Question

1: Enforcement:

a): What is the enforcement period for Building regulations and for planning consent?

Time limits for enforcement action to be taken – s.171B TCPA
The local planning authority may only take enforcement action during the relevant period for
enforcement. It is vital you find out when the relevant ‘development’ took place (be it building
works or a material change of use). If the time limit for local planning authority action has
expired, no further action will be required of the seller.

For building works carried out without planning permission, enforcement action can be
brought within four years following substantial completion of the works.
The time for enforcement for ‘material changes of use’ is 10 years from the date of the change
of use, unless the ‘material change of use’ is to a single dwelling house, in which case the time
limit is four years.

The time for enforcement for any breach of a condition attached to a planning permission is 10
years. The 10 year time period starts to run from the date of the breach.
All these time limits are set out within s.171B TCPA, which is included in the PLP handbook.

What if the development was concealed?
If there has been a concealment of development, the local planning authority is not limited by
the above time restraints, and could bring enforcement action even if the relevant enforcement
period appears to have passed.

6.2 Enforcement of Building Regulations
The local authority may take proceedings for a breach of the requirement for Building
Regulations approval within 12 months of any infringement. Please note, however, that s.36(6)
Building Act 1984 allows a local authority to apply to court for an injunction to enforce the
regulations by injunction at any time. There is therefore effectively no time limit for the
enforcement of Building Regulations.


Note the potential impact of the case of Cottingham v Attey Bower and Jones (a firm) [2000]
EGCS 48. Referring to the effect of s.36(6) Building Act 1984, the case emphasises the need for
a solicitor to take all practical and reasonable steps to obtain copies of building regulation
approvals. In this case, the seller alleged in its replies to enquiries that it had obtained building
regulations approval for certain structural works carried out eight years previously. The buyer’s
solicitor did not obtain copies and completed without them. In fact, the application for building
regulations approval had been refused and the house was found to have structural problems.
The buyer’s solicitor’s failure to take steps to obtain copies of the building regulations
approvals was held to amount to negligence.

Breach of Building Regulations is a strict liability offence. In order to protect a buyer against the
risks of enforcement where works may have been carried out in breach, the seller should be
asked to retrospectively obtain a Regularisation Certificate from the local authority.
Alternatively insurance may be available.


b): What is the difference between the two?

s.57(1) Town and Country Planning Act 1990 (‘TCPA’): planning permission is required for
‘development’.
1.1 Development and ‘permitted development’

1.1.1 Development is defined in s.55(1) TCPA as:

a) the carrying out of building, engineering, mining or other operations in, on, over or under
land; or
b) the making of any material change in the use of any buildings or other land.
Planning permission is therefore required for:
· any building works; and
· any material change in use.


1.1.2 These are two separate and distinct elements to the definition of ‘development’ and it is
important to remember that the same scheme may require planning permission for both of
these components. An example of this is the construction of a new factory on previously
undeveloped farmland. In this situation, there would be both building works (the building of the
factory) and a material change of use (from agricultural to industrial purposes). Consequently,
planning permission for both strands of development would be needed.

In other situations, there may only be one part of the definition of development occurring,
meaning that planning permission is required for just that single component.
For example, if a shop was changed into a pub without any external building works taking place,
there would just be a material change of use needing consent.
Conversely, if building works were undertaken to the exterior of a property but the use of that
property remained the same, the only thing requiring planning permission would be the
building works.
You should consider each set of circumstances on an individual, case-by-case basis.

Building Regulations
6.1 All buildings have to be constructed or altered in a way that complies with certain rules (e.g.
concerning materials used). If building works are to be undertaken in relation to a property, the
works must comply with relevant building regulations. The building regulations regime in
England and Wales derives from two main statutory instruments made under the Building Act
1984, namely, Building Regulations 2010 and Building (Approved Inspectors etc.) Regulations
2010.

Building Regulations approval is separate and additional to any planning permission that may
be required for the building works. Indeed, a formal application for Building Regulations
approval may be required for building works even if a formal application for planning
permission is not necessary. For example, if the building works are permitted development (e.g.
a small extension to a residential property not in a Conservation Area), then an application for
planning permission would not be required because the works would be covered by the GPDO
2015, but Building Regulations approval must still be expressly obtained.

A person intending to carry out building works must either submit full plans or serve notice on
the local authority building control service before works are commenced. The building works
must then be commenced within three years of the Building Regulations approval. After
satisfactory completion of the works, the local authority will inspect and then issue a certificate
of compliance with building regulations. A single fee is payable for obtaining approval and the
issue of the certificate.


Question 2: Gift money
The CML Handbook is a set of standard instructions from mortgage lenders to solicitors when
dealing with conveyancing transactions. The CML handbook is issued by the Council of
Mortgage Lenders (CML) and applies only to those lenders who are members of the CML. When
acting in a purchase where the purchaser is taking a mortgage it is usual for the solicitor to do
the conveyancing for both lender and purchaser and in the same way that not following the
purchaser client's instructions can lead to a negligence claim, failure to follow the CML
Handbook can leave a solicitor in hot water.

The CML Handbook covers most aspects of a conveyancing transaction which might impact on a
lender's security from what identity checks a solicitor should be performing to what minimum
term of lease will be acceptable to what insurance arrangements need to be in place. Even if
not acting for a lender, a solicitor would do well to be aware of the contents of the CML
Handbook as it contains some useful guidance for conveyancing transactions.


a): Is a gift of money from the buyer's family acceptable to the lender according to CML,

It depends on the lender. To some lenders it is not acceptable. But to most the CML
requirement is:

We do not require you to report a gifted deposit subject to you being satisfied that the
following conditions are met:

The property is being purchased to live in and will not be let.

The gift is from an immediate family member(s), who confirms it is not repayable. Gifts from
unrelated third parties, including friends and employers are not acceptable.

The family member(s) must be related to one of the borrower(s) by any of the following (see
also the definition in Part 1, paragraph 1.13);

• birth/blood relative
• spouse or civil partner, child, step children, adopted children and in-laws
• A co-habitee

A Deed of Trust or Second Charge to protect the gifted deposit is not acceptable.

You must continue to report a gifted deposit from a family member who is also the Vendor.
Note we do not accept family gifted deposits in Buy to Let transactions where the Vendor is a
family member.

b): and if yes, does the CML need anything from you and buyer client?

Where a gifted deposit is acceptable you must obtain and retain on your file a letter, addressed
to you, signed by each individual family member(s) gifting the deposit which confirms the
following information;

• The name and address of the family member gifting the deposit
• Their relationship to the borrowers(s)
• The name and current address of the borrower(s)
• The address of the property being purchased
• The amount being gifted and the source of the funds
• That the gift is not repayable and the family member(s) providing the gift will not acquire an
interest in the property
• The letter must be dated within 3 months of completion

You must ensure clear bankruptcy searches are carried out against the borrower and all parties
contributing to the balance of the purchase price. You must notify us if you cannot obtain clear
searches.

You should report any other circumstances where the balance of the purchase price is not
being provided in accordance with Part 1 and in doing so must wait for our written instructions
prior to proceeding. Please write to our Customer Services Centre (see offer for address and fax
number).

Question 3): Insurance and repair provisions for leasehold properties:

i): Will the CML allow the Tenant to insure and repair.
Yes according to -
CML 5.14.5
You should ensure that responsibility for the insurance, maintenance and repair of the common
services is that of:
• the landlord; or
• one or more of the tenants in the building of which the property forms part; or
• the management company - see sub-section 5.15.

CML 5.14.6
Where the responsibility for the insurance, maintenance and repair of the common services is
that of one or more of the tenants the lease must contain adequate provisions for the
enforcement of these obligations by the landlord or management company at the request of
the tenant.


ii): if yes, what two conditions does the CML say have to be in the lease for the Tenant repair
provisions to be acceptable.

1) the lease must contain adequate provision - CML 5.14.6

2) 5.14.7
In the absence of a provision in the lease that all leases of other flats in the block are in, or will
be granted in, substantially similar form, you should take reasonable steps to check that the
leases of the other flats are in similar form. If you are unable to do so, you should effect
indemnity insurance (see section 9). This is not essential if the landlord is responsible for the
maintenance and repair of the main structure.

iii): Will the CML allow the management company to insure and repair.
Yes, according to CML provision -
5.15 Management Company
5.15.1
In paragraphs 5.15.1 to 5.15.2 the following meanings shall apply:
• “management company” means the company formed to carry out the maintenance and
repair of the common parts;
• “common parts” means the structure, main walls, roof, foundations, services, grounds
and any other common areas serving the building or estate of which the property forms part.
If a management company is required to maintain or repair the common parts, the
management company should have a legal right to enter the property; if the management
company’s right to so enter does not arise from a leasehold interest, then the tenants of the
building should also be the members of the management company. If this is not the case, there
should be a covenant by the landlord to carry out the obligations of the management company
should it fail to do so. For leases granted before 1 September 2000, if the lease does not satisfy
the requirements of paragraph 5.15.1 but you are nevertheless satisfied with the existing
arrangements affecting the management company and the maintenance and repair of the
common parts and you are able to provide a clear certificate of title, then we will rely on your
professional judgement.

If yes, what will they require?

CML 5.15.2
• You should make a company search and verify that the company is in existence and
registered at Companies House.
• You should also obtain the management company's last three years' published accounts
(or the accounts from inception if the company has only been formed in the past three
years).
• Any apparent problems with the company should be reported to us (see part 2). If the
borrower is required to be a shareholder in the management company, check part 2 to
see if you must arrange for the share certificate, a blank stock transfer form executed by
the borrower and a copy of the memorandum and articles of association to be sent to
us after completion (unless we tell you not to).
• If the management company is limited by guarantee, the borrower (or at least one of
them if two or more) must follow the procedure necessary to become a member after
completion.

Question 4:

What does the CML say about building insurance (different from above) and what are cml
requirements for the policy to be acceptable.

• They must make reasonable enquiries to satisfy themselves that buildings insurance has
been arranged for the property from no later than completion.


• There is no description of what type of buildings insurance must be in place. For
example, no specimen risks are set out in section 6.14.1 nor is there any reference to making
sure that the value insured is adequate. In theory at least, any buildings insurance, no matter
how inadequate (in terms of risk coverage, conditions, excesses or value insured) will suffice.


• Comment by the Law Society on this change to the CML Handbook suggests that these
reasonable enquiries should be made of the borrower. Certainly this is likely to be the sensible
course, but the CML announcement does not actually limit the source of the information in this
way. So, it seems that obtaining confirmation from the borrower that cover is in place may be
sufficient to meet this instruction.



• They must remind the borrower to have in place no later than completion, buildings
insurance which complies with the requirements of the mortgage contract, and maintain such
insurance throughout the mortgage term.



There is no obligation on the conveyancer to police either of these requirements. This is
understandable as regards future insurance (because the conveyancer is unlikely to have an on-
going relationship with the buyer at that point). The reliance on the borrower to organise
compliant insurance at the outset (without the lender’s solicitor checking that it complies)
leaves the lender potentially exposed. On the face of it, their only remedy would be against the
borrower.

This change to the CML Handbook was introduced after discussion with the Law Society, which
is concerned that the tendency of borrowers to organise insurance themselves and to do so
online leaves conveyancers unable to easily check whether the policy that has been organised
meets the bespoke requirements of the lender.

The first move in the direction of releasing conveyancers from extensive insurance obligations
was in December 2014 when the detailed list of insured risks was removed from part 1 of the
CML Handbook, and lenders were left with the choice of imposing bespoke insurance
requirements via part 2. Many lenders currently use that mechanism. Typical insurance
requirements imposed in part 2 are that the insured risks must include flooding, that excesses
(apart from for subsidence) must not exceed £500 and that the sum insured must at least
exceed the amount of the loan. From 30 November 2015, lenders will no longer be able to
impose such requirements via the CML Handbook and their panel solicitor will not be bound, by
the CML Handbook, to check that the cover organised by the borrower complies with these
requirements.

Change to approved form of certificate of title required
The change will apply to certificates of title lodged from 30 November 2015. Practical Law
Property assumes that the approved form of certificate of title (both long form and short form)
that has been agreed between the CML and the Law Society will also be amended to reflect this
change. This certificate is referred to in paragraph IB3.7 of the SRA Code of Conduct 2011
(latest edition April 2015). In paragraph 2(vi) of the certificate the conveyancer currently states
that “they have received satisfactory evidence that the buildings insurance is in place, or will be
on completion for the sum and in the terms required by [the lender]”. This will need to be
changed if the conveyancer will not be aware of the bespoke requirements of the lender. No
announcement has yet been made regarding changes to the certificate of title.

Potential exposure for lenders
Whilst the Law Society concern is understandable, releasing the panel lawyers from the
obligation to check insurance will leave the lender potentially exposed. Lenders could (and
often do) list their insurance requirements either in the mortgage offer letter and/or the
mortgage conditions that apply to the loan. The borrower agrees to perform the obligations in
the offer letter, and the mortgage deed imposes on the borrower compliance with the
mortgage conditions. So, if the borrower fails to organise insurance that meets the lender’s
standards, the lender will have a claim in contract against the borrower. The mortgage
conditions will usually give the lender the right, in those circumstances, to organise better
insurance cover and charge the cost to the borrower. However, it will be up to the lender to
spot that the insurance cover that is on foot is not adequate. That was always the case once the
loan was up and running, but there was the initial reassurance for the lender that their panel
solicitor had checked the cover was up to standard at the start of the mortgage. From 30
November 2015 this will no longer be the case.

Lenders should be even more alert to this risk of inadequate insurance cover now that the
introduction of Flood Re is imminent (expected to start in April 2016). From that point, there
will be significant numbers of residential properties which fall outside the flood insurance
safety net that will be provided, for up to 25 years, by Flood Re. Those properties which are
determined as being at risk of flooding, but cannot get cover under Flood Re, will find that their
premiums and excesses rise (well above £500) and cover may be subject to conditions which
require works to be done. Some properties may not be able to get flood cover at all. Lenders
will often need more reassurance, not less, that flood cover is actually available. Yet, under the
revised CML Handbook, their panel solicitor will, post-30 November 2015, have no obligation to
check this. 


Practical comment
The likely outcome is that lenders may impose insurance checking requirements by a different
method. In the commercial lending field, many lenders already instruct their legal advisers to
check that the insurance meets the terms of the mortgage offer and/or mortgage conditions.
Whilst imposing bespoke instructions on top of the CML requirements cuts across the aim of
the CML Handbook as setting the standard brief, lenders are able to do this.
It is also worth remembering that many of the smaller building societies currently instruct their
panel lawyers on the basis of the standard instructions issued by the Building Societies
Association (BSA). These do still impose an obligation on the panel lawyer to check the terms of
the buildings insurance against the lender’s requirements.

The changes to the CML Handbook only affect residential property loans. Lenders on
commercial property will still be free to impose whatever instructions they like on their panel
lawyers.

There is a different way for lenders to protect themselves against the risk to their security of
the property turning out to be at flood risk and having inadequate insurance to make good
flood damage. Lenders could insist that borrowers pay for a desktop search to identify the risk
(just as lenders often do with environmental searches and planning searches). The results of
that search could put both the borrower and lender on notice that there might be a problem.
They can then investigate further, check out insurance availability, and adjust the purchase
price or loan amount accordingly. DEFRA and Flood Re are very keen to encourage
homeowners, both existing and prospective, to take a more active role in identifying and
managing their risk from flooding. The first step is discovering that the property is at risk.
Lenders can play an important part in driving this change in homeowner behaviour on this
issue, and without cost to the lenders. This is already happening in the commercial lending
environment. We will see whether residential lending arms of the same institutions recognise
that they have similar concerns.


Question 5: New build warranty

If you are acting for someone who is buying a new flat which has been part of a house
converted into 2 flats and is now sold as 2 leasehold properties

i) Would NHBC cover be available in those circumstances and

NHBC Standards for Conversions + Renovations 2005:

WHAT ARE ‘CONVERSIONS AND RENOVATIONS’?
Conversions and renovations are projects that involve work to existing buildings or parts of
existing buildings. Examples include:
• the conversion of an existing residential building into flats

WHICH STANDARDS APPLY?
New work that forms part of the conversion or renovation should be carried out in accordance
with the NHBC Standards.

• The builder should arrange for survey(s) of the building to be carried out in accordance
with Clause C1 before applying to NHBC for Buildmark cover.

• A copy of the survey report(s), including any specialist reports, should accompany the
application for Buildmark cover. The reports will be used to establish if the project is
acceptable for Buildmark cover.

• NHBC may impose specific requirements for the project, which must be complied with as
a condition of providing Buildmark cover.

• NHBC relies on the details supplied by the builder when it accepts a project for Buildmark
cover. Acceptance of a project does not absolve the builder from obligations under the
Rules and Buildmark in respect of any defects, whether or not they are located in parts
of the building covered by the reports or NHBC’s specific requirements.


ii) Would the CML provisions expect to see NHBC cover.

Lenders will generally require that it was built or converted with the benefit of a warranty /indemnity
scheme acceptable to them. Lenders will indicate acceptable schemes in the lenders handbook.

• CML does not approve or endorse warranties and schemes. It is up to the individual lender
to decide which schemes they are prepared to accept.