Freehold Consent and Deed of Variation Policy

Part of Fairhive's Leasehold and Freehold Property Framework - Level 2 policy approval

1. Introduction

1.1. The purpose of this document is to present our general policy on freehold consents and deeds of variation, setting out the aims, principles and values that we will follow in our granting or refusal of them.

1.2. We acquired our properties through a large scale voluntary transfer from Aylesbury Vale District Council (AVDC) in 2006. AVDC subsequently became part of the Buckinghamshire Council unitary authority in 2020.

1.3. Freehold houses sold by us or by AVDC before it, under the Right to Buy (RTB) or the Right to Acquire (RTA), are subject to the terms of a conveyance which is roughly standard nationally and contains provisions which are required by legislation. For matters which require consent or a deed of variation, subsequent owners of the house continue to be bound by those terms (covenants) in perpetuity.

1.4. We are AVDC’s successor in title and as such we are the beneficiary of the covenants contained in freehold conveyances issued by AVDC prior to stock transfer. Wherever AVDC is mentioned in the document, legally that now means Fairhive.

1.5. This policy relates solely to ex-AVDC or ex-Fairhive freehold houses.

1.6. This policy has been written having regard to our agreed vision and values, our charitable and constitutional obligations, RICS codes of conduct, and legislation. The policy is supported by operational procedures which have been formulated and developed in consultation with solicitors, directors and employees as appropriate.

2. Statement of Intent

2.1. We are committed to exercising our rights and obligations responsibly. This includes the rights and obligations conceded to us in freehold conveyances which we (or AVDC before us) has issued.

2.2. The covenants contained in RTB/RTA conveyances are generally stricter than in most private sector conveyances because the original seller will always have been a social housing provider with an accompanying interest in adjoining property and/or in the wider estate, even when many individual properties may have been sold. The conveyances intentionally make provision for some level of control to be exercised post-sale.

2.3. We consider that we have a responsibility to our tenants and to all freeholders of ex-AVDC or ex-Fairhive properties to carry out our management functions fairly. Just as the conveyance grants rights, it also places obligations on us.

2.4. We will therefore seek, when dealing with freeholders, to reasonably maintain the character of our estates for the benefit of all our residents. This will include not allowing precedents to be set which, if copied, could cause a degradation of the general environment of the estates.

2.5. Freeholders with an RTB/RTA conveyance require our consent for items such as, typically:

Running a business
Extensions, sheds etc.
Alterations (e.g. new windows or doors)
Hardstandings
TV aerials

2.6. Most conveyances specifically prohibit the use of the house as anything other than as a single private dwelling. Since this is specifically prohibited, altering the house to be more than a single private dwelling cannot be authorised with consent. Such a change needs a deed of variation to the original conveyance.

2.7. Consents (Section 3) and deeds of variation (Section 4) will not be unreasonably refused by us.

2.8. When considering consents and deeds of variation, we will seek to recover all costs and values to which we are entitled.

2.9. Easements over land which is not part of the house are often requested in conjunction with the request for consent or a deed of variation. These are separate commercial transactions where we are not bound by a conveyance and we are required by good Governance principles and the Regulator of Social Housing to obtain best value. They are not subject to this policy.

3. Consent

3.1. Consent is separate from Council Planning Permission and we will not be bound by Buckinghamshire Council’s, or its successors, planning decisions.

3.2. Consent must be requested in advance of any works or modifications being carried out. If, after the works have been carried out, any stipulations have not been met, the consent will be invalid or withdrawn if the stipulations are not met within a reasonable time.

3.3. Where modifications have already been carried out, whether the freeholder knew about the need for consent or not, the request for consent will be considered as if the works had not been carried out and no consideration will be given to any possible rectification costs.

3.4. Consent will be granted for alterations or additions to houses which we consider do not adversely affect the residents of nearby properties to an unreasonable degree. For example:

Running a low impact business
Architecturally appropriate extensions of reasonable size
Sheds or other reasonable garden items such as summer houses
Doors, patio doors or windows
Reasonably sized hardstandings

This list is not exhaustive and each request will be assessed on its own merits.

3.5. In considering consent, we will not be bound by previous decisions elsewhere. We will take into account the nature of the individual property, the nature of the surrounding area and any pre-existing modifications. For example, a house with a small garden, or a house which has already extended, may not be granted consent for a garage, whereas consent may be granted for a larger more isolated house.

3.6. Consent will not be granted for proposed or existing modifications which we consider to be so substantial that a deed of variation is properly required. Where this is the case, the applicant will be informed that they need to request a deed of variation (see Section 4) via the appropriate process (with appraisal fee etc.).

3.7. Estate management policy is sometimes reviewed for various reasons. We will not be bound by any previous decisions made on consents, or omissions or oversights, made by it or by Buckinghamshire Council.

3.8. Consent will not be granted for anything which has Party Wall Act implications without those implications being firstly addressed to the satisfaction of Fairhive.

3.9. Consent is subject to a standard fee and the applicant will also pay any additional costs for us in considering and monitoring the matter of the consent, such as surveyor visits etc. Consent will not be granted until all amounts owed have been paid.

3.10. Consents will be considered by our appropriate Officer(s) who will consult with colleagues as necessary.

3.11. If an applicant wishes to appeal a refusal of consent then they must in the first instance write to the appropriate manager with their reasons why they feel the refusal is unreasonable. The appropriate manager’s contact details will be provided on request.

3.12. The manager’s decision, in consultation with colleagues and the Assistant Director of Property, if considered necessary, will be final.

4. Deeds of Variation

4.1. A deed of variation to the conveyance is required where a new dwelling is to be built or created within the plot of the house.

4.2. The division of the house into two or more flats is the creation of more than a single dwelling, and needs a deed of variation.

4.3. We consider a Home of Multiple Occupation (HMO) to be the creation of more than a single dwelling needing a deed of variation, notwithstanding any other legal definition of an HMO for other purposes.

4.4. We also consider a dwelling to be any proposed or existing additional structure which is of a permanent nature, and/or is of a size, layout and construction type that it is reasonable to suppose somebody might live in or spend the majority of their day in. This will also require a deed of variation.

4.5. Granting a deed of variation is separate from Council Planning Permission and we will not be bound by Buckinghamshire Council’s, or their successors, planning decisions.

4.6. Deeds of variation must be requested in advance of creating the new dwelling.

4.7. Where a new dwelling has already been created, whether the owner knew about the relevant restriction and need for a deed of variation or not, the matter will be considered as if the dwelling did not yet exist and no consideration will be given to any possible rectification costs.

4.8. In considering whether to grant a deed of variation, we will not be bound by previous decisions elsewhere. We will take into account the nature of the individual property, the nature of the surrounding area and any pre-existing modifications. For example, a house with a small garden or a house which has already extended may not be granted a deed, whereas consent may be granted for a larger more isolated house.

4.9. Likewise, if a deed of variation for a structure is requested or required which would not in itself cause any issues but which would, if copied nearby, be detrimental to our estates, then a deed will be refused.

4.10. Estate management policy is sometimes reviewed for various reasons. We will not be bound by any previous decisions made on deeds of variation, or omissions or oversights, made by us or by Buckinghamshire Council.

4.11. A deed of variation will not be granted for anything which has Party Wall Act implications without those implications being firstly addressed to our satisfaction.

4.12. Payment of the standard appraisal fee does not guarantee a favourable decision. It is to cover our costs in considering the matter, whatever the decision.If granted, the deed of variation premium will be valued according to the estimated combined depreciative effect on any properties we own nearby. We will estimate the premium according to a uniformly applied range of reasonable values attached to visual impact, parking pressure and any other factors we consider applicable.

4.13. If granted, in addition to the premium, the applicant will also pay any our costs relating to the deed of variation such as surveyor costs, legal fees, disbursements etc.

4.14. Deeds will be considered by our appropriate Officer(s) who will consult with colleagues as necessary. They will prepare a report for consideration and decision by the directors, whose decision will be final.

4.15. If the applicant wishes to make a counter-offer for the deed they may do so, but we are required to obtain best value. If the counter-offer is outside an acceptable margin, the offer counter-offer will be refused.

5. Monitoring and Reviewing

5.1. The Strategic Asset Manager is responsible for monitoring this policy. The Assistant Director of Property will review this policy every three years or before if required by legislation or best practice.

6. Impacts

Resident/Staff Implications -

All relevant employees will be fully trained and be aware of all updates and changes to legislation and regulation.

Residents will be kept up to date with any changes made to this policy via the Resident Forum and a copy of this policy will be made public.

Equality, Diversity & Inclusion -

This policy will conform to all Equality and Diversity legislation and requirements set out by the Group’s Equality and Diversity Policy.

Value for Money -

We recognise that there is often subjectivity or legal ambiguity in this area of work and that there can be potential for elevated costs with limited chance of full cost recovery. There may be occasions where insisting upon our full legal rights could lead to disproportionate costs being incurred, therefore we will seek to be pragmatic in the enforcement of this policy.

Data Protection -

All due care is taken to protect data held by us and in particular, we ensure we keep all resident data secure and meet with data protection requirements.

Accountability -

The Property Officer is responsible for ensuring the implementation and operation of this policy.

Quality -

We look to ensure that our residents are safe in their homes by supporting the provision of well-maintained homes which are in line with legislative and regulatory requirements.

When things go wrong -

Our residents can communicate concerns through our formal channels.