We have high concrete walls, about 6ft high, on all three sides. It was said to me that these might be an issue when selling. We never got planning permission when we built them more than a decade ago as we didn’t think we needed it. The neighbours didn’t object. Should I try to get retention permission now before we put our house on the market and avoid any delays in the sale?
By a total coincidence when your query arrived in I had just come from a couple about to place their property on the market who were encountering a similar issue. I’m finding the prevalence of this type of issue is increasing and causing frustrations and delays for vendors and buyers. There are several nuances that can apply such as: Does a planning issue affect title? Can a council serve an enforcement notice once the unauthorised development is in situ for seven years? What causes building regulations to apply? And so on. Furthermore, there are inconsistencies during the conveyance process with some sales progressing and others falling through due to similar red-flag issues.
The key issue is the difference between a “good title” and a “marketable title”.
To look at it in a little more detail, most buyers will need to mortgage the property to a lending bank, so while the title might be good and the property structurally sound, if there’s a single aspect of compliance not in order, it will cause problems. The most frequent issues of noncompliance we encounter are attic conversions, front porch extensions and newly built sheds and garden structures, but there are a host of other possibilities. Generally speaking, internal reconfigurations, while they may not need planning permission, may well require certificates with building regulation compliance.
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Good title means you have undisputed ownership of your property, that you have the deeds (or that the bank has them in the case of a mortgage), that the Land Registry maps and boundaries match and are correct, that you have proper access, and that there are no disputes to ownership. I suspect you have good title. Marketable title, on the other hand, is what a bank will require if the property is being mortgaged. They essentially want to ensure that if the property is to be repossessed, they can easily sell it on to recover their debt. Therefore, they will require perfection in all matters of the property, including full compliance with all planning and building regulations.
In cases where there may be a compliance issue, a solicitor acting for a purchaser will need to flag any such issues they have become aware of back to the purchaser’s bank, known as a qualification on title, and seek confirmation that the bank is agreeing to proceed on that basis. In some cases they will agree, but there can be inconsistencies; what may seem like a minor issue can be anything but, and what you might think could be problematic may not turn out to be.
My advice is if you’ve had any work done to your property, irrespective of how minor it may seem, you should have it checked by a chartered building surveyor to ensure a certificate of compliance with planning and building regulations can be issued. It is simply not sufficient for the builder or contractor at the time to have confirmed compliance. Like most things in life, it’s usually not that straightforward.
Ed Carey is a residential estate agent and a member of the Society of Chartered Surveyors Ireland
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