Remote Work Meets Real Estate: Legal Insights on Home Office Conversions

Home working continues to remain popular amongst office workers which has brought with it a rise in demand for housing with adequate office space. New office structures in gardens are space savers for the main house and can immediately add value to your property. However, whilst these additional structures can be a great addition to your hybrid working set-up there are a few things buyers need to consider when buying a property with an outside office.
 

Planning

In certain circumstances planning permission is required for either or both of the build of a new structure and the material change of use of a property.

Not all home offices which are erected separately to the main home will need planning permission for the build of the structure itself. This is only the case, however, if certain conditions are met including:

• The structure cannot form part of the front of the house.
• The structure must be a single storey with a maximum eaves height of 2.5 metres and a maximum overall height of 4 metres with a dual pitched roof (or three metres for other types of roofs).
• Where the structure is within 2 metres of a boundary of the Property then the height of the structure is not more than 2.5 metres.
• The structure cannot include any balconies, raised platforms or verandas.
• The erection of the structure should mean that no more than half the area of land surrounding the existing main house is covered by other buildings.

If the structure is within the boundaries of a listed building or designated land then planning permission and potentially listed building consent will be required.

Considering the various height and distance requirements we would recommend that buyers ask their surveyor to check the as built position to ensure that the structure is compliant with current planning laws.

Aside from planning permission for the actual build of the structure buyers should also consider whether planning permission would have been required for a material change of use. Generally speaking you do not need planning permission to be able to work from your home. However, if the conversion of part (or whole) of the house to a home office or the erection of a new home office structure within the boundaries of the property means that there has been a material change of use then planning permission would have been required. Planning permission is usually required in the following circumstances:

• The property is no longer used as a private residence
• There is a marked rise in traffic of people coming to the property
• The business being carried out in the home results in there being unusual activities in a residential area
• The business will disturb the neighbours at unsociable hours or cause other forms of nuisance.

Building Regulations

Depending on what works have been carried out, it is possible that building regulation approval would have also been required.

For new structures built for the purpose of being a home office, generally speaking no building regulation approval is required where the floor area of the structure is less than 15 square metres and does not contain any sleeping accommodation. If the floor area of the structure falls between 15 square metres and 30 square metres then building regulation approval is only needed if the structure both contains no sleeping accommodation and is either at least 1 metre away from any property boundary or is constructed of substantially non-combustible materials. For structures over 30 square metres building approval would have likely been required unless an exemption applies.

In situations where an existing structure was converted to a home office then it is likely that building regulation approval should have been obtained.

Aside from the structure itself other works may have needed building regulation approval (or a self-certifying certificate from a person part of a competent person scheme, where applicable) such as electrical work, installation of heating or air conditioning systems and so even if your surveyor deems that the structure itself did not require building regulation approval it is still worth considering if other minor works should have obtained sign off from the relevant authority.

In situations where building control approval should have been obtained but there is no evidence to suggest that approval was obtained, the key consideration for buyers will be when the works were completed. The Building Control Authority has the ability to serve enforcement notices to carry out removal works. For any building works that took place prior to 1^st October 2023 then the relevant authority only had 1 year from the date the works were completed to serve notice. Following recent changes, for any building works completed post 1^st October 2023 then the relevant authority can serve an enforcement notice within 10 years of completion of the works. Therefore, for new structures or works that meet the requirements for approval it has become even more important to obtain the relevant paperwork showing that building regulation approval was obtained otherwise you may well be at risk of inheriting the risk of dealing with a potential future enforcement notice. It is worth noting that even when outside these enforcement periods, the relevant authority can still serve enforcement notices but only in situations where there is a risk to life.

In addition, and perhaps more importantly, if the works were carried out in a way which does not comply with building regulations, then they may be defective or structurally unsound. If the defects are only found after exchange or completion, then the Buyer will need to rectify the defects at their own cost.

What should a buyer do when approval was required but not obtained

Where there is a defect, the question becomes whether a buyer and their lender are happy to proceed with the purchase in light of these defects and what solutions are available to them.

The enforcement period (i.e. the period in which the Local Authority can serve an enforcement notice on an owner of a property for not obtaining planning permission) for a material change of use is 10 years whereas the enforcement period for the lack of planning permission for the build of the structure itself is 4 years for works that took place prior to 25 April 2024 and 10 years for works that took place post 25 April 2024.

In respect of lack of building regulations, the enforcement period for any works prior to October 2023 is 12 months whereas the enforcement period for any works post October 2024 is 10 years.

One option to rectify the issue is to obtain retrospective consent:

• If it is deemed that planning permission should have been obtained at the time the home office was built or converted then depending on how long the home office has been built for, the owner may be able to obtain retrospective planning permission or a Certificate of Lawful Use. The Certificate provides confirmation from the Local Planning Authority that they approve the new building and/or change of use. However, this route can be time consuming, costly and there is no guarantee that the Local Authority will grant the approval, by which time you will have alerted them of the unlawful office space. Similarly, you could try to obtain retrospective planning permission for the erection of an unlawful structure, however, for the same reasons as not seeking a Certificate of Lawful Use, this may be of limited use to you.
• In respect of lack of building regulations, the enforcement period for any works prior to October 2023 is 12 months whereas the enforcement period for any works post October 2024 is 10 years. As with the retrospective planning permission and Certificate of Lawful Use, you could seek a Building Regularisation Certificate from the Local Authority to show that the works comply with current building regulations. However, these can be difficult to obtain and can involve paying high amounts of fees to the Council. The process would also open up the works themselves to scrutiny to see if they have been carried out correctly (which they may not have been!) and some Local Authority’s will also not issue these certificates.

So, for various reasons, retrospective approval can be a non-starter for sellers and buyers.

It is always worth considering whether a legal indemnity insurance policy would be appropriate for lack of planning or building regulation approval. Depending on when the works were carried out indemnity policy quotes obtained for recent works can either be unavailable or expensive but can make more sense when the works were carried out more than 12 months ago. Buyers should note that indemnity policies do not stop an enforcement notice from being served or stop them being valid, they are merely there to help with the costs of dealing with a notice. A buyer would still have to deal with the practicalities and hassle of complying with an enforcement notice. These policies also do not negate any issues with defective works; a buyer could be lumbered with a poorly built home office as there is no evidence that they were built to current standards. However, if indemnity insurance is to be considered, it is an acceptable mitigator for most lenders. In the first instance it should be the position that the seller covers the cost of an indemnity policy as they are the party who are providing defective title to the buyer.

Our Residential Real Estate Team advise on all aspects of residential property law.

About the author
 

Jess is an associate in the Real Estate team specialising in residential property matters. Jess joined Kingsley Napley in 2019 and her clients include investors, high-net worth individuals, landlords and tenants.