Occupancy conditions

“We last discussed occupancy conditions in our article in February 2018 in which we considered the mechanism of obtaining a lawful development certificate (LDC) where a dwelling has been occupied in breach of an agricultural occupancy condition for 10 years or more. We have had two recent cases that highlight the importance of making an application to remove the occupancy condition following the grant of an LDC”, says Brian Dinnis of Acorn Rural Property Consultants.

The first case involves a former farm worker’s dwelling that was gifted some years ago to one family member, but where the farm had been inherited by another. An LDC had been granted on the former worker’s dwelling, but the occupancy condition remains in place. A new dwelling is now required for the farm and the former farm worker’s dwelling was offered for sale back to the farm at an unrestricted market value, on the grounds that that it had an LDC. “Although the farm could not justify paying open market value and did not therefore buy back the property, if the purchase had happened, the occupancy condition would have re-applied as soon as it was occupied by someone working on the farm, leading to an immediate devaluation and what our client said would have been the “double whammy” of having bought back the dwelling at market value only to find that it was worth significantly less as soon as he had done so”, explains Dinnis.

The second case also concerns a former agricultural worker’s dwelling where an LDC was granted many years ago. It is important to remember that an LDC is only a snapshot in time and confirms that the occupation of a property in breach of an occupancy condition is lawful at the date of the grant of the certificate.

Our clients are the second successive owners since the LDC was granted and are occupying the dwelling in breach of the condition. They have lived in it for about two years. They believe that the dwelling has been occupied in breach of the condition since the LDC was granted but their solicitor did not advise them to obtain a statutory declaration to that effect from the vendors when they purchased the property. That means that, if the local planning authority (LPA) asks if they are complying with the occupancy condition and finds that they are not, they do not currently have any means of demonstrating to the LPA that there has been a continuous breach of the occupancy condition for at least 10 years and that the breach of the condition is immune from enforcement.

“The first case could be regarded as a lucky escape”, comments Dinnis, “but the second case potentially puts our clients in a difficult position where they may need to be able to defend themselves against an enforcement notice for being in breach of the occupancy condition without having all the evidence to hand to enable them to do so easily in circumstances where they paid the full unrestricted market value for the property. It would have been prudent when they purchased the property for their solicitor to have made it a condition of the purchase that the vendors provided statutory declarations to confirm the ongoing breach of the occupancy condition as part and parcel of the purchase documents. However, both examples could have been avoided altogether if an application had been made and granted to remove the occupancy conditions when the LDCs were originally granted”, concludes Dinnis.

For further information on any rural planning matters please contact Brian Dinnis on 01884 214380 or at briandinnis@acornrpc.co.uk

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