General Condition 36 (Development) has had a radical overhaul. The thinking behind it is that solicitors were routinely excluding the condition in its entirety or varying it to such a degree that, in effect, no warranty was being given. The new wording provides as follows:
• The Vendor warrants compliance with planning in respect only of his own period of ownership.
• The Vendor is also required to disclose any breach of or non-compliance with planning of which he is aware. This includes, but is not limited to, any matter disclosed to him at the time of purchase.
• As the period of warranty is being shortened to operate from the date the Vendor first acquired an interest in the property, Vendors should now be willing to leave in General Condition 36 and Purchasers should resist its exclusion.
• The Vendor is on notice of anything disclosed when he purchased the property.
• The changes in this condition come down to an apportionment of risk – the Vendor warrants planning compliance for his own period of ownership PLUS he is required to disclose anything which he is on notice of: if he is not on notice of a matter concerning a breach of or non-compliance with planning legislation, then the risk is with the Purchaser.
• It is emphasised that it is a false security for a Purchaser to rely on the Vendor’s warranty and duty of disclosure as a reason for not carrying out a planning search.
• Where an executor (who is not a joint owner of the property) is selling, a Purchaser’s solicitor will need to do a full investigation into planning pre-contract as the executor will not be in a position to give a warranty.
• The old Building Bye Laws (BBL) are treated as obsolete (and references to the old BBL amnesty have been dropped) but to be produced if available (similar to commencement notices).
• There is still a requirement on the Vendor to produce - a) Fire Safety Certificates b) Revised Fire Safety Certificates c) Disability Access Certificates d) Revised Disability Access Certificates e) Regularisation Certificates
• The condition has been updated to include the requirements for certification under the 2014 and 2015 Building Control Regulations. Provided the statutory Certificate of Compliance on Completion (CCC) is registered with the building control authority, a Purchaser will not need any further evidence of compliance with building control – however, he will still need a certificate of compliance with planning. If the CCC cannot be viewed online, the Purchaser must obtain a certified copy from the Vendor. The condition also provides for requirements where there is an opt-out from statutory certification.
A Purchaser must –
a) see the Declaration of Intention to Opt Out (either online or, if not online, by way of provision by the Vendor of a certified copy)
b) obtain evidence of registration of such Declaration of Intention to Opt Out
c) obtain a certificate of / an opinion on compliance with building control
d) obtain a certificate of / an opinion on compliance with planning.