Restrictions On Extensions And Alterations To Property
Most homeowners realise that if they want to build an extension to their property they need to contact the local authority to see if planning permission and/or building regulation approval is required. What many people do not realise is that their deeds could contain “restrictive covenants” which either impose an absolute prohibition against building or, more usually, impose restrictions against building without the consent of some third party.
Most commonly these restrictions appear in transfers of properties on housing estates. Any Council tenant in Bracknell who exercised his Right to Buy under the Housing Acts will find inserted in the Transfer of his property from the Council a restriction “not without the previous written consent of the Council to make any structural alterations or additions to a building nor to erect any outbuildings on the property”. Such consent from the Council is in addition to any planning permission and/or building regulation approval which might also be required.
On private housing estates virtually all builders impose restrictions against alterations or additions without their written consent. Builders claim this is for the protection of other house owners on the estate, though quite a number of builders will agree to put a two or five year time limit on such restrictions (on the basis that once the estate has been developed and all houses sold, they have little interest as to what happens thereafter).
It is debateable as to how enforceable these restrictions are. To be enforceable, one of the principle requirements is that the person who has the benefit of the restriction ie a builder, should retain land in the area which is capable of being benefited by the restrictions (which of course would not happen in the case of a residential development). Nonetheless the restrictions do have a nuisance value in that whilst a buyer’s solicitor might acknowledge privately that the restrictions are probably unenforceable, he will nonetheless insist that if any alterations or extensions have been made then the builder’s consent for those works must be produced (and retrospectively, if the house owner then selling failed to obtain the necessary consent).
The problems with obtaining a builder’s retrospective consent are ones of timing (issuing retrospective consent to a house owner is not very high in a builders list of priorities), cost (builders will normally make a charge for issuing consent – usually around £200-£250) and of course there is always the risk that the builder may refuse to consent to the works which could then make the property very difficult to sell. An alternative course of action would be to obtain a “restrictive covenant indemnity policy”, an insurance policy which covers the house owner in the event that the original builder attempts to enforce the restrictions. The policy would normally be taken out for the value of the house and the premium would be a single premium payable when the policy is put on risk. Although the cost of the premium might be slightly higher than the costs payable to a builder for retrospective consent, at least by taking out the policy a house owner does not run the risk of having retrospective consent refused thereby rendering his property virtually unsaleable.
Paul Grindrod
Do you have a legal question? If so we will try to answer it.
Contact us online...or call 01344 862777