Why you could still get into trouble over an house extension even if planning rules are relaxed
Government plans to relax planning restrictions on building home extensions have been in the news lately. But even if current restrictions are amended, many homeowners may still be prevented from building an extension because of a covenant affecting their property.
A covenant is a legal agreement set out in a transfer or conveyance of the property, which can be enforced by a developer, a council, or even neighbouring owners. Such covenants are often imposed when a new house is first sold, or when a council sold off a house under ‘right-to-buy’ legislation.
Covenants can be enforced against successive owners of the property, so anyone who buys a house which is affected by some covenants can be sued for doing something which is prohibited by them.
Many homes are affected by covenants restricting home extensions
A common covenant is one prohibiting the erection of any new building, or extending an existing building on the property, without the consent of the original developer. Former council-owned houses are also commonly subject to such a covenant requiring consent from the council for any extension.
It is a mistake to assume that such covenants are somehow linked with planning legislation. They exist quite independently of planning law, and will continue to affect a property even if regulations on extensions are relaxed.
The fact that an extension has been given planning consent, or does not require consent, does not mean that approval is not required under such a covenant. Someone who has the benefit of the covenant could sue, even after an extension has been built.
Planning permission does not equal consent under a covenant
If the local council originally imposed a covenant, a planning or building regulation application is not effective as an application for consent under the covenant. This is because such matters are dealt with by separate departments which will only be concerned with applying the relevant regulations, and will not be aware of the existence of any covenant. A separate application has to be made in each case, referring to the conveyance or transfer containing the covenant.
Failing to obtain requisite approval to an extension can delay the sale of a property. The buyer’s Conveyancing Solicitors will investigate the existence of any restrictions affecting the title. If has been built without necessary consent, then the seller will either have to try and obtain consent or pay for an indemnity insurance policy to be taken out to protect the buyer against future claims.
In order to find out if your home is affected by any covenants restricting you should contact the Conveyancing Solicitors who acted when you bought the property. They will also be able to advise you as to whether building an extension would breach any restriction.
Alternatively you can obtain a copy of your title direct from the land registry (if title is registered. ) Sometimes the register merely states that the property is subject to restrictions contained in an earlier deed which is filed at the registry, in which case you will also have to buy a copy of that deed. If your title is unregistered then your Conveyancing Solicitor will be able to tell you who has the title deeds.
Leasehold properties are also subject to covenants
Leasehold properties are also likely to be subject to covenants against making any alteration or extensions. Although the owners of most flats are unlikely to be able to extend their properties, owners of leasehold houses (and perhaps ground floor flats) may want to do so. However before carrying out any work owners you should check what your lease says – or if in doubt check with your Conveyancing Solicitor.