Building Regs, HMO and Reselling

[Billycat]

Hi there,

I would be really, really grateful if people could give me some advice on my maisonette. I applied for an HMO licence because it is rented to three sharers. I have had a letter back from the council saying that the conversion (property built in 1890, conversion took place in 1994) of the building into a ground floor flat and my two storey maisonette did not have Building Regulations Approval.

I have looked into this a bit now and realise that it is a problem both for renting the property and for selling. My understanding of the legislation is that I will need to apply for retrospective building regs approval and do the work required if I am to continue to rent out the property (even if to two people and not as an HMO). Is that correct? As my property is on the first and second floor will the council want work to be carried out in the ground floor property (owned by someone else) as well before issuing me with building regs approval for my property or will they be treated separately?

Something that I don't understand is why the lack of building regulation approval didn't arise when I bought the property in 2006. Is building regs approval not checked by solicitors as a matter of course when someone buys a converted property? It didn't come up on the survey and I have a mortgage on the property and the mortgage company didn't raise the issue either.

I am hoping that the council have made a mistake but that does seem pretty unlikely! Apart from applying for retrospective approval and spending the money to bring it up to standard, is there anything I can do? Will I have a lot of difficulty selling the property if the work is not carried out or are these issues quite common? I noticed that building regs approval are checked as part of the HIPs now!

Many thanks for any advice you can give me.

[JustinN]

The first point is that, yes, you will need to obtain retrospective Building Regulations consent. I believe the work would be required to current (not 1994) standards, and it is very likely to affect the whole building, not just your maisonette. You would therefore need the cooperation of the owner of the ground floor flat

You are correct that the problem will prevent the sale or mortgage of the property, because it will probably now be flagged up in the council's records, so will be revealed by search results. Indemnity insurance will not be available, because the council is actively aware of the problem.

In 2006, one would expect a conveyancer to check that Building Regulations consent was obtained. However, councils' records in respect of Building Regulations applications and approvals were not reliable or accessible until relatively recently; were the work was carried out more than about 10 years ago, it is quite common not to be able to get positice confirmation of compliance, not because the regulations were not complied with or consent was not obtained, but because of the inadequacy of the old council records.

If the work is more than a year old, it is extremely rare for the council to take enforcement action, and your conveyancers in 2006 may have taken the view that, because enforcement action was extremely unlikely, there was no problem in practice

Even if they had been ultra-cautious, and insisted on indemnity insurance despite the extreme remoteness of the risk of enforcement action, that indemnity would only have protected you against enforcement action being brought for non-compliant work in 1994, not for your inability to get HMO registration due to non-compliance, and it would not cover the cost of now making the work compliant.

A grim picture, I'm afraid

I recommend you (and the owner of the ground floor flat) consult an approved Building Regulations inspector that is reasonably local to you for advice as to what steps need to be taken to make the building compliant. Y suggest you do not ask the council for this advice - these days, they will probably charge as much as an outside approves inspector, and they will have no incentive to avoid "gold-plating" the requirements

I'm sorry that my view is so grim, but I hope it helps you see the issues and how to deal with them

[Billycat]

Many thanks for your advice. As you say that the council records were inadequate and therefore my solicitor may not have been able to find the building regs information, can I be 100% sure that the council have got it right when they say that the conversion does not have approval? Might it be that they haven't got complete records? Or maybe that is wishful thinking on my part!

I am prepared to have the work done but what do I do if the owner of the ground floor flat doesn't want to cooperate? Are the council likely to pursue it/prosecute if I drop the HMO application and move back into the property myself?

Many thanks for your help.

[JustinN]

If the council says it has records that show the Building Regulations were not complied with, I don't think they will be lying. The point is that, at the time of your purchase, your solicitor may have assumed that the lack of positive evidencve of compliance was due to inadequate record-keeping, and would not want to raise this with the council in case that blighted the chances of getting indemnity insurance cover later, if needed

If the work needs cooperation from the ground floor owner and s/he will not cooperate, then you cannot force the issue

The council is unlikely to take enforcement action over a breach that is more than a year old, but that is not the same as saying they will turn a blind eye altogether: they will not let you have an HMO licence