No building regulations approval? What's the solution?

29.08.2018

Blog Post

When a property is up for sale and building work has been carried out on it, the seller will need a form of certification to say that the works have been inspected and that they comply with the building regulations.

At least, that seems to be the current view of many engaged in the conveyancing of properties.

Is building regulations approval really needed?

There are a number of snags with this:

Some works don’t need building regulations approval
Some could have been done before the regulations changed to include them
Others may have been carried out prior to the early 90s, before Certificates of Completion were introduced

Therefore, some works might not have needed approval, some did need approval but have no certificate and, in the worst case, they did need approval but no-one has applied for it!

In all these cases, there will be no documentation to show that the project is compliant with the building regulations.

Routes to building regulations approval

From the 11th November 1985 onwards, there have been two routes to gaining building regulations approval for building work.

1. Through the local authority.

2. Through a private company, approved by the Secretary of State to carry out such work and issue approvals. Such companies are known as “Approved Inspectors”.

There are differences in the documentation issued, dependent on which route you take.

The key documents are those that are issued to state that the building works have been approved, inspected and passed. Where the work has been undertaken with the council's approval, the document is a “Building Regulations Certificate of Completion” and if an Approved Inspector is used, the document is a “Building Regulations Final Certificate”.

What happens if there is no approval, when there should be?

If building regulations approval and certification should have been obtained for building works and no such approval exists, there are potential consequences. Under the provisions of Section 36(6), Building Act 1984, the council can seek a High Court injunction to require the alteration or removal of work that doesn't comply.

Such an action can be expensive for a buyer. To add to the expense, the costs of either remedying the building or removing the offending work can be high.

Therefore, some have considered it wise to purchase indemnity insurance to cover such costs, should they arise.

The purchase of an insurance indemnity policy may cover the issue for one sale, but it doesn't remove the problem with the property.

What about the next time the property is sold?

The same situation exists, the same delays may occur, the same threat of action by the local authority remains, no progress has been made, the vicious circle continues.

Is this in the best interests of the home owner?

The way forward? Regularisation.

The clear way to break the vicious circle is to obtain regularisation certificate - this is the process by which a retrospective building regulations application can be made.

There are, however, some drawbacks with this:

1. The regularisation process cannot be used for work that was carried out prior to the 11th November 1985.

2. The process is a double-edged sword as what might have been thought to have been a simple lack of paperwork may turn out to be much more complex and expensive to rectify. When the remedial work is not undertaken, a Certificate of Regularisation will not be issued.

Some other issues to take into consideration are that building regulations regularisation can only be obtained from the relevant local authority as private sector Approved Inspectors aren't authorised to undertake this work. Further, the council will charge for the service they provide, and the charge will be higher than the one they would have raised at the time the application should have been made. (This is done deliberately as an incentive to applicants to make submissions in a timely manner.)

Nevertheless, only by making a regularisation application can the applicant find out definitively what is non-compliant with their building works.

How does this affect the sale of your property?

Knowing that approval can be given retrospectively might be enough for a buyer to take on the property. Then again it might not.

Whichever, it will be the owner’s responsibility to undertake the works to achieve building regulations compliance and it's important to know that this can be made a requirement before your sale can go through.

Completion certificates for work done before 2013

Update 20 November 2020. We've had many queries on work done years previously as you can see from the comments below. Here's some further information for those in that position:

Prior to 2013 there was no requirement for local authorities to issue completion certificates in all cases. Some authorities adopted a procedure to issue completions before this date, but not all, and the earlier the date the less likely it is that completion certificates would be available. Consequently it may not be possible to provide a completion certificate for work carried out before 2013. Although there are provisions within the regulations for a local authority to accept applications to regularise work carried out without approval, there is no obligation on a local authority to accept such application. Also the greater the length of time since work was completed, the less likely this would provide a satisfactory solution.

Conveyancing solicitors have increasingly demanded completion certificates, which was part of the reason for their introduction into regulation in 2013, unfortunately their demands do not take account when building work was completed. Provision of some form of indemnity policy is often promoted as an alternative, however this is usually only to cover legal action by the local authority for contravention of building regulations. A surveyors report indicating the current status of the property in relation to building regulations applicable at the time the work was carried out may be more beneficial to future occupiers.