A first time buyer paid for searches and a survey on a flat within a converted London house. The conveyancer then discovered that the search results contained no planning permission and no Building Regulations completion certificate for the conversion.
At first sight, that might suggest an unauthorised conversion and a potentially unmortgageable property. However, the search also revealed a 1977 London Building Act entry referring to alterations to create separate dwellings. Building Control later confirmed that a notice for the conversion into four flats had been submitted in 1978, although it no longer held the plans or a completion certificate.
The case illustrates an important distinction. Missing paperwork does not necessarily mean that approval was never obtained. Equally, the age of the works does not automatically dispose of every question concerning planning, building control, safety, title and mortgageability.
What did the mortgage lender require at the relevant time?
Lender requirements concerning missing planning and building control documents have changed. The relevant wording may depend on the lender, jurisdiction and date of the transaction.
Missing approval or missing records?
The first question is not simply whether the buyer can produce a modern completion certificate. It is what happened when the property was converted and what evidence remains.
There are several possible explanations for missing documents:
- the necessary approval was never obtained;
- an application or notice was submitted but the completed work was not signed off;
- approval was obtained but the certificate has been lost;
- the local authority no longer holds the underlying documents;
- the work was dealt with under an earlier statutory or local regime; or
- the search result does not include older material held elsewhere.
These possibilities do not carry the same risk. A record showing that proposals were accepted or a notice was submitted can be significant evidence, but it is not necessarily equivalent to confirmation that the finished work was inspected and approved.
Planning permission and Building Regulations are different
Planning control and Building Regulations should not be treated as interchangeable.
Planning permission concerns whether development or a material change of use was authorised. Building Regulations concern standards applicable to the design and construction of the works. Evidence of one does not automatically establish compliance with the other.
A council may have no planning enforcement concern while questions remain about fire separation, means of escape, sound insulation, structural alterations or other aspects of the conversion. Conversely, the absence of a modern completion certificate does not establish that the conversion lacked all approval under the system applying at the time.
This distinction is examined further in our article on missing planning permission and indemnity insurance.
Why the date of the conversion matters
A conversion undertaken during the 1970s cannot be investigated solely by asking whether the council’s modern online database contains a completion certificate.
The legal and administrative framework may have been different. Records may have been maintained under local legislation, stored in another form or subsequently destroyed under a document retention policy.
Evidence that may help establish the history includes:
- historic local land charge entries;
- Building Control notices and correspondence;
- planning registers and archived files;
- historic leases and title plans;
- council tax and earlier rating records;
- sale particulars, valuation reports and photographs;
- evidence from the construction and layout of the building; and
- the surveyor’s opinion concerning the apparent age of the conversion.
The age of a lease may support the investigation, but it should not be assumed that the first separate lease was granted at the same time as the physical conversion.
Can the conveyancer still provide a Certificate of Title?
The absence of a particular document does not produce a universal answer. The conveyancer must consider the evidence, the title, the search results and the instructions of the buyer’s mortgage lender.
The lender may require the matter to be reported. It may accept the available evidence, require further confirmation, request indemnity insurance or decide that the property is outside its lending criteria.
The conveyancer must decide whether they can provide the Certificate of Title required by that lender. A different lender may take a different view of the same property and evidence.
That is why statements such as “the works are old, so the lender will not care” are unsafe. The risk of enforcement is relevant, but it is not necessarily the lender’s only concern. The lender may also consider the quality of its security, the legal status of the flats and the property’s future marketability.
Does the absence of enforcement solve the problem?
Not necessarily.
Planning enforcement rules have changed, and the time limits and transitional provisions applying today should not be inferred from advice given in an online discussion in 2016. The circumstances and date of the apparent breach require careful consideration.
A statement that the local authority does not presently intend to take enforcement action can be useful evidence, but it may not amount to planning permission, a certificate of lawfulness or Building Regulations approval.
It also does not establish that the conversion is physically safe or that every mortgage lender will accept it.
Why contacting the council requires care
The buyer in the reported example contacted the council directly and obtained written responses from both the planning and Building Control departments.
Those responses helped clarify the surviving records and the council’s enforcement position. However, contacting the local authority can affect the availability of some indemnity insurance policies.
Before approaching the council about a specific property, the buyer or seller should speak to their conveyancer. The appropriate route may depend on whether further evidence, retrospective approval, a certificate of lawfulness, lender referral or indemnity insurance is being considered.
Information about the lender issues associated with insurance is available from the LenderMonitor guides to lack of planning permission indemnity insurance and lack of Building Regulations consent indemnity insurance.
What does indemnity insurance actually resolve?
An indemnity policy may cover specified financial losses arising from enforcement action, subject to its terms, exclusions and eligibility requirements.
It does not retrospectively grant planning permission. It does not produce a Building Regulations completion certificate and does not confirm that the conversion is structurally sound or compliant with present day fire and safety standards.
The conveyancer must therefore identify the actual difficulty before treating insurance as a solution. A policy aimed at enforcement risk may not resolve a lender’s concern about the legal creation of the flats, the physical condition of the building or the adequacy of the leasehold arrangements.
The physical conversion still matters
A planning or building control document is not a substitute for an appropriate inspection of the property.
A surveyor may need to consider the apparent age and construction of the conversion, including relevant concerns about:
- fire separation between the flats;
- means of escape;
- structural alterations;
- sound transmission;
- electrical installations;
- access to common parts; and
- repair and maintenance responsibilities.
A document showing that proposals were submitted decades ago may help establish the history. It does not prove that the work was completed precisely in accordance with those proposals or that no subsequent alterations occurred.
What should the Report on Title explain?
A clear Report on Title should bring the available evidence together rather than merely state that a certificate is missing.
The buyer should understand:
- what conversion appears to have taken place;
- when it appears to have occurred;
- which approvals and historic records have been located;
- which documents remain unavailable;
- what the local authority has said;
- whether the lender has been informed;
- what the survey reveals about the conversion;
- whether any insurance is proposed and what it does not cover; and
- how the issue could affect a later sale or remortgage.
Suitable wording may need to distinguish clearly between the legal enforcement risk and the physical condition of the converted building. The Lexsure Report on Title resource concerning unauthorised works and missing planning permission demonstrates the type of issue that should be addressed expressly with the client.
Could the same problem return when the flat is sold?
Yes. Even if the present lender accepts the available evidence, a future buyer may use a lender with different requirements. A later conveyancer may also ask for documents that were difficult to locate during the original purchase.
The buyer should retain:
- the full local authority search;
- all council correspondence;
- copies of historic entries and notices;
- the survey and any specialist reports;
- the lender’s written decision;
- any indemnity policy;
- the Report on Title; and
- any evidence explaining the age and history of the conversion.
Preserving that material may prevent the next transaction from starting the investigation again with nothing more than an empty search result.
Did the missing certificate only become a problem when you tried to sell or remortgage?
If the conversion predated your purchase, the original conveyancing file may show what evidence was obtained, what your lender required and whether the future sale or remortgage risk was explained to you.
Explore the When I Bought building regulations guide
If the difficulty concerns whether the conversion was authorised in planning terms, see the separate When I Bought missing planning permission guide.
Our earlier articles explain what can happen when a Building Regulations certificate cannot be produced and why historical mortgage lender requirements may matter when planning documentation is missing.
The right question is not simply whether a certificate exists
A modern completion certificate may not exist for a flat conversion undertaken almost half a century ago. That does not automatically make the flat unmortgageable. Nor does the passage of time guarantee that every legal, practical and lending concern can be ignored.
The proper investigation asks what happened, what evidence survives, what the survey reveals and what the particular lender requires.
The difference between missing approval and missing records can determine whether a transaction proceeds, requires further protection or should prompt the buyer to reconsider.
Do not use today’s lender requirements to answer a historical question
If the issue concerns an earlier transaction, identify the lender and original completion date before assessing what the conveyancer was required to do.
If the absence of the certificate has only emerged during a later sale or remortgage, our related guide explains what to examine when missing Building Regulations paperwork was not identified when the property was bought.
This article provides general information only and does not constitute legal, planning, building control, surveying or mortgage advice. The relevant law, evidence and lender requirements depend on the property, location and transaction date. Obtain advice from appropriately qualified professionals before contacting an authority or deciding how to proceed.