July 16, 2014 3:58 pm

House Rules: property law and second homes in the country

Consenting to improvements, ownership of vaults and shared terraces
James Ferguson illustration©James Ferguson

1. Consenting to improvements

I am in the process of buying a second home in the country. The seller installed replacement windows and built a substantial “summer house” but without obtaining consent. What are the risks of buying the property? If you carry out development or make alterations to a building that is not listed and planning permission is required the local planning authority has four years in which to take enforcement proceedings. If they fail to do so within that four year period its right to take action ceases and, although the works do not have planning permission, the planning authority cannot require reinstatement.

Do the same rules apply to listed properties? Properties are listed when they are of historical or architectural interest and special rules apply. The four year rule does not apply to a listed building and if works have been done which required listed building consent, the planning authority can take enforcement action at any time.

What actions might the planning authority take? It is most likely that replacement windows would require listed building consent and if you have a mortgage your lender will need to be informed. If you proceed without such consent, the planning authority could require the windows to be reinstated. Whether the “summer house” is a problem depends on whether planning permission was required and whether it is close enough to the main house for the listed building rules to apply. If the house is within the area, it is likely that both the planning permission and listed building consent should have been obtained.

2. Ownership of vaults

I am selling a London townhouse which has under-pavement vaults. One has been converted into a utility room and the other into a bathroom. Our buyer’s lawyer says that I do not own the vaults. This is not an uncommon problem with central London properties. Many Georgian and Victorian houses were built with coal cellars under the pavements. Following the Clean Air Acts coal fires ceased to be used and many under-pavement vaults have been converted for the uses that you describe.

The vaults have always been with the house. How can we prove this? When ownership of a property is registered at the Land Registry they prepare an official plan showing the property. Unless title to under-pavement vaults is shown to the Land Registry they will not have included them in the registered title and you will not be recorded as owner of them. However, the Land Registry are often happy to include vaults in a title if you supply them with evidence that they have been enjoyed exclusively with the house for many years and that you believe they were constructed at the same time as the house. It is usual for the house owner to swear a declaration as to these facts and the use of the vaults during their ownership. This evidence would support an application to register the vaults within the title to your house.

Are there any other considerations? Your lawyer should check that no part of the roadway is registered in third party ownership, as competing claims for title will delay registration. Your buyer’s lawyer should be satisfied with a declaration from you, but may insist on inclusion of the vaults in the Land Registry title before completion which is often processed quickly.

3. Shared terraces

I live in a flat with a common roof terrace outside four flats, two of which have doors giving access and two have windows on to the terrace. When we bought the flat, we were told that the terrace was used in common and not owned by any of the other flats, but the managing agents now tell us that the two flats with doors can use the terrace and that we cannot. What is our legal standing? Leases deal with roof terraces in one of three ways: either a roof terrace is included in a lease; the lease gives the tenant rights to use the roof terrace; or (unfortunately all too common) the lease will make no mention of the roof terrace at all, even though it is used by the leaseholder. You should check your lease to see which option applies to you. A search at the Land Registry will reveal who owns the other flats and whether the roof terrace is included in one of their leases.

What if the terrace is not referred to in the lease? If this is the case, it will be hard to establish that you have rights to use it even if previous owners had been doing so without objection.

Do I have any further actions or rights? Using a flat roof as a roof terrace may require planning permission. If use of the roof terrace outside your window causes a nuisance you should check that proper planning permission has been obtained and check that it is being used only in accordance with lease terms. Your landlord may be able to check for you. It is common to see restrictions saying that a roof terrace should only be used as such and often restrictions prohibit the standing of flowerpots etc.

Henry Stuart is a partner in Withers residential property team

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