Conveyancing Explained

In a bid to reduce property fraud, the Land Registry has introduced “Protect your Property”. The idea is that homeowners, particularly those with no mortgage, are at greater risk of property fraud if the Land Registry can’t contact them when someone makes an application (fraudulently) to register a financial charge against the property. It is also particularly relevant to buy-to-let landlords for the same reason.

You can contact the Land Registry or download the update form from their website at www.landregistry.gov.uk. The service is free of charge.

Whether contained in the Home Information Pack or whether undertaken independently, the Local Land Charge Search will reveal any planning permissions granted in relation to the property.

If the permissions are dated within the last four years, then the terms of them are still enforceable by the Council if a breach has taken place; however, if a period of four years has elapsed, then breach of planning permission is no longer enforceable. This is because after this period of time, any action by the Council is statute barred.

So, if you’re selling a property and you’re asked to pay for copy planning permissions to be obtained, they only need to be provided if they’re dated less than four years ago.

The time period does not apply in relation to building regulation approvals and completion certificates however. Due to the findings of a case called Cottingham v Attey Bower & Jones (2000), solicitors should always ask for and obtain copies of the building regulation approvals and completion certificates (if cc’s were granted by that Council at that time). Breaches of building regulations can be enforced via an injunction under Section 36(6) of the Building Act 1984 and therefore, the Council can take action at any time, (although usually a period in excess of ten years expired is seen as satisfactory by mortgage lenders if no action has been taken) where works were undertaken from 1985 onwards in breach of the regulations.  Prior to that, such breaches cannot be enforced.

If the building regulation approvals cannot be provided by you, then they should be obtained through the local Council. Depending on the age of the documents, you might be able to get copies via the Planning Portal, which now enables people to access planning permissions and building regulation approvals relating to any property, online. You can’t always get them if they’re older documents though.

Please note that a building regulation approval is issued at the start of the building works when plans etc have been checked. A completion certificate is a more recent document, that is issued by the building control officer once the work has been completed satisfactorily following his inspection.

If the documents cannot be provided, then indemnity insurance should be obtained by the buyer’s conveyancing solicitor to protect both the buyer and if relevant, the mortgage lender. You will be asked to pay for this if you cannot provide the documents to prove that the permissions or approvals haven’t been breached.

Many people think that if they bought a property in their maiden name that either, 1: They won’t be able to sell the property until this has been changed or 2. They need a solicitor to get the surname changed. Neither of these is correct!

Regarding point 1;-

If the house is in your maiden name, when your conveyancing solicitor instructed to act on your sale has a look at the deeds, he will see this. He will then ask you to provide your original marriage certificate, take a copy of it and return the original to you. The copy is certified by the conveyancing solicitor as being a “true copy” of the original. When your conveyancing solicitor sends the contracts and Official Copies of the Register (the name for the electronic register of deeds held by the Land Registry since paper title deeds were abolished) to your buyer’s solicitors, he will also send the certified copy of the marriage certificate. This proves to the buyer’s solicitors that you have legally changed your surname and that you are entitled to sign the contract as the owner of the property in that name. It’s that easy!

Regarding point 2:-

All you need to do is send a letter to the Land Registry, explaining that you are now married and supplying your original marriage certificate. If I was doing so, to make sure it gets there, I would send it by recorded delivery. It might also be helpful if you included a stamped addressed envelope for the return of the certificate.

The Land Registry will then update its electronic register and return the certificate to you. Very simple and no need for a solicitor.

OK, you’re in the process of selling your property and the buyer’s solicitor comes back to your solicitor, saying that they want you to pay for indemnity insurance because you’ve “breached the restrictive covenants“. What does this mean?

Put simply, freehold or leasehold land can be affected by covenants. There are positive covenants and restrictive covenants. Think of a covenant as a legally binding promise either to do something (positive) or not do something (restrictive).

I see more and more cases where people have bought a property and their conveyancing solicitor at the time has not made them aware that covenants affect the property. Restrictive covenants are often breached, particularly in relation to the requirement to gain consent of a third party, often the original builder. This covenant is put in place to ensure that the design of the overall development stays the same in future years.

So, if you didn’t know about them, how can you breach them? Well the answer is simple. The covenants are there in your deeds, whether or not you had actual knowledge of them. Therefore, you are assumed to have knowledge of them in law.

If you breach a covenant, then the person with the benefit of the covenant can enforce it against you. This could mean ripping down an extension that you’ve had built without consent!

Be aware that covenant consent is completely separate to planning permission or building regulation approval. Often, the Council can have the benefit of the covenant and a client will say to me, “Well they must have consented to it, they gave me planning permission/building regulation approval”. Unfortunately, it doesn’t work this way. The Council must be approached (usually through their legal department) to provide consent under the terms of the covenant.

If you have breached a covenant and you are now in the process of selling, then you usually have a few options;-

1. Remove the breach by rectification i.e. tearing down that lovely extension.
2. Obtain retrospective consent from the third party with the benefit of the covenant – bear in mind that this can be time consuming, you’ll probably have to pay a fee, and you have no guarantee that they will agree.
3. Pay for an indemnity insurance policy – although there are specific requirements of the insurance company that must be met i.e. no action or dispute must be currently in effect, the breach must have continued for “x” number of years.
4. If there has been a continuous breach for over 20 years, then the breach can be viewed as “statute barred” and therefore unenforceable. This means that the third party has allowed the breach to continue for all that time and they are therefore prevented from taking action in relation to it.

Your conveyancing solicitor will be able to advise you how to proceed in your particular circumstances.

New regulations apply to replacement windows and doors installed since 1st April 2002. Basically, all replacement windows, rooflights, roof windows and glazed doors (more than 50% glass) will have to comply with the FENSA Regulations/new Building Regulations.

Either a FENSA Certificate or Building Regulation Approval/Completion Certificate should be available.

If you’re buying, you need to ask the seller whether there are any such replacements. If so, do they have a FENSA Certificate/Building Regulation Approval? Whatever their answer, tell your conveyancing solicitor, as this document is now required by law. The solicitor can ensure that it is available and that you will get the original Certificate on completion. If it is not available, then remedies such as indemnity insurance or retrospective building regulation aproval can be obtained.

If you’re selling a property and you’ve recently had replacements made, then find your Certificate, because the buyer’s solicitor is bound to ask for it. If you had a FENSA Certificate and you’ve lost it, a replacement can be obtained from the FENSA website at a cost of 10 pounds. Obtaining this sooner rather than later will avoid delays in exchange of contracts. If you didn’t get a FENSA Certificate or Building Regulation Approval, then you need to make sure that you tell your conveyancing solicitor. As indicated above, it is usually possible for you to either pay for an insurance policy to cover the buyer or to contact the Council for retrospective building regulation approval. If you use the latter option though, be aware that if retrospective approval is refused, you cannot then get insurance, because the insurance company will consider the Council as being notified of the breach and therefore likely to take enforcement action against you.

You can find more information from the Building Control Department of your local Council or by visiting www.fensa.co.uk.

If you want to make sure that your sale runs smoothly from the outset, it’s a good idea to make sure that you put together all the documentation that your conveyancing solicitor will need at the earliest opportunity.

When selling a house, your conveyancing solicitor will need the originals of the following if you have them;-

• Any title deeds and sundry searches.
• Any planning permissions, plans and accompanying documents.
• Any building regulation approvals and completion certificates
• FENSA Certificate
• Gas Safety Inspection Certificate
• Electrical Safety Inspection Certificate
• Proof of boiler servicing/CORGI Certificate
• Any guarantees, together with any contracts, quotations and plans (particularly for damp proofing works).
• Any indemnity insurance policy that was put in place when you bought the property.
• Details of your existing mortgage e.g. account number and approximately how much is outstanding, together with account details for any additional financial loans or charges registered on your property.

In addition, if your property is leasehold and not freehold;-

• Latest service charge receipt
• Latest ground rent receipt
• Lease
• Share certificate
• Management company’s details
• Memorandum of Association & Articles of Association for the Management Company

In addition, whether you are buying a house or selling a house, your conveyancing solicitor will need proof of your identity because they are required to check this for Money Laundering requirements. The conveyancing solicitor will give you more details of any documents he requires, but usually a passport/photocard driving licence and bills/bank statements are sufficient.