selling house with no planning

ruskin · 31-10-2014 10:21am #1

Hi,
I have a query I hope some people on here may be able to offer some advice on. My elderly aunt lives in the country and lost her husband a year ago. She has now decided that she wants to move closer to town near my cousin’s family. As such, she is deciding to sell her home. However, my cousin told me that the house she lives in does not have planning permission (well, it received planning permission circa 1970, but it was built quite differently to the drawings and in a different part of the field). How will she go about this? My cousin says she will have to lodge a retention application for the whole house, but she is terrified there is a chance the council will tell her to knock her home of over 40 years. How might she go about selling her home, and what is the story with land registry maps, etc? Apologies for the lengthy post, but some very simple advice would be really helpful!

kkelliher · 31-10-2014 10:27am

ruskin wrote: »

Hi,
I have a query I hope some people on here may be able to offer some advice on. My elderly aunt lives in the country and lost her husband a year ago. She has now decided that she wants to move closer to town near my cousin’s family. As such, she is deciding to sell her home. However, my cousin told me that the house she lives in does not have planning permission (well, it received planning permission circa 1970, but it was built quite differently to the drawings and in a different part of the field). How will she go about this? My cousin says she will have to lodge a retention application for the whole house, but she is terrified there is a chance the council will tell her to knock her home of over 40 years. How might she go about selling her home, and what is the story with land registry maps, etc? Apologies for the lengthy post, but some very simple advice would be really helpful!

You will not need to go for planning retention for a house built in the 1970's. Your aunt show speak to the solicitor who will deal with the sale on her behalf for piece of mind.

sydthebeat · 31-10-2014 10:44am

kkelliher wrote: »

You will not need to go for planning retention for a house built in the 1970's. Your aunt show speak to the solicitor who will deal with the sale on her behalf for piece of mind.

??? please expand.

My first impressions is that she definitely would require permission to retain, if it cannot be shown that the conditions of the initial permission were complied with.

However, she definitely cannot be asked to knock her house, the statute of limitations has well passed.

ruskin · 31-10-2014 10:55am

kkelliher wrote: »

You will not need to go for planning retention for a house built in the 1970's. Your aunt show speak to the solicitor who will deal with the sale on her behalf for piece of mind.

The one thing I'm fairly sure of is that she will most definitely have to have the site and house surveyed and a planning retention application lodged by an architect/engineer.

kkelliher · 31-10-2014 11:27am

sydthebeat wrote: »

??? please expand.

My first impressions is that she definitely would require permission to retain, if it cannot be shown that the conditions of the initial permission were complied with.

However, she definitely cannot be asked to knock her house, the statute of limitations has well passed.

This is the crux of my position. It may be unauthorized development but as the statute has passed and no enforcement can be applied. The building control act only came in in 1992 so again this is after the property was built.

sydthebeat · 31-10-2014 11:34am

kkelliher wrote: »

This is the crux of my position. It may be unauthorized development but as the statute has passed and no enforcement can be applied. The building control act only came in in 1992 so again this is after the property was built.

this doesnt matter in the case of trying to sell the house.
It must be regularised in order for a sale to happen.

kkelliher · 31-10-2014 11:38am

sydthebeat wrote: »

this doesnt matter in the case of trying to sell the house.
It must be regularised in order for a sale to happen.

This is not correct. Some people may decide not to proceed with the sale due to this which is their right but I do not believe (I am open to correction) there is any legislation that requires it to be corrected?

RITwing · 31-10-2014 11:40am

People often fear what the Council may "do" to them if they do not have consents.
They should fear more what lenders will NOT "do" in such cases- which is lend.

kkelliher · 31-10-2014 11:42am

RITwing wrote: »

People often fear what the Council may "do" to them if they do not have consents.
They should fear more what lenders will NOT "do" in such cases- which is lend.

Completely agree but I would be very surprised if a lender refused to lend on a property built 40 years ago with or without planning. Where would they stop? Given anything build pre 63 does not have planning and given it cannot in any way have enforcement action against it, how is it an issue?

Aard · 31-10-2014 11:43am

Subsequent owners would not be permitted to carry out any development on the house (eg add a conservatory) without applying for retention. No bank is likely to offer a mortgage for an unauthorised development, even if the 7-yr statute of limitations has passed.

sydthebeat · 31-10-2014 12:10pm

kkelliher wrote: »

This is not correct. Some people may decide not to proceed with the sale due to this which is their right but I do not believe (I am open to correction) there is any legislation that requires it to be corrected?

im sorry but what i said IS correct

in order for a sale to happen it (the unauthorised development) must be regularised.

If not any prospective purchaser will be taking the risk on themselves.

Its not that there are no other consequences of having unauthorised development on site

1. no valid planning application can be made on a site where there is unauthorised development
2. you cannot secure finance on the property

JimsAlterEgo · 31-10-2014 12:14pm

sydthebeat wrote: »

im sorry but what i said IS correct

in order for a sale to happen it (the unauthorised development) must be regularised.

If not any prospective purchaser will be taking the risk on themselves.

Its not that there are no other consequences of having unauthorised development on site

1. no valid planning application can be made on a site where there is unauthorised development
2. you cannot secure finance on the property

A solicitor would advise against it but if its a cash purpose nothing legally stopping it. The new owners could apply for the retention further down the line if needed.

sydthebeat · 31-10-2014 12:19pm

kkelliher wrote: »

Completely agree but I would be very surprised if a lender refused to lend on a property built 40 years ago with or without planning. Where would they stop? Given anything build pre 63 does not have planning and given it cannot in any way have enforcement action against it, how is it an issue?

anything pre 63 is considered to have planning "by default" as it existed before planning regulations.
However, it is actually quite onerous to secure mortgages on these properties.
Banks do not like any property which doesnt have independent certification applied.... similar to how they dont like financing half build houses.

kkelliher · 31-10-2014 12:19pm

How can it be correct when first you say this

sydthebeat wrote: »

in order for a sale to happen it (the unauthorised development) must be regularised.

and then contradict it with this

sydthebeat wrote: »

If not any prospective purchaser will be taking the risk on themselves.

My point was simply that there is no legal requirement on them to regularise.

sydthebeat wrote: »

Its not that there are no other consequences of having unauthorised development on site

1. no valid planning application can be made on a site where there is unauthorised development

I agree completely with this but that did not form part of the OP's query as it would be an issue for any perspective purchaser and not her aunt

sydthebeat wrote: »

2. you cannot secure finance on the property

You appear to be stating this as a fact which I know is not to be the case having being involved with many many clients who have purchased properties exactly like this issue and who in the main all (i recall 1 did not as the property was built in the late 1990's and did not resemble the original planning grant in any way whatsoever) got finance from a bank.

I do not for a second agree that the OP's Aunt should not regularise the issue, but the query was about her fear of it being knocked down which is simply not the case

kkelliher · 31-10-2014 12:20pm

JimsAlterEgo wrote: »

A solicitor would advise against it but if its a cash purpose nothing legally stopping it. The new owners could apply for the retention further down the line if needed.

agree completely and this was the point i was making

mickdw · 31-10-2014 12:27pm

Typically in the ops case, they would be best to apply for retention as the likelihood is that any sale will be stalled until retention is obtained.
It is possible that the buyer would go ahead regardless but imo you would have a 1 in 5 chance of it going through depending on whether it's a cash buyer etc.

Rubberchikken · 31-10-2014 12:32pm

my housr and the few others near me are roughly 70 years old.
two of them went on the market in the past year.
each one had had extensions built onto the back. both without planning permission at the time (probably mid to late 70).

Both of them had to get planning retention before the sales could go through.

sydthebeat · 31-10-2014 12:38pm

well lets just say im referring to proper procedure and due diligence and not "the oirish way".

Solicitors are not perfect, by any stretch of the imagination.

kkelliher · 31-10-2014 12:41pm

sydthebeat wrote: »

well lets just say im referring to proper procedure and due diligence and not "the oirish way".

Solicitors are not perfect, by any stretch of the imagination.

Syd, I couldn't agree more

RITwing · 31-10-2014 12:45pm

kkelliher wrote: »

it would be an issue for any perspective purchaser and not her aunt

In practical terms this becomes the same thing.
There are many threads here where prospective purchasers in this circumstance are correctly advised to walk away from a purchase.
The buyers problem is in fact truly the sellers problem.

RITwing · 31-10-2014 12:47pm

OP your relative needs to find a cash buyer ready to accept the situation as it is
- or obtain retention

mickdw · 31-10-2014 1:09pm

RITwing wrote: »

OP your relative needs to find a cash buyer ready to accept the situation as it is
- or obtain retention

You wouldn't believe some of the compliance certs I've seen issued and accepted by banks in some cases for properties that were being purchased.
One such cert contained a note that said no opinion was being offered on planning condition no 1. That is the condition that states the the property must be constructed in compliance with drawings and documents submitted. I was acting for the purchaser in that case and advised that the cert imo wasnt worth the paper it was written on but solicitors didn't have a major problem with it.

RITwing · 31-10-2014 1:11pm

mickdw - how recently did you see such practice?
During the boom it was "anything goes" - but not recently I assume ?

ruskin · 31-10-2014 1:47pm

Thanks for the replies guys, really appreciated, looks like theres no chance of the house being knocked! If she goes for retention though, will a percolation test thing have to be done and submitted with it? The plumbing has been perfect as long as I remember!

BryanF · 31-10-2014 1:52pm

ruskin wrote: »

! If she goes for retention though, will a percolation test thing have to be done and submitted with it!

septic tank/existing percolation will be inspected by a qualified engineer and a report prepared for the council. This is standard stuff as part of any retention application.

ruskin · 31-10-2014 1:52pm

BryanF wrote: »

septic tank/existing percolation will be inspected by a qualified engineer and a report prepared for the council. This is standard stuff as part of any retention application.

thanks brian!

duckcfc · 31-10-2014 1:54pm

ruskin wrote: »

Thanks for the replies guys, really appreciated, looks like theres no chance of the house being knocked! If she goes for retention though, will a percolation test thing have to be done and submitted with it? The plumbing has been perfect as long as I remember!

You retain the percolation area also. It will all be just a formality and the house will never get knocked. I even know of a guy who built a house in 2005 in different place on his site, changed the house and moved the perc area and his retention sailed through. A house built in the 70s will sail through as well even with defects.

galwaytt · 31-10-2014 2:05pm

duckcfc wrote: »

You retain the percolation area also. It will all be just a formality and the house will never get knocked. I even know of a guy who built a house in 2005 in different place on his site, changed the house and moved the perc area and his retention sailed through. A house built in the 70s will sail through as well even with defects.

I know a house built in 2000, and it's in the wrong place on the site, driveway and gate in the wrong place (vis-à-vis PP), but it has changed hands twice since. Nobody in legal/PP/banks seem to be bothered.

If a guy walks up to your door with a suitcase full of cash, there is no legal impediment to you accepting it.

sydthebeat · 31-10-2014 3:03pm

galwaytt wrote: »

I know a house built in 2000, and it's in the wrong place on the site, driveway and gate in the wrong place (vis-à-vis PP), but it has changed hands twice since. Nobody in legal/PP/banks seem to be bothered.

If a guy walks up to your door with a suitcase full of cash, there is no legal impediment to you accepting it.

mostly likely that dwelling has a cert of compliance which may be qualified to include those issues.

Incompetent or uncaring solicitors will allow sales with these certs, good solicitors will not.

the guy with the bag of cash is only taking ownership of someone elses problems.

mickdw · 31-10-2014 3:44pm

RITwing wrote: »

mickdw - how recently did you see such practice?
During the boom it was "anything goes" - but not recently I assume ?

2 months ago.
It was for a house that had been build partially in the boom. Taken by bank, bought by cowboy builder and finished then put on the market. The cert was completed by an architect on a visual inspection basis on completion and had no input into the build.
From what I see, the only change from boom to now is that the banks are only lending to more secure persons, not alot of change in regard to certification requirements.

Another case, I surveyed and reported that I was not satisfied as to the structural condition of the property and advised further investigation re posible pyrite issues.
Buyer foolishly went ahead anyway and the bank issued the funds. Seems they simply sent a driveby valuer much like during the boom and he gave the ok.
I had to cover my ass there alittle getting confirmation back through their solicitor that they were aware of what i had highlighted and we're going ahead of their own accord.

RITwing · 31-10-2014 4:59pm

spin777 · 01-11-2014 10:07pm

It has to be built for seven years with undisturbed use for it to be exempt from having planning, it used to be five years. You could get a well known reputable architect to provide a letter stating this and add it to the file with the title deeds, might eliminate the cost and time taken to get retention.

I can 100% guarantee you will not have to knock it even if they refused the retention application, there is nothing the council can do.

sydthebeat · 01-11-2014 10:19pm

spin777 wrote: »

1. It has to be built for seven years with undisturbed use for it to be exempt from having planning, it used to be five years.

2. I can 100% guarantee you will not have to knock it even if they refused the retention application, there is nothing the council can do.

1. Completely wrong, for reasons already outlined in this thread.

2. Completely correct.

spin777 · 01-11-2014 10:38pm

"

sydthebeat wrote: »

1. Completely wrong, for reasons already outlined in this thread."

How is that wrong. Statute of limitations, also known as the seven year rule

sydthebeat · 01-11-2014 10:47pm

spin777 wrote: »

sydthebeat wrote: »

1. Completely wrong, for reasons already outlined in this thread.

How is that wrong. Statute of limitations, also known as the "seven year rule"

Because it doesn't become "exempt from requiring planning"

Its unauthorised, and will remain unauthorised until it's regularised. All that the statute covers is the council proceeding with enforcement actions.

It's a myth that it become exempt from planning just because the statute of limitations has expired.

spin777 · 01-11-2014 10:52pm

Sorry perhaps the word exempt wasn't ideal. But you DO NOT have to apply for permission for it and doing what I stated might be a way to simplify and explain it to a potential buyer and avoid the possible large costs of a retention application.

sydthebeat · 01-11-2014 10:59pm

spin777 wrote: »

Sorry perhaps the word exempt wasn't ideal. But you DO NOT have to apply for permission for it and doing what I stated might be a way to simplify and explain it to a potential buyer and avoid the possible large costs of a retention application.

We're going over old ground here but:

1. It become very difficult to get finance on a property with unauthorised development

2. You cannot make a valid planning application for anything else if there's unauthorised development on site

3. It shouldn't be allowed to sell (or buy) a property which isn't authorised and a good solicitor won't allow it.

4. It doesn't avoid the retention fees, it just means that that headache is passed onto another person.

spin777 · 01-11-2014 11:25pm

sydthebeat wrote: »

1. It become very difficult to get finance on a property with unauthorised development

Possibly but it is case specific and we don't know enough about the given property, I financed a inner city Pre 63 property earlier this year, no big deal. won't be a big deal if the ops aunt is selling a small cottage in the countryside plus that was the whole point of my post, a smart way to explain the statute of limitations to a potential buyer and to give them comfort.

Also, over 50% of sales at the moment are cash buyers so finance doesn't matter.

sydthebeat wrote: »

2. You cannot make a valid planning application for anything else if there's unauthorised development on site

True

sydthebeat wrote: »

3. It shouldn't be allowed to sell (or buy) a property which isn't authorised and a good solicitor won't allow it.

Complete horsesh$te, who "shouldn't allow it? It is not illegal to buy it or sell it, this has already been outlined in the thread. If you are looking for a practical example then here is one people can relate to:

There is a row of B&B's on what I think is called College Road in Galway, basically every third or fourth house is a B&B, very few of them have planning but they are covered under the seven year rule, these properties regularly change hands, through reputable solicitors.

sydthebeat wrote: »

4. It doesn't avoid the retention fees, it just means that that headache is passed onto another person.

What headache? The house is advertised, you like it you buy it you live in it, why pay possibly €6,000-7,000 now to "fix" something that might not be an issue for another thirty years. It sounds from the op that his Aunt has a small house in the country, possibly valued at 60-70k and your advise is to spend possibly 10% of the houses value to fix something when you haven't even tested the market for a buyer who will buy without "fixing" the problem. Thats a bad use of money in my books.

sydthebeat · 01-11-2014 11:52pm

I won't bother arguing the ins and outs with you on this but if these are properties you arrange finance for, youd better hope the last one standing left holding the hot potato isnt the litigation type.
Bad practise abouds in the industry, No excuse to condone it.

spin777 · 01-11-2014 11:57pm

sydthebeat wrote: »

I won't bother arguing the ins and outs with you on this but if these are properties you arrange finance for, youd better hope the last one standing left holding the hot potato isnt the litigation type.
Bad practise abouds in the industry, No excuse to condone it.

I bought it and got finance for it. I'm not holding the hot potato, its more of a beautifully shaped potato that was cheap as chips because people like you don't have a deep enough understanding of the planning laws and think these issues are major when they are not.

sydthebeat · 02-11-2014 12:00am

Yeah fine...

You keep deluding yourself

People like me won't be there to drag you out of the hole your in.

db · 03-11-2014 2:08pm

OP, there was an almost identical case in my area a few years ago and the files are still available to view online. PM me if you want the details.

In this case the original planning was in 1981 and the house was built in the wrong place with the septic tank / percolation in a different area of the site. The boundaries of the site were also changed. The sellers had to get retention permission before the sale could go through and as a result of this the septic tank and percolation had to be changed with full site assessment and design.

RITwing · 03-11-2014 3:01pm

spin777 wrote: »

its more of a beautifully shaped potato that was cheap as chips

You want the op to sell as cheap as chips?
They will have to if they follow your advice.

Victor · 03-11-2014 3:21pm

kkelliher wrote: »

This is the crux of my position. It may be unauthorized development but as the statute has passed and no enforcement can be applied.

Some councils are taking the position that while a prosecution can't happen, enforcement can.

kkelliher wrote: »

Completely agree but I would be very surprised if a lender refused to lend on a property built 40 years ago with or without planning. Where would they stop? Given anything build pre 63 does not have planning and given it cannot in any way have enforcement action against it, how is it an issue?

Most pre-63 don't developments need planning permission.

mickdw wrote: »

Another case, I surveyed and reported that I was not satisfied as to the structural condition of the property and advised further investigation re posible pyrite issues. Buyer foolishly went ahead anyway and the bank issued the funds. Seems they simply sent a driveby valuer much like during the boom and he gave the ok.

Valuers do valuations, not structural inspections.

spin777 · 03-11-2014 3:35pm

RITwing wrote: »

You want the op to sell as cheap as chips?
They will have to if they follow your advice.

No, I think that particular property was cheap because it was a receiver sale and they were given no warranties, no declaration of identity etc etc, typical lazy **** with receivers not willing to get something tidied up to improve the price, as it was pre 63, the statute of limitations applies to a lot of them so getting retention wouldn't of helped the price imho, actually it would of

I would think though a letter from a reputable architect or planning consultant outlining the seven year rule (statute of declaration) may be sufficient to aid in the resale without spending possibly €6,000 or €7,000 on a retention. I have been involved in many transactions where the solicitors didn't fully gasp this without explaining it to them, this from a small window/velux with no planning to a commercial warehouse operating as a car sales garage also with no planning.

I think it is unfair to advise the OP to spend thousands when you don't know with absolute certainty that it can't be sold as is.

Also, a retention might be detrimental as not alone will you have the cost of the application (minimum 4-5k, remember retention fees are higher), if they make you change the percolation and/or septic tank this could be €10-15k.!!

I completely agree with kkelliher about the bank lending. They wouldn't have a massive issue with this as a lot of old properties have lost planning files or omitted details like compliance certs that are lost and they still go through.

RITwing · 03-11-2014 3:40pm

Unless the OP finds a buyer who is happy with house as is i.e. does not want to extend and that buyer is unaware that they - the buyer - if they later want to obtain permissions they will incur the reality that

a retention might be detrimental as not alone will you have the cost of the application (minimum 4-5k, remember retention fees are higher), if they make you change the percolation and/or septic tank this could be €10-15k.

then the OP may face a tricky sale.

But I feel we are going in circles now.

spin777 · 03-11-2014 3:49pm

RITwing wrote: »

Unless the OP finds a buyer who is happy with house as is i.e. does not want to extend and that buyer is unaware that they - the buyer - if they later want to obtain permissions they will incur the reality that

then the OP may face a tricky sale.

But I feel we are going in circles now.

I think that is a fair summary. I think its worth testing the market, make sure the solicitor and auctioneer are aware of the statute of limitations and if you come up against a big resistance from buyers then go down the retention route. PLEASE, PLEASE, PLEASE test the market first, you might be lucky enough to get a buyer and it might save you the time and cost of a retention.

mickdw · 03-11-2014 6:30pm

Victor wrote: »

Valuers do valuations, not structural inspections.

And you don't think a serious and quite visible structural issue would affect the valuation of the property?

Foxychick · 26-11-2014 12:06am

Hey Ruskin,

Just wondering what your aunt decided to do in the end? Parents in similar situation were thinking of applying for retention and selling to downsize but if that process is too much hassle they will prob stay where they are.

BryanF · 26-11-2014 1:37am

Foxychick wrote: »

Hey Ruskin,

Just wondering what your aunt decided to do in the end? Parents in similar situation were thinking of applying for retention and selling to downsize but if that process is too much hassle they will prob stay where they are.

In most cases it's straight forward. This is standard stuff for most archs

Foxychick · 26-11-2014 7:31pm

BryanF wrote: »

In most cases it's straight forward. This is standard stuff for most archs

Cool thanks,

Do you have any idea how long this takes and how much it costs?

selling house with no planning

Comments