Can house sale be closed if retention application is pending

Can house sale be closed if retention application is pending

Postby joebre » Mon Apr 12, 2010 10:43 am

As a result of a complaint to the LA, the developer of a new estate has submitted a retention application for two different house types in the estate. It relates to the unauthorised conversion of a garage and the conversion of attic space. The orignal certificates of compliance cannot be relied on at this stage. Most of these houses are sold and occupied.
A number of house remain to be sold. Work is underway in completing one house for handover. The retention application was made only 2 week ago and could be delayed through FI or appeal to the Bord.
I am wondering if the developer is in a position to complete a sale while an application for retention is pending.
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Re: Can house sale be closed if retention application is pending

Postby wearnicehats » Tue Apr 13, 2010 2:00 pm

joebre wrote:As a result of a complaint to the LA, the developer of a new estate has submitted a retention application for two different house types in the estate. It relates to the unauthorised conversion of a garage and the conversion of attic space. The orignal certificates of compliance cannot be relied on at this stage. Most of these houses are sold and occupied.
A number of house remain to be sold. Work is underway in completing one house for handover. The retention application was made only 2 week ago and could be delayed through FI or appeal to the Bord.
I am wondering if the developer is in a position to complete a sale while an application for retention is pending.


both parties have to agree to completion of any sale - provided the other party is aware of the situation and agrees to it then no problem. problem. I wouldn't if it was me though.....
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Re: Can house sale be closed if retention application is pending

Postby onq » Tue Apr 13, 2010 2:32 pm

Why are the conversions contested?

Were they undertaken prior to the building being completed?

Did they exceed area limits or is the garage separate from the main house?

If what are normally exempted development issues have fallen out of bed, what else is wrong?

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Re: Can house sale be closed if retention application is pending

Postby Solo » Tue Apr 13, 2010 4:29 pm

The developer and buyer can complete at any stage they agree regardless of planning or any other issue. The buyer can chose to buy without the benefit of planning if they like and the seller can sell on the same basis.

Both of the issues you have mentioned are ordinarily exempted development issues however the developer is not normally allowed to avail of this as it was intended for the owner occupier. I am not aware of any specific restriction prohibiting the developer availing of the exempted development and I have allowed a small amount of these on projects in which I have been involved but I have always recommended to the developer that the works should be done after the sale completes to be safe.
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Re: Can house sale be closed if retention application is pending

Postby joebre » Tue Apr 13, 2010 4:51 pm

The houses are detached, split level, over three floors.
The lower level was intended as garage/store only.
The developer converted it at the time of original construction
The converted area exceeds 40m2.
The garage/store is underneath the main dwelling and not to the rear or side
An additional area of over 20m2 was built at the time of original construction and was not included on any plans.

The other house type has it's gable facing the road.
The developer converted the attic and put 2 windows in the roadside gable.
There are 6 Velux windows. I do not think that the Velux windows in two of the bedrooms comply with Part B in terms of opening size or height off the floor.
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Re: Can house sale be closed if retention application is pending

Postby onq » Tue Apr 13, 2010 10:23 pm

Wooo-Hoooo!

That's some list of breaches and not one that can be dealt with solely by making an application for planning retention.

There is a whole raft of compliance works associated with attics under the building regulations and use of the attic as anything other than a store is not allowed unless they are met.

For example you cannot use a fixed ladder as the primary means of access into a habitable room, any stair has to be a minimum of 800mm clear width and that excludes the handrail and you must have one handrail.

Yes the builder can still offer the premises, but the purchaser might have no comeback if the permission didn't go through and he had already completed - and that still leaves the possibly non-compliant building work on the conversions

Without the permission and Opinions of Compliance for both Planning Permission and Building Regulations no solicitor worth his salt would recommend a purchase and might refuse to handle the conveyance - solicitors can sometimes be held liable.

FWIW

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Re: Can house sale be closed if retention application is pending

Postby onq » Tue Apr 13, 2010 10:30 pm

Jobre,

Why did you start another thread on this when you already had this one noted below still going?

http://www.archiseek.com/content/showthread.php?p=106209

Just replying to the original would have bumped it to the top of the pile again.

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Re: Can house sale be closed if retention application is pending

Postby joebre » Tue Apr 13, 2010 10:55 pm

The approved plans for the house before the attic was converted was a 3.3m high ceiling on the main floor and a truss roof overhead. The builder put in a proper stairs and one large bedroom, en-suite, in the middle of the attic. The rooms underneath had double height ceilings at both gables, if you can understand my description. He later decided to deck out the two floors and provide 3 bedooms and a bathroom in the attic space.

I was going to post this problem separately but I will put it here as well.
The means of escape from 2 of the bedrooms in by Velux window. The problem is that the opening of the Velux is approximately 2.0m off the floor.
The builder built a "platform" 800mm square and about 1100mm high. It has a mock front that looks like four drawers. You pull the top handle and it opens into a set of steps. You are meant to climb up the steps and out the Velux. Trouble is that the Velux is centre-pivoted and the opening is not big enough.
The platform is meant to be fixed in position underneath the opening. It looks like a monster in the room.

My house has the attic converted under the original permission. The middle bedroom has a Velux of similiar height off the floor. I have refused to accept a platform and no longer use the bedroom until the matter is rectified.

Most amazing of all, the BCO has given the builder a letter that confirms the platform satisfies the requirements of Section 1.5.6 of Part B

You may see from my other post that the builder has applied to retain the attic space of one house type and the lower ground floor of another house type. He has submited a copy of the letter from the BCO with his planning drawings and has not made any proposals to remedy the means of escape such as lowering the cill height.

It leeave me with no option but to pay €20 and make my observations.

When the builder was dragging his heels earlier this year, I wrote a summary e-mail to the builder's solicitor "for his information" as he may not have been aware of the problems.
I advised him that I had a house that could not be sold, the certs of compliance could not be relied upon, the lack of means of escape was a risk to human safety and that no other house could be sold until the maters were rectified.

Long story but hence the question in my original post
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Re: Can house sale be closed if retention application is pending

Postby joebre » Tue Apr 13, 2010 11:02 pm

Hi ONG,

Maybe you are right?

However, one thread was an update on my query from last year on the exempted regulations for the conversion of a garage and the other was querying whether a house could be sold pending a retention application.

The subject "Can house sale be closed if retention application is pending" might be read by people that might not be interested in reading the other post?

Anyway, I am delighted at the comments and help that I am getting from both posts.

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Re: Can house sale be closed if retention application is pending

Postby PVC King » Wed Apr 14, 2010 11:22 am

The question should be, if a person agrees to buy a house by paying a deposit subject to completion of an agreed specification what happens if planning consent is not watertight.

Clearly you can complete the purchase but you will have no recourse against the developer; however in light of market movements you may be better off having the document analysed by a specialist property litigation solicitor to ascertain if the arrangement can be rescinded prior to completion. As always the specific wording of the document will determine your ability to walk. I would imagine that it would be very difficult for a developer to pursue you given the defective nature of the consent; planning variations are completly logical but building without full consent is entirely symptomatic of why the property market has had its recent difficulties. You need to weigh up the scale of deposit paid and if allowing the developer to forfeit the deposit which if a moderate scale may lead to a situation where completing a purchase elsewhere would deliver a better result. I do not believe in people walking away from obligations but clearly any developer who offers for sale a property unbuilt and then fails to secure consents deserves no benefit of the doubt.
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Re: Can house sale be closed if retention application is pending

Postby joebre » Thu Apr 15, 2010 10:15 pm

In light of some of the responses, perhaps I need to re-phrase the question slightly.
The original sales in the estate were accompanied by an archietcts certificate of compliance with the origional planning permission.
The CC have deternined that some works were unauthorised/not emempt and have instructed the builder to apply for retention.
On the assunption that the purchaser is getting a mortgage, what can the architect certify is there is a retention permission only recently lodged and no one knows how long it will take to get retention.
Surely any solicitor would advise his client not to close until the retention was granted?
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Re: Can house sale be closed if retention application is pending

Postby PVC King » Fri Apr 16, 2010 9:32 am

Spot on; no decent solicitor would advise you to complete in these circumstances; clearly the developers trousers are somewhere around his ankles. I would certainly await planning consent before paying full consideration and only complete at the agreed price when all necessary consents are secured; I would check the contract for the long stop date as it is possible that you may be able to withdraw with your deposit if the developer were not in a position to complete by that date and would have limited defence on retaining your deposit as it would be clearly most advantageous to do a deal on 2010 terms; get legal advice from a specialist in the area.
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Re: Can house sale be closed if retention application is pending

Postby Solo » Fri Apr 16, 2010 5:29 pm

joebre wrote:In light of some of the responses, perhaps I need to re-phrase the question slightly.
The original sales in the estate were accompanied by an archietcts certificate of compliance with the origional planning permission.
The CC have deternined that some works were unauthorised/not emempt and have instructed the builder to apply for retention.
On the assunption that the purchaser is getting a mortgage, what can the architect certify is there is a retention permission only recently lodged and no one knows how long it will take to get retention.
Surely any solicitor would advise his client not to close until the retention was granted?


While reason would lead one to believe that that should be the situation. I am aware of a solicitor who assembled documents to resemble a certificate of compliance to close the sales. Most purchasers solicitors do not query the certificate offered but this is another case when perhaps they should. On another thread in this forum unregistered architects get their certificates queried while it appears RIAI members do not. I am personally aware of defective certification form both members and non members of the RIAI.

The certifying architect in the instance you outline must be living in fear of a massive claim against his PI cover, that is assuming he has any. If the cert is defective make a claim but be warned any complaint made to the RIAI about a member will not be acted upon. There is no mechanism in place for any member of the public to complain about any registered architect so you will have to go legal. Were the houses covered by homebound and if so lodge a claim there also. I find it hard to believe the steps to the centre pivoting velux type window are acceptable and then maybe the steps are but the window is not it should be top hung and if I recall correctly the bottom of the window should be within 1.5m of the roof edge.

The more you post the bigger this mess appears to get.
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