tmgroup and IQ Legal demystify new Building Regulations for residential conveyancers
tmgroup and IQ Legal demystify new Building Regulations for residential conveyancers, which came into on 1 October 2023.
The Building Safety Act 2022 has introduced a new building safety regime for certain residential buildings, with stricter requirements for building regulation non-compliance and properties classed as “higher-risk buildings”, with effect from 1st October 2023.
Construction workers and architects working on construction site
tmgroup has partnered with Ian Quayle at IQ Legal Training to look at the Act’s stringent new requirements and to give residential conveyancers a digest of the changes from their perspective.
The session examined how the issue of building regulation consents and approval fits into the residential conveyancing process and due diligence, as well as how the regulation changes apply to new homes and extensions and to higher risk buildings, as a consequence of the Building Safety Act 2022.
We take a look at some of the key takeaways:
Sourcing information and reporting results
There are numerous sources of information available to the residential lawyers, which can trigger issues relating to building regulations. These include Local Searches, Enquiries of Local Authority Con 29, pre-exchange inspections, sales particulars and specialist planning searches. Where possible, conveyancers should encourage clients to get a Level 3 property survey as it is the most detailed available, as it generates useful information, particularly where there are Building Safety Act considerations for higher risk buildings.
Once information is obtained and investigative work completed, conveyancers should inform those findings to their client as part of their due diligence process; but what if those investigations flag a building regulation consent issue? Conveyancers should present the options that are available for further investigation, then invite them to decide what they’d like to do next, while warning them of the consequences of not following up on adverse entries.
Ian Quayle cautions conveyancers not to leave themselves exposed by ‘retainer creep’, saying, “You’ve got to be careful to set out in your retainer what you’re going to do or what you’re not going to do, if then during the life of the transaction, something happens that means you’re now doing or intending to do something that you originally said you weren’t.”
Protecting your buyer’s vulnerability
Lack of planning permission or building regulation issues pose an immediate problem for the buyer on completion. Conveyancers should make their client aware of the potential consequences for resale, mortgage, or future marketability and value. The risk of enforcement action can lead to fines, additional legal costs, or even orders for demolition or reinstatement.
By warning the client about their vulnerability, conveyancers should ensure that clients understand what the problems are and their ramifications, through informed consent as Ian explains, “The client must understand and appreciate the risk they’re facing. It’s incumbent on you to provide the client with detail. I’d want the client to confirm by acknowledging receipt of my email to the client, or to confirm in writing that we’ve had a meeting where this issue has been discussed and that they’ve understood the risk, and that they’re willing to accept a disclaimer from you with regard to any liability or any claim.”
Taking time to find out about the buyer’s objective and intended use for the property will also allow conveyancers to check that the property’s authorised use corresponds. This may come into particular focus for high-risk buildings, for instance, an apartment in a building that’s over 18m in height, as Ian notes it could pose issues around building safety that “could impose additional burdens on the client with compliance or building safety measures that the landlord or the building safety regulator has imposed.”
Ensuring due diligence with Building Regulations
When acting for a buyer, residential conveyancers must ensure that appropriate building regulation consent and approval has been obtained for the construction and/or renovation of the property being purchased. This can involve additional enquiries being raised, such as making a Local Land Charges search of the relevant Local Authority and raising enquiries of the Local Authority in Con 29.
Ian highlights the importance of imputed notice, where the client is deemed to have knowledge of what’s revealed in any inspection they authorise, adding, “The surveyor, or whoever’s inspected the property on your client’s behalf, may not necessarily transmit what they’ve been told to your client, but your client is still deemed to have knowledge of it and an awareness of it.”
Lessons from case law illustrate that conveyancers should always determine if building regulation consent and approval is necessary.
Ian adds, “If it is, have the appropriate certification, and where enquiries are made, that they are followed through, and results reported to the client.”
New regulations on overheating and electric vehicle charging points
The Building Regulations (Amendment) (England) Regulations 2023 amend the Building Regulations 2010 to create a new regime for higher risk buildings and higher risk building work. Two new approved documents, Part O and Part S, have been introduced, covering overheating and electric vehicle charging points respectively.
Now, any work involving drainage, heat producing appliances, cavity wall Insulation, new electrical systems, and new build construction, is going to require some element of compliance. New or existing properties with ten or more dwellings that undertake renovation must provide electric vehicle charging facilities too.
Any extensions to properties are now likely to come across some form of building regulation approval when considering energy performance, structural Integrity, protection against falls and unsafe walls, electrical and gas safety issues, and fire protection.
Time limits changing
Time limits for notices requiring removal or alterations for non-compliant work will extend from 12 months to ten years under an amended Section 35 of the Building Act 1984. Councils also now have a 10 year time limit in which to serve a Section 36(6) Building Act Notice for a Building Regulations breach, although there is still a 12 month limit on Compliance Notices.
Ian cautions, “You have to be so careful when buying because your 12-month period of vulnerability with regard to remediation, renovation or demolition now extends to a 10-year period.”
Thomas Maerz, CEO at tmgroup, comments:
“As a leader in the field of property searches and data services, we are delighted to have partnered with IQ Legal to help legal professionals deepen their knowledge about the new building regulations.
“We take great pride in providing guidance across all aspects of conveyancing, and ensure legal professionals experience a more confident, efficient and secure transaction through our comprehensive suite of property search and data products.”
Residential property legal professionals can watch the full webinar to expand their knowledge on the new building regulations with further expert analysis.
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