Question: I am selling my house. My buyer is creating because I had a conservatory built for which I obtained planning permission and building regulation consent, but no consent from the developer. I bought the house, which is part of a small estate of four houses, from new 17 months ago. The buyer’s solicitors say this is a huge problem and their client may pull out. Why did I need the developer’s approval?
Answer: When you bought the house you would have entered into a contract with the developer and subsequently the developer would have transferred the property to you on completion. In the transfer document there would have been rights granted for the benefit of your house, rights reserved for the benefit of neighbouring properties and a list of restrictive and other covenants.
There must have been a covenant which said something like you must not alter or make additions or erect structures to the exterior of the property without the previous consent in writing of the developer. Such a covenant is to protect the amenity of the development.
The problem can be resolved by applying to the developer for retrospective consent. There may be a qualification in the covenant which states that the developer must not reasonably withhold consent .
If you feel that the developer may be reluctant to grant retrospective consent then you could offer your buyer indemnity insurance. The premium generally depends on the sale price of your house and also the level of risk.
If you decide to follow the indemnity insurance route, do this first and do not contact the developer, as by doing this you will have put the developer on notice of the breach of covenant which is likely to preclude you from getting indemnity insurance.
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Fiona is a partner in the residential real estate team at Thring LLP (www.thrings.com).