# Help Sell house with 10 year Planning Clause



## galway1 (30 Jan 2010)

Hello,
I am new to this site and hope I have posted in the correct forum.

I am looking for advice as I fear my house will be reposed if I can't do something soon. I got planning 4 years ago and have lived in my house for nearly 3 years. I have 2 children and my boyfriend and I both had plenty of work when we built the house. I got planning and happily agreed to a 10 years clause of not been able to sell the house and never thought I would see the day I would need to sell for this reason. Now everything has changed I am down by €200 a week in my job and my boyfriend is self employed and has no work for the past 6 months and owes over €100,000 on a machine. He has been to the welfare and is entitled to nothing as he is self employed since 2006 even though he worked for 15 years as an employee paying thousands in tax every year before 2006 and never got welfare in his life! We are over 3 months in arrears with the house and our other loans and have both decided now we need to split up as the kids are getting upset with all the arguing. I am at my wits end and don't know what do to next so think the only option left is to try sell. The house was valued at €820,000 about 2 years ago and we owe the bank €300,000 as I had the site from my parents. I know the house will be gone way down in value but I need advice of what to do to have the county council clause lifted and what way this will affect me so any help would be greatly appreciated. Thanks


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## PaddyBloggit (30 Jan 2010)

Sorry to hear about your troubles galway1.

I haven't got any constructive advice for you but hopefully you'll get lots of replies tomorrow.

Perhaps ... one idea ... approach your local county councillor or TD and ask them to intervene on your behalf ....


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## galway1 (31 Jan 2010)

I am going to do that Monday hopefully will get some more ideas here from other people as well.Really need to do something fast as my mother is a joint owner with my partners loan and she does not know how serious things have got with us yet as i did not want her worried.We have been to the bank and they were ok with us but there's a limit to how long they will wait for money.Can't even sleep anymore thinking about all this.Thanks anyway for your reply


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## onq (31 Jan 2010)

Hi Galway1

First I'd like to commiserate with you on your situation.
I think it is disgraceful that you are caught in this dilemma.
Two hard working people starting off in life and with a young family.
It makes me very angry...

That having been said...

The clause you refer to I think is a condition of your planning permission and you might clarify if I am correct in this assumption. If I am...

There is no doubt but that this may hold up your sale if the purchaser's solicitor / architect/ surveyor picks up on it. However, planning law does not supersede the law of the land and it seems clear to me that in this matter planning law is being stretched to its limit if not beyond, or else is being used in an arbitrary or perverse way.

I have referred elsewhere on the legality or otherwise of these conditions, which in one sense appears to confer unfair advantage  - you got permission where others couldn't - and in another sense unfairly restricts your use of an asset into which you have invested a significant sum of your own and others' money.

Quite honestly I don't understand this parish pump planning practice, where only people in an area or their relatives or who have a "connection" are allowed to build in that area.

I understand the need for reducing or controlling the "Holiday home blight" on our landscape, I just don't feel this is the way to do it - its a blunt instrument at best and unfair and discriminatory at worst.

As far as I am concerned there should be a policy allowing a certain degree of once off housing and that's it. It could be specified in the development plan and it could accommodate some holiday homes and let the rest required for "full" occupation.

Having vented that lot off my chest, I have to say that to reverse or amend a planning permission could take time, three months minimum, and as  PaddyBloggit says, its a Council matter, but the exact mechanism I'm not sure of. 

Section 3 & 4 Motions have become discredited and 75% of the Members may not want to unite to help you for varying reasons. A planning application to remove a condition may be a way forward, but I've never heard of anyone doing it.

It seems to me that a planning application to remove a condition required by a development plan either requires:
(i) a  variation to that development plan to remove the policy before you lodge, 
(ii) a material contravention passed by the Members during, or 
(iii) an Appeal afterwards.​
A material contravention will again require you to successfully lobby Members and also the planning department.

I think you need to take expert legal advice on the planning law issue and the whole principle of how these planning restrictions operate. If you do a bit of googling I'm sure you will find plenty of references to these restrictive conditions. Given the current reliance on these restrictive conditions by local authorities I cannot offer you a rosy outlook, just point you in the direction of where I think your hard work and lobbying will need to be directed - and I'm not even certain of that.

Once again, I'm sorry to hear about your plight and I only wish I could be of more help.
Feel free to revert with any queries you might have.

ONQ.


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## tester1 (31 Jan 2010)

*Planning permission clause that you cant sell within 5 yrs? Any1 break?*

Just wondering if any1 sucessfully got out of above planning condition. 
States house built cant be sold within 5 yrs. 
Wonder if in current climate they are being lenient on this one?


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## onq (31 Jan 2010)

*Re: Planning permission clause that you cant sell within 5 yrs? Any1 break?*



tester1 said:


> Just wondering if any1 sucessfully got out of above planning condition.
> States house built cant be sold within 5 yrs.
> Wonder if in current climate they are being lenient on this one?



As you can see from the OP, the period for retention in your ownership can be 10 years so in one sense you have already had some leniency assuming your permission condition was imposed for a similar reason to the OP's.

As a corollary, the five year limitation imposed by your condition may have some bearing on any reduction she might reasonably obtain in the duration imposed by her condition.

In that regard it would be useful, without giving away any identifying information, to know what local authority granted your permission in case its the same one of one whose functional area deals with similar kinds of applications.

Assuming this is not against the forum rules, I would ask the OP to confirm her local authority also to a.low us to form opinions on the relevance of each permission to the issue at hand and each other.

In relation to your own situation, my previous post above gives an overview of what may be the position in planning law.

If we see your conditions severed either by the local authorities involved of an Bórd Pleanála may result in changes to the development guidelines issued by the DOEHLG. In relation to this, advice from a planning consultant might be of use.

Equally, or alternatively, an approach to the minister by sufficient members of the electorate who are in financial difficulty and wishing to sell their property to release funds to discharge debts may be a most effective way to deal with this, as I imagine this affects more than two posters to AAM and many more countrywide.

In this approach, the minister might review the existing guidelines and issue a top-down review of your cases.

I know this might seem far-fetched at the moment, but both local authorities and ministers listen to large numbers of the electorate speaking with one voice much better than a voice speaking alone.

Perhaps an initial effort in both directions [and in any others suggested here] would be useful to at least see what resistance there is to doing this on compassionate grounds.

HTH

ONQ.

[broken link removed]


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## galway1 (31 Jan 2010)

*Re: Planning permission clause that you cant sell within 5 yrs? Any1 break?*

Hi,

Thanks for your reply onq.I can confirm it was Galway County Council that gave me the planning.This is what is on my grant of planning."



> Reason: In the interest of Clarity.
> 2) Use of the proposed house(s) shall be restricted to use as a house by the applicant, applicant’s family, heirs, executors and administrators or persons involved in agricultural or related activities, returning immigrants or those with an essential housing need in this rural area, unless otherwise agreed by the Planning Authority for a period of 10 years. No development shall be commenced until an agreement embodying a provision to that effect has been entered into with the Planning Authority pursuant to Section 47 of the Planning & Development Act 2000. The period of restriction shall have effect from the date of first occupation of the house. Within two months of the occupation of the proposed dwelling, the applicant shall submit to the planning authority a written statement of confirmation of the first occupation of the dwelling.


 

 I have heard of other people trying to get clauses lifted and from what I heave heard they were put through hell but that was over a year ago. The person I heard about had a buyer who was a doctor but planning authority in Galway would not accept this buyer as he had nothing to with the area he eventually found another buyer they would accept but had to sell for €80,000 less then he was getting from the doctor. He also had to have a letter from the bank saying they were going to reposes the house, pay thousands to a solicitor and money to the council to get out of the clause. By the time he was finished up he still owed €50,000 to the bank and no job or place to live! By the way he was also self employed and his wife worked full time so couldn't get all the big hand outs welfare give out apparently you are not really entitled to anything if you work full time. The place I work in has  over 1000 people employed and I have heard a lot of people looking to work part time could not understand why so many people were looking for this all of a sudden so I asked last week and answer -you get more for working 2/3 days then working 5 days as you can claim -wait for it FIS and ONE PARENT family allowance and some back to school allowance when kids get back to schools in September oh and a medical card and maybe a house on some RA scheme as well! This is on top of the wages in work. Seems to me this country wants everyone on welfare can't understand why anyone should be able to claim this amount of money seems really unfair.


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## Ann1 (31 Jan 2010)

Galway 1
Circumstances have changed greatly since last year. Galway City and County Councils now find themselves in a similar situation to yourself and many others....they have assets they are finding it difficult to maintain. They may now be more open to removing or adjusting planning clauses that they felt were justified a few years ago. They themselves were/are unable to sell their Affordable Housing stock as they were/are over priced compared to the open market. These houses also had a claw back clause i.e. (if the owner sold the property within a certain period they had to give a percentage of the sale price back to the council). To help resolve their problem the councils reduced the prices greatly and offered these houses for sale on the open market. In order to sell them on the open market they had of course to remove the claw back clause. Maybe you could approach the council requesting them to modify the planning clause and afford you the same flexibility that they themselves needed to exercise in these very difficult times. Do you have a local TD that could maybe help you prepare a request.


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## number7 (31 Jan 2010)

Galway 1 
Money is important but never put it before your family. Make sure tha you are prioritising your debts, I would suggest that you and your husband go urgently to MABS or else find someone you trust with some financial nouse to assist you to make a statement of means from which you can then select the most essential items to pay.

Try and make sure you pay whatever you can afford consistantly on your mortgage even if this is only a fraction of the amount owed, it will help to protect you in the event of a court case as it will show that you are doing what you can and not just refusing to pay.

Remember that the banks will probably refuse any suggestions you make in the first instance but tough it out with them and you tell them what you are going to do about your debt rather than react to their demands, this will help you gain control of the problem (not solve it but control it.)

Your boyfriend is probably under immense pressure emotionally (as you are) as it sounds like he is used to being a good provider, it is a very difficult change for you both try not to take the circumstances out on each other, ye will be stronger dealing with this unified as opposed to on your own.

Finaly please tell your mother of the financial situation she is now in due to your difficulties as it would be very unfair if your situation caused her to be in the same pickle. 

Good luck you are not on your own many others in similar situation.


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## Vanilla (1 Feb 2010)

This is a political issue. Get on to your local councillor, get your family and your boyfriends family to start ringing. Make an appointment to see someone in the planning department and tell them your story. Ask them for a 'letter of comfort' to say that although this condition is in the planning, that given your circumstances the local authority will accept your need to sell. Leave it with the planning department and get the councillor on the case.


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## onq (1 Feb 2010)

Vanilla, the tribunals are littered with people who thought planning issues were only political in nature.
However, I am now more of the opinion, having read the other contributions here, that this should not be solely addressed through each local authority.
I agree, and indeed have advised, that political pressure should be brought to bear, but that is because of the scale of the problem, which seems to need direction from the Minister.
However I don't think favouritism /croneyism [and I know you weren't suggesting this per se] - as expressed by local parish pump politics - is the way to address anything, much less deal with a nationwide crisis.
This is so serious that Environment Minister John Gormley T.D. should step up to the plate on this [and on many other issues] and not just do something, but be seen to do something, to give leadership and to drive solutions forward.

FWIW

ONQ.

[broken link removed]


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## Complainer (1 Feb 2010)

Is there a bit of hypocracy going on in some of these cases with 'local' clauses. The 'local' clause was used when PP was sought as a key arguement for why the property was to be built, so it is just a bit rich to say now that the 'local' need has suddenly gone away.


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## davidoco (1 Feb 2010)

Under the following review proposed by the Green Party, if the right people were to make submissions, an additional measure could be that occupancy clauses could be waived in certain circumstances.

http://www.timesonline.co.uk/tol/news/world/ireland/article7009807.ece


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## number7 (1 Feb 2010)

Complainer said:


> Is there a bit of hypocracy going on in some of these cases with 'local' clauses. The 'local' clause was used when PP was sought as a key arguement for why the property was to be built, so it is just a bit rich to say now that the 'local' need has suddenly gone away.


 
Should local people not be allowed the same rights as others, I bought my house in the full knowledge of the clause as I was of the opinion that it would apply to others who wished to build locally. I am the only house out of 12 on our road built within 24 months of each other with a 10 year clause.

My house is valued less than all my neighbours due to the clause, no properties now being built in the area have these clauses.

All these clauses should be recinded NOW. I will continue to live in my house regardless but there are significant ramifications in the event of death, illness, unemployment, borrowing against an asset  etc.

It is absolutely wrong that the OP is not allowed to sell her property to cl3ear her debts.

In theory the OP could have her 800k house reposessed for the 300k owing while she has 10 buyers ready to buy for 500k, enough to clear all her debt but instead a silly rule gets in the way.

Imo it is a breach of human rights that when tested in court will not stand up but until someone tests it...................


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## Complainer (2 Feb 2010)

number7 said:


> Should local people not be allowed the same rights as others


Exactly - local people should have the same rights as others. Not 'special' rights or permission to build based on their local need.


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## number7 (2 Feb 2010)

I am now the owner of a property that has a restriction on it that the other houses in the area dont have. You or anyone else is free to buy any of a number of houses both new build and 2nd hand near me without any restriction. Why should I be treated differently to you in this circumstance.

As you so rightly say I "should  have the same right as others not special rights" but the others have been granted different rights to the ones granted to me not me granted special rights. I accepted the clause when I bought my house on the understanding that the rule would apply to all new builds in the location, it now doesnt. On that basis I think that it shoud be removed, I also think that the speculation and investment reasons behind the clause or a bit out of date now seeing as there are no speculators or investors in the market.


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## galway1 (2 Feb 2010)

number7 said:


> Galway 1
> Money is important but never put it before your family. Make sure tha you are prioritising your debts, I would suggest that you and your husband go urgently to MABS or else find someone you trust with some financial nouse to assist you to make a statement of means from which you can then select the most essential items to pay.
> 
> Try and make sure you pay whatever you can afford consistantly on your mortgage even if this is only a fraction of the amount owed, it will help to protect you in the event of a court case as it will show that you are doing what you can and not just refusing to pay.
> ...


 
Well have told my mother she is upset but was fine with me more worried about trying to get money for us than anything else and don't want her to do that don't I really don't think it's fair at 65 years of age. As for relationshipI think there is a limit of how much fighting people can do especially when you have a 5 year old asking you to stop fighting all the time! Really are very sad how 2 people who got on so well from never having agreements to arguing every time they lay eyes on each other all because of money. Have tried the counselling route I think he has just taking so many knocks now he just can't take any more he is just a completely different person now

As for the county council have contacted them still waiting for them to answer. Think I will have to go to a solicitor to help as well. Really do think ONQ is right there must be lots of people with these type of clauses -government should be involved and step in to sort these type of things they were fast enough to help all the banks.

Thanks again for all the replys


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## PaddyBloggit (2 Feb 2010)

Contact the Green Party ... they seem to be all about getting relief for people with mortgage difficulties ..... worth a try.


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## alphakenny (3 Feb 2010)

just wondering - if this persons house was repossessed by the bank - would the bank be able to sell it?


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## number7 (3 Feb 2010)

alphakenny my understanding is that the clause only applies to the first owner/occupier. If the bank were to repossess I believe that they would be considered the 2nd owner and the clause would therefore die with the repossession. I am open to correction.

Seems scary that a house with so much equity could be repossed without even an attempt to sell it to clear the debts, but then we live in a really crazy country.


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## bb12 (3 Feb 2010)

i don't think this clause has as much weight if the bank are re-possessing..this is the condition which was placed on my planning grant and you'll see by the final sentence it allows for such a case as you find yourself in, i believe.



1.	(1)	The proposed dwelling, when completed, shall be first occupied as a place of permanent residence by the applicant, members of the applicant’s immediate family or their heirs, and shall remain so occupied for a period of at least seven years thereafte2, unless consent is granted by the planning authority for its occupation by other persons who belong to the same category of housing need as the applicant.  The applicant shall enter into a written agreement with the plajning authority under section 47 of the Planning and Development Act, 2000 to this effect. 

(2)	Within two months of the occupation of the proposed dwelling, the applicant shall submit to the planning authority a written statement of confirmation of the first occupation of the dwelling in accordance with paragraph (1) and the date of such occupation.

This condition shall not affect the sale of the dwelling by a mortgagee in possession or by any person deriving title from such a sale.


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## number7 (3 Feb 2010)

I think there are quite a few variations depending on the county council involved. My clause has no reference housing need and is not based on "family land". It applies to a house built by a developer and sold on the open market with the only condition being that the 1st owner/ occupier is not allowed to rent or sell for a period of 10 years. 

As such it does not contain any of the paragraphs listed above.


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## ACA (4 Feb 2010)

I have a similar stipulation myself only mine is for 20 years, not 10. Further in the contract it stipulates that the land I purchased was at a reduced rate and I can sell PRIOR to the expiry period providing I pay a 'clawback'.

I would suggest that you take your contract to a solicitor for additional clarification to see if there is something similar in your contract. If there is...happy days - at least you can sell. If not then why not approach the Council about it first - the worst thing that they can say is no.


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