Advice on buying and altering a new build apartment
Insight
Each month, the Farrer & Co Residential Property partners give us a brief insight into their working lives. This month, we provide an overview of advice given to a client buying a new build apartment from a developer and wanting to carry out design alterations before moving in.
The Brief
We acted for a client buying a new build apartment in a prestigious central London residential development. While the apartment was due to be finished to a high standard, our client wanted to make their own bespoke internal alterations prior to occupation. This raised several legal and practical considerations which needed to be addressed ahead of exchange.
Executing the Brief
The starting point was to engage with the developer. As our client wanted to make significant changes to the kitchen and flooring, they would require the developer's prior written consent under the terms of the apartment lease.
Our client was eager to avoid any delays in securing this consent and ensure that no discretion could be exercised by the landlord to withhold the permission. This meant the neatest solution was to make the grant of the licence for alterations on completion a condition of the purchase contract, which would ensure our client would receive the consent to alterations at the same time as getting the keys to their new apartment.
The developer, used to the requirements of ultra-high-net-worth buyers, was willing to accommodate this proposal, provided our client was prepared to:
draw up full and detailed plans of the proposed alterations ahead of exchange;
accept that the consent would be subject to our client securing all necessary Building Safety Regulator (BSR) consents, due to the apartment being in a higher-risk building for the purposes of the Building Safety Act 2022; and
agree that the licence would be subject to securing any necessary planning permission and listed building consent.
We had flagged to our client at the outset that the higher-risk building status meant that BSR approval of the proposed alterations would need to be in hand before their works could begin, and that the BSR would also need to sign off on the completed works before they would be legally allowed to move into the apartment. We also highlighted the ongoing significant delays at the BSR in processing applications, and the importance of appointing a suitable project team to help manage the complex BSR consent process as smoothly and promptly as possible. An error in the BSR application, or the need for a significant design change part-way through the project, could severely affect the speed and cost of the project. A fresh application may be needed in such circumstances which would put our client back to the start of a long queue.
Our client was relieved that the developer was happy to accommodate their request and promptly appointed their chosen architect who, crucially, had a proven track record dealing with the BSR and higher-risk buildings under the new building safety regime.
While the plans and detailed designs were being finalised, we were able to progress the contract variations and form of licence for alterations with the developer's solicitor. As the purchase was being mortgage financed, we also liaised with the lender to get them comfortable on the proposed works ahead of exchange.
The debrief
The transaction exchanged successfully last month with the agreed condition in place and the full set of agreed plans attached to the contract. Our client now has a clear pathway to implement their bespoke design once the requisite BSR approval is in hand.
The issues involved in buying and selling new build residential properties are varied and can be complicated, but we have extensive experience in handling off-plan and new build transactions, including in higher-risk buildings. For further details, please refer to our Buying a new build residential property in England and Wales guide.
We are always happy to discuss the conveyancing process and how to manage a transaction.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
