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I am selling a house with an old extension; the solicitors have asked for “Architect’s Opinions on Compliance”. Can you do this?

The need for “retrospective certification” is an extremely common problem when selling any property built before 1990; frustrating many property transactions, particulalry among first time buyers and inexperienced investors. There needs to be far greater awareness of this difficult issue.

Typical Scenario

Here is the typical scenario: a house was bought in the 1960’s, in the 1970’s the owners saved some money and built a kitchen extension, garage conversion or sun room. Perhaps it was a DIY project, perhaps they hired a local contractor or paid individual tradesmen over a period of time. They paid for it gradually without needing a secured loan. There was no paperwork. An inspector may have called from the local authority if their attention was drawn to it, but any such records were either lost or archived long ago. Some of the work was good, some of it was bad, it aged and was adapted over time.

The property vendor calls an architect, engineer or surveyor saying that the solicitor has asked them to procure “Opinions on Compliance”. The professional tells them, to their utter dismay, that such documents can only be created at the time a building is built, unless a small number of very specific circumstances apply to the situation. This difficult conversation usually happens when the property owner/ vendor is the midst of selling the property, but this should not be mistaken for a mere snag in the paperwork. It is a major barrier to the completion of many property transactions.

Now in the twentyfirst century: any bank, investor, or informed purchaser will demand solid proof that this same building complies with the law, and the standard procedure for selling a property demands that the venor provide this proof in a legally recognised format.

If you are thinking about buying or selling a property built before 1990, start thinking about this common pitfall before marketing or making an offer. In order to determine if retrospective certification is possible, an architect must study the case in detail, and build a file of records to back up any Opinions on Compliance which may be issued as a result of the process.

Our Advice Service and List of Information Required from the Client

We have provided detailed advice below, which is freely available. We would also advise anyone in this situation to gather all possible information on their property according to this online process, to assist us in understanding your situation quickly. If you feel you require assistance you can book our time to investigate the compliance history of your property in detail at this link:

The Cost is €350 Ex VAT for the initial assessment process. Additional services may be required to help you resolve any compliance issues.

Short Answer:

To fully understand this issue, you really need to appreciate how the culture of compliance in Irish construction has changed radically in the last 30-40 years. Without going into the detailed background, here is what I would say to anyone in this situation:

In short, we need to do a days work to see if we can help you, and the biggest thing we can do for you is create a statement of the compliance status of the building or structure to properly inform the parties involved.

The Core Problem is Reconciling Modern Conveyancing Procedures with Buildings Produced in a Radically Different Compliance Era

An Architect’s Opinion on Compliance is a legal undertaking from an individual architect, relating to a property, stating that the building is in substantial compliance with the planning and/or building control law. Effectively, the architect assumes wide ranging liability for any potential losses should they prove to be incorrect in their Opinion that a building complies with the various complex laws which control construction. Responsible professionals practicing in the modern era only undertake this onerous responsibility when we have been integral to the design and construction process.

Many homes were extended informally in the past, without any formal professional services, because the law at the time imposed no such requirement. Few records exist for such developments. It is now a strict legal requirement to provide evidence of compliance for any structure being bought or sold, particularly where a lending institution must approve the transaction. Such evidence usually constitutes an Architects Opinion on Compliance, or similar form from a suitably qualified engineer or building surveyor. 

Available Courses of Action

Many property owners are faced with this requirement during the stressful, slow and complex process of buying or selling an older house. (Some “cash buyers” can instruct their solicitor to waive such requirements, but this usually has a big impact on the price.) The situation may well prove to be intractable or expensive, and expectations of the various parties to the property transaction often need to shift radically in order to move the process forward.

In general, the options for people in this situation are:

  1. To have the property certified retrospectively. This is difficult because laws have changed considerably in the last few decades, and extensive written records are now considered essential for a professional to certify a building within the legal limits of their role. 
  2. To modify or upgrade the structure where compliance with building regulations is within relatively easy reach. Some “opening up” of structures may be needed to check for hidden defects, and upgrades must be designed, specified and certified.
  3. To effectively “reclassify” a building, such as a poorly built house extension as a form of construction to which building control did not apply such as a shed or an awning. Or to sell the property as a derelict structure or incomplete building project and not as a finished habitable house. Such types of building would be financed, valued and traded somewhat differently, making retrospective certification unnecessary. This is inexpensive in the short term, but typically has an obvious deleterious impact on the value of the property. 
  4. Demolish the structure (in whole or in part) in cases of egregious non compliance where retention planning applications are almost certain to be refused, or where the cost of repairs or upgrades needed to meet the building regulations is prohibitive.  
  5. To apply for retention planning permission where no historic exemptions can be proved to apply, but where the construction work was in compliance at the time of construction.
  6. A combination of the above steps.
  7. An alternative contractual arrangement to remove the requirement for certification. This is highly unlikely where a bank is involved.

The cheapest option is to obtain retrospective certification on the basis of planning and building control exemptions which existed at the time the property was built. This is not always legally possible or commercially practicable and there are often very good reasons why uncertified buildings weren’t certified at the time of construction, such as hidden defects. In order to determine if retrospective certification is possible, an architect must study the case in detail, and build a file of records to back up any Opinions on Compliance which may be issued as a result of the process.

Process of Assessing Compliance History

In order to assess whether an old extension or other development can be certified retrospectively, or to determine the basis upon which it may be certified, an architect or surveyor must:

  1. Visit the property
  2. Take measurements, create sketches, use photography and consult online records onsite to understand the likely phases and dates of construction.
  3. Assess any apparent defects, and assess the likelihood of latent defects associated with construction from that period.
  4. Review any relevant records relating to the building which may be provided by the client.  
  5. Review planning history records online or in offices of the local authority. 
  6. Research, procure and study historic maps and photographs.
  7. View relevant planning and development regulations and acts, with detailed study of transitional arrangements and possible exemptions. 
  8. Review of historic building control regulations, and transitional arrangements to identify possible additional basis of compliance.
  9. Review of any available records of historic building bylaws for the relevant local authority.  

The outcome of this process is a clearer picture of the extent to which a property does or does not comply with the planning and building control laws in place at the time of its construction. We would generally provide a summary report by email, or verbally, depending on time constraints on the fixed price service. The summary allows us to advise you and other professionals assisting you on the proper course of action to achieve certification.  

Outcomes of the Service

In many instances, this advice will assist in agreeing an acceptable alternative solution.
This service results in:

  • Inspection records comprising photographs and sketches showing primary dimensions of the structure
  • Determination of whether any of the RIAI forms of opinions of compliance may be issued to certify the property or development
  • Suggested course of action to achieve the standard of building or level of documentation required for issue of opinions on compliance
  • List of possible changes to the structure, if relevant to achieve compliance, usually suggested where any compliance issues are physically minor but significant in compliance terms. 

Limitations of Service

This service does not constitute an undertaking to issue Opinions on Compliance for any property. Nor does the completion of the service or payment of the fee include the issue of Opinions on Compliance documents.  But if we determine that opinions may be issued, the completion of this service is reflected in the fees and costs for preparing the actual documents.  

Changing Times

Up until the 1990’s, the culture of compliance in Irish construction was such that a retrospective certificate of compliance could be procured relatively easily, if needed for any purpose, at any time. Some professionals earned a large part of their income from this practice. However this lax culture ultimately clashed with increased technical standards after the year 2000; this contributed to several building defect and safety scandals of national importance, and a generally poor level of quality and value in the Irish property market through the Celtic Tiger era.

Retrospective certification is not illegal, but its possible use is extremely restricted by the professional bodies in the wider interest of long term consumer protection.

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