Legal Q&A:Can we build a flat above our garage?

We've just bought a small house that needs complete renovation. What do we need to do if we want to rebuild the garage and put a self-contained studio on top?

Question: We have just bought a small house that needs complete renovation. There is an old garage that's falling down, so as part of the refurbishment we are thinking of demolishing it and building a new double garage in its place with a self-contained studio over the top which we could let.

When we bought the house the estate agent mentioned restrictive covenants but we have no more information. What do we need to do if we want a new garage and studio? 

Answer: When you bought the house your solicitor should have told you about any covenants affecting it. See if your title deeds reveal any covenants restricting the way the property may be used. For instance, there may be a covenant prohibiting it from being used other than as a single private dwelling, which would likely preclude a second dwelling over the garage.

Restrictive covenants will bind the land and run with it, but are not always enforceable. If they are very old, or if the person entitled to benefit from them is not known, it may be possible to take out indemnity insurance to cover the risk of a breach of covenant. If it is possible to establish who benefits from the covenants you may be able to ask if they will lift them, though you may have to pay them to do it.

Alternatively, there is a formal procedure to request the modification or removal of covenants in certain cases. Do remember, the work you intend doing to the garage amounts to a material change of use, so permission and building regulations consent will be needed — plus listed building consent, if the property is listed.

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.

WHAT'S YOUR PROBLEM? If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE.

We regret that questions cannot be answered individually, but we will try to feature them here.

Fiona McNulty is a legal director in the private wealth group of Foot Anstey (www.footanstey.com


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