before they will confirm that you are no longer in breach of your legal obligations.

What an indemnity policy achieves

There are insurance policies you can take out to cover you and future owners against past failure to comply with requirements when works were carried out.

There is a one-off premium of (usually) a few hundred pounds.

It is not an automatic universal solution. A policy may not necessarily be available for every breach.

You can never get a policy if you have already told the City about the breach. The deal with policies is that you have to keep quiet about the breach, or the policy ceases to apply.

For cash buyers it is a choice whether to take out a policy. For anyone buying with a mortgage loan, the lenders will almost certainly insist on a policy for any past breaches (except of course for breaches which have been put right by a retrospective consent).

Why it may not satisfy buyers

An indemnity policy doesn’t really address the practical issue. A policy may cover any loss of value of the flat due to the City finding out about unauthorised building works and taking some action as a result. But the practical issue in a Barbican flat isn’t a loss of value so much as the hassle factor in having to expose pipework for inspection, or the buyers having to convince their buyers to accept the situation when they sell, or the fact that the City might create difficulties about future works until the old works are put right.

Buyers want to feel they are being law abiding, not holding up two fingers to the City. They also want to know that the pipe work and the connections to the communal system were done properly because they will have to live with them, and secret unapproved works smack of gerry building and corner cutting. A policy doesn’t really meet those issues.

Other options

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Taking a view

‘Taking a view’ means accepting the situation and buying anyway without getting any retrospective approvals.

You might do this because:

  • you don’t think the particular problem with this flat is worth worrying about
  • you are going to redo the flat anyway as soon as you buy it, and the past works will be removed as part of the new works.
  • If you were required to put the breach right, you could live with that.