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Q – I’m buying a listed property and want to make sure a recent kitchen extension was done with the right approvals. How do I check this and protect myself on this front?
If you’re looking to buy a house which is listed, it will no doubt be a unique and interesting property full of character. However, you are right to be aware that the fact it is listed means there are additional controls over any works to the property
The National Heritage List for England protects buildings which are of special architectural or historical interest considered to be of national importance. As such listed building consent is required for all works of demolition, alteration or extension to a listed building.
It is actually local planning authorities that provide approval for works to listed buildings. Where the works have an impact on the external appearance of the building, planning permission may also be required and should be applied for at the same time. For example, this may include building an extension or installing new windows and doors.
Make sure that you instruct a specialist heritage surveyor to review the property and all the planning and listed building consents for the property to verify the corrects consents were obtained. This can be in addition to having a regular building survey carried out or some surveyors will do both in one survey. The heritage survey should make clear whether the kitchen extension was approved, and what to do if it isn’t. Heritage surveys also provide historic building and heritage conservation advice to assist buyers who will be responsible for the practical care of historic buildings.
Your solicitor will review the results of the local authority search for the property which reveals all the permissions obtained from the local planning authority for the property. They will also raise enquiries with the seller to find out if the right consents have been obtained and check that any conditions on the listed building consents have been discharged or, if there are on-going conditions, that they are being complied with.
Your solicitor and heritage surveyor will both check to see if the work was done before the building was listed; if so, there will be no issue as no listed building consent will have been needed.
It is essential to check whether the previous owners of the property obtained the relevant consents because you will inherit the liability for any unauthorised work they undertook. Given there is no time limit on enforcement action, you may be required to reverse the alteration at any time in the future. In effect, therefore you may potentially have to ‘undo’ or alter the kitchen extension if it lacked approval. This could be costly and may reduce the value and your enjoyment of the property, so should be carefully considered before proceeding with the purchase.
It is also a criminal offence not to seek listed building consent when it is required. The maximum penalty is two years’ imprisonment or an unlimited fine. Not knowing a building is listed, or claiming the works were carried out by a previous owner are not defences to any criminal proceedings.
As the buyer, you need to consider the extent of any liability you might take on before proceeding with the purchase. If you find that works have been carried out to the property without the appropriate consents or the listed building consent 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 listed building consent for the breach and which breaches could be problematic.
If the kitchen extension was not approved, there are various things that you can do as part of the conveyancing process to alleviate any stress or anxiety about the consent, and ultimately protect yourself.
The way to remove the risk completely is to reverse the alteration (if possible) or for you or the seller to apply retrospectively for consent for the kitchen extension. You may elect to negotiate a conditional contract with the seller, which stipulates that you will only complete the purchase of the Property when the seller has obtained retrospective consent for the kitchen extension if it was unapproved.
Most sellers will be reluctant to agree to this approach because if they apply for retrospective consent and are unsuccessful, then it draws the issue to the attention of the local planning authority who are then likely to serve an enforcement notice on the seller in relation to the alterations.
Alternatives include negotiating a price reduction to cover the costs and hassle of obtaining retrospective consent for the extension after completion. Any price negotiation should include recognition of the fact that the buyer will be accepting the risk for the lack of consent, and any liability that comes with it.
If you are a cash buyer then you can decide to proceed on the basis that you will accept the risk for the lack of consent. However, if you are obtaining a mortgage, the bank will require you to obtain indemnity insurance, which will cover you and the bank against the cost of rectifying unauthorised alterations. You will need to discuss the indemnity insurance policy with your solicitor though as they often include provisions which invalidate the policy if you approach the local planning authority for consent for any works in the future. For example, if you want to carry out alterations to another part of the property and apply for consent then this could invalidate the policy. There are some more bespoke indemnity policies available which might get round this problem but these policies can be costly and/or have a high excess.
Another factor to bear in mind, of course, is that if the kitchen extension was carried out without proper consent, then you, in turn, will have to deal with this problem as part of any future sale of the property unless you and the seller can resolve the issue now, either by removing or adapting the alterations or by obtaining retrospective consent.
This article first appeared in The Daily Mail on 25 November 2021.
Vanessa Rhodes is a partner in the Real Estate team and is experienced in a range of commercial and residential property matters. Vanessa has acted for high net worth individuals, celebrities, developers, landlords and tenants and investors.
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