Selling a house without planning permission for building work can cause difficulties. But it’s not an insurmountable problem, as Mark Morton explains in this week’s legal Ask the Expert
The Question
My mother died recently leaving the family home to my brother, sister and me. We are in the process of selling the home, but we have discovered there are was no planning permission for an extension which was completed 10 years ago.
Apparently, the sale cannot go ahead without this! What should we do? Can we rectify the situation, or might we have to reduce the asking price to factor in any costs a buyer might incur from this?
Mark’s Answer
The lack of planning permission for the extension is a common issue that can arise during property sales, but it is often resolvable. Here’s how to address the situation:
1. Understand the implications of missing planning permission
If planning permission was required but not obtained at the time of the extension, the development is considered unauthorised.
Local authorities have the right to enforce action against such developments, which may include requiring the property to be restored to its original state.
However, the likelihood of enforcement action depends on several factors, including the time elapsed since the work was completed.
As of 25th April 2024, extensions completed without planning permission must demonstrate 10 years of continuous use to be considered lawful. Since the extension in your case was completed 10 years ago, this might work in your favour.
2. Options to rectify the situation
You have two main routes to regularise the extension:
Certificate of Lawfulness
A Certificate of Lawfulness is a formal application that confirms the development has become lawful due to the passage of time (10 years in this case).
This is often the simpler and more cost-effective option, as it relies on proving continuous use without enforcement action during the required time period.
You will need to provide evidence, such as photographs, utility bills or other documents, to show the extension has been in place and used as part of the property for at least 10 years.
Retrospective planning permission
If a Certificate of Lawfulness cannot be obtained, you may need to apply for retrospective planning permission.
This involves submitting a full planning application for the extension after the fact. While more complex than a Certificate of Lawfulness, it allows the council to formally approve the development.
This route may require you to meet current building regulations and planning standards, which could involve additional costs or modifications to the property.
3. Impact on the sale price
While pursuing either option, it’s essential to be transparent with potential buyers. The uncertainty around planning permission might deter some buyers or reduce offers. You may need to consider adjusting the asking price to reflect:
- The cost and time involved in resolving the issue.
- Potential risks or expenses the buyer might face if the planning issue remains unresolved.
Alternatively, resolving the matter before completing the sale could help maintain your asking price and speed up the transaction.
4. Seek professional assistance
Given the legal and technical complexities, you should consult a lawyer and possibly a planning consultant to guide you through the process. They can:
- Help you determine which route is most appropriate.
- Assist with the preparation of the required documentation.
- Liaise with the local council on your behalf.
5. Next steps
- Gather evidence to support an application for a Certificate of Lawfulness or retrospective planning permission.
- Consult with a lawyer or planning expert to decide the best course of action.
- Inform your estate agent about the situation to manage buyer expectations.
Addressing the planning issue promptly will help ensure a smoother sale process. If time or costs are a concern, adjusting the sale price might be a practical compromise, but resolving the issue is often the best way to maintain value and attract serious buyers.
Mark Morton is a residential conveyancer at Parfitt Cresswell (Banstead Office)
Meet our expert
Mark Morton is a residential property licensed conveyancer for Copley Clark (the trading name of Parfitt Cresswell). He has a career spanning two decades and joined Parfitt Cresswell in February 2020.
If you would like to ask him or one of his colleagues a legal question connected to your home or related finances email kate.saines@emap.com
