MICHAEL BOYD gives a personal perspective on the opt out provisions in the Building Control Amendment (Regulations) Act 2014.

An agent’s perspective

It is pleasing on one hand to see the comparatively rapid reaction from Government to amend new legislation that doesn’t work as intended. On the other hand, getting it right in the first place would have been preferable. So what effects will this have for residential buyers and sellers?
On a macro level it will not speed up or slow down the addressing of the country’s need for more housing. Its effects will be felt by buyers and sellers on one-off and private single housing. Those looking to build a one-off house on family lands or a rural site will most likely opt out of the Assigned Certifier requirement based on cost considerations. This may be a fillip for the sites market as oversight costs of self-builds will revert to pre-BCAR levels, improving the attractiveness of self-build. Similarly, the oversight costs of building home extensions should remain competitive and be a fillip to that market.

Implications for conveyancing
However, much has been made of difficulties that such self-builders or home improvers might encounter when it comes to selling their homes as the BCAR paperwork will not be available to satisfy a purchaser’s solicitor, and further that their lenders might take exception to the omission of the documents.
The conveyancing issue is essentially over the key difference that involves the facility to opt out of the requirement to obtain statutory certificates reliant on the services of a registered construction professional. If we accept that most if not all self-builds and extensions are overseen by competent qualified construction professionals (most of whom will also be registered construction professionals) and they issue the traditional forms of certificate with their work, then it is hard to see why there should be a deficiency in the non-statutory certificates when compared to the statutory ones. If the law provides the opt out but the conveyancing profession penalises those who opt out but nonetheless provide quality certification, then it says more about conveyancing than building regulations. Why would anyone suggest that there should be differences in the ease of conveyancing otherwise identical houses that are any one of: (i) pre BCAR; (ii) post BCAR and opted out; and, (iii) BCAR opt in?
Those who opt out are still subject to the Building Regulations, planning requirements and the building control authorities. The construction will still be overseen by professional engineers, surveyors or architects so the compliance with standards should be no different.

Finding the right words
If a pattern of difficulties emerges in conveyancing that discriminates against opt-out properties, then the modern trend of issuing legal packs at the same time as placing the house on the market should be availed of, thus addressing the buyer’s solicitor’s concerns before bids are made.  Opting out can save a lot of money.
There is no reason for the opt out saving to be recouped by prickly conveyancing practice. Like lots of things in life, it is only a matter of finding the right words.

michael boyd

Michael Boyd
MRICS SCSI Dip Arb Law CIPS
Michael is founder of the Rea Boyd’s estate agency in Kilkenny, and is a recent Chairman of Real Estate Alliance Ltd.