Forsters LLP – Historic Houses, Essential Legal Insights

I recently had the pleasure of interviewing one of our go-to law firms, Forsters LLP, speaking with Victoria Salter-Galbraith, Counsel, Rural Property, Georgina Haddon, Senior Associate, Residential Property and Alice Gordon-Finlayson, Senior Associate, Planning. The legal equivalent of Charlie’s Angels.

Forsters are a firm we return to time and again for their outstanding service, unrivalled knowledge and, just as importantly, a friendly, responsive team who genuinely communicate.

Below, they share gold-dust insight into selling a prime country house and how to avoid some of the most common hurdles along the way.

When is the right time to instruct a solicitor in connection with a property sale, and why does timing matter so much? 

Many sellers won’t instruct a lawyer until they have found a potential buyer.  This is fine but it means that, having agreed a sale, there is then a brief pause while the solicitor carries out the usual onboarding/AML process, issues engagement documents and guides the seller through the standard property information forms which form part of the contract pack.  In fact, best practice would be to consider appointing your legal team shortly after your sales advisor(s); this maintains momentum and means that the contract pack can be issued alongside/immediately after the memorandum of sale so the buyer’s solicitors have all the paperwork from the get-go.  Delays at any point in the transaction are often unwanted and demonstrating to the other side that you are “ready” is likely to reassure both the buyer and their advisors, and encourage them to maintain the same pace.

How should sellers handle missing paperwork, historic alterations, or works done years ago without clear records? 

Missing paperwork is inevitable, particularly anything only issued in hard copy/several years old, but there are ways to re-order and pre-empt any concerns a buyer’s lawyer may raise.  We suggest our sellers:

• put us in touch with the lawyer who acted on the original purchase (who may have any relevant historic documents predating the seller’s ownership)
• ensure their EPC is still up to date (this can be checked online  Find an energy certificate – GOV.UK
• consider getting an updated boiler service, electricity test etc if no recent paperwork
• put together a brief chronology of works carried out during their period of ownership so we can check planning portal records and advise on missing permissions, approvals and consents as need be
• re-order any missing building regs certificates  Order Replacement Building Regulations Certificate (particularly for new boilers)
• re-order any FENSA certificates Find and order your FENSA certificate (for all replacement windows, patio doors etc)

If planning records are incomplete, provided all works have a) been consented to or are outside the relevant enforcement periods, sellers can apply to the local planning authority for a Certificate of Lawfulness.  This will reduce enquiries from the buyer and alleviate any concerns they or their lender may have. 

If you are selling a listed property we recommend that you discuss any works which have been carried out (either during your period of ownership or by a previous owner) with your lawyer.  It is advisable to instruct a solicitor who is well-versed in the nuances of listed buildings and able to help you prepare a comprehensive sales pack and summary of works if need be to ensure a buyer’s enquiries are addressed from the outset.

What sort of legal groundwork helps a country house sale progress smoothly?

 Title breaches, boundary disputes and works without full record(s) of necessary consents tend to be the most common legal issues in country house sales.  If any of these issues apply, the best approach for a seller is to speak to their legal advisors as soon as possible to ensure it doesn’t derail or delay the transaction.

 Non legal quirks that buyers may need to get their heads around are often as mundane as unreliable services.  These may not come to light until the buyer’s surveyor inspects the property which is often some time after their lawyers have started reviewing the paperwork.  A prudent and motivated seller might consider having any electrical, heating and sewerage systems tested prior to or simultaneously with putting the property on the market.

How should buyers approach rights of way, shared access, or informal arrangements that have existed for years but are not well documented? Public rights of way across private land often raise questions. Why can these become an issue during a sale, and how should sellers approach them?

Undocumented arrangements do need to be considered with some care as it may not always be the best approach to contact the other party involved and request that the arrangement be formalised. If this is possible in the circumstances then that would be the best position from which to move forward, but if circumstances mean this is likely to be contentious it is important to be able to provide a buyer’s solicitor with other evidence of the arrangement, such as written correspondence relating to the arrangement or evidence of monies received or paid.

In an ideal world, prior to sale, a Landowner Deposit should be lodged with the Council which confirms what rights of way exist over the property (as at the time of the Deposit) and which prevents any future rights from being acquired. These last for 20 years and are a useful tool in managing rights of way on large country estates where regular oversight of all land is not possible. At the time the Landowner Deposit is lodged, it is also prudent to check there are no pending applications to register any public rights of way across the property; Councils often have considerable backlogs in processing these types of applications. These documents easily clarify the rights of way position and should therefore reduce the number of enquiries in this area which are often a cause of delay to the  transaction. 

Many of the homes we sell at The Country House Department are Listed buildings. What additional considerations should sellers be aware of during the conveyancing process?

Whilst some buyers will be used to older properties and their traits, it is best to assume a potential buyer has never owned a listed property and pre-empt that they may need additional guidance and assurances along the way.  Ideally, the buyer will have appointed a legal advisor and surveyor who are familiar with listed building requirements to clarify the position and provide comfort. 

As a seller of a listed building, it is important to be open with your solicitor about what works you have carried out. Not all local planning authorities have complete publicly available records so if possible try and keep copies of any planning documentation, including planning and building consents, correspondence and completion certificates. 

If complete planning records aren’t available, you may find it helpful to collate:

• Any “before and after” photos of the property you may have
• Emails or other written exchanges with the local planning or conservation officer
• Any final architect plans documenting the work that has been carried out

By discussing any and all works with your lawyer in advance, you will likely find that may be:

• deemed “like for like” changes which did not require listed buildings consent;
• can be satisfactorily insured against under an indemnity policy; and/or
• where the property is not listed/the works did not require listed building consent, some or all of the works may even be outside the relevant planning enforcement period depending on the nature of works.

Finally, if you are not sure if your property is listed or indeed which aspect the listing attaches too, it is very simple to check the register via Historic England.  Search the List – Find listed buildings, monuments, battlefields and more | Historic England

To contact directly:
Victoria Salter-Galbraith
Counsel, Rural Land and Business
T: +44 20 7399 4768
victoria.salter-galbraith@forsters.co.uk

Georgina Haddon
Senior Associate, Residential Property
T: +44 20 7399 4706
georgina.haddon@forsters.co.uk

Alice Gordon-Finlayson
Senior Associate, Planning
T: +44 20 7399 4864
alice.gordon-finlayson@forsters.co.uk