Occupancy clause for a new house

gn3dr

Hi
Wonder if anyone can help with a question. I'm in the process of buying a new house in a small development in the South West. The house I'm buying is my first house. I am currently working in the Dublin region where I am renting. I plan to use in on weekends and holidays for the short term (maybe 2-3 years) with a longer term aim of moving back home permanently.

My question is around the occupancy clause which is attached to the planning permission granted for this small development. There is a 2 year occupancy clause attached stating the house must be the permanent full time residence of the owner. A certificate has to be obtained on moving into the hosue to prove this.

What is the definition of full time resdence for this purpose?

Will the council actually check this out once the house is sold by the developers?

Can I get around this residency clause anyway?

Will a solicitor help me get a certificate if I tell them my circumstances?
Replies will be much appreciated.

MorningStar

Can I just ask why do you think there is an residency clause?

gn3dr

It's listed as one of the clauses in the planning approval for the house. Received this document with the contract.

MorningStar

gn3dr wrote:

It's listed as one of the clauses in the planning approval for the house. Received this document with the contract.

THe question remains why not how it got one.

jhegarty

gn3dr wrote:

Hi
Wonder if anyone can help with a question. I'm in the process of buying a new house in a small development in the South West. The house I'm buying is my first house. I am currently working in the Dublin region where I am renting. I plan to use in on weekends and holidays for the short term (maybe 2-3 years) with a longer term aim of moving back home permanently.

My question is around the occupancy clause which is attached to the planning permission granted for this small development. There is a 2 year occupancy clause attached stating the house must be the permanent full time residence of the owner. A certificate has to be obtained on moving into the hosue to prove this.

What is the definition of full time resdence for this purpose?

Will the council actually check this out once the house is sold by the developers?

Can I get around this residency clause anyway?

Will a solicitor help me get a certificate if I tell them my circumstances?
Replies will be much appreciated.

you could "commute" (at least as far as the council is concerned)

Victor

You mean you are buying a house that was only given PP on the basis that it wouldn't be used as a holiday house, but you want to use it as a holiday house?

gn3dr

I am buying a house from a builder through an auctioneer. The occupancy clause only became known to me at contract stage.

Morning star - perhaps I should buy a 2nd hand house with no occupancy clause - then the seller of the 2nd hand house could buy a new house like mine and that would prevent all the extra houses being built - but no wait - it would make no difference would it?????

MorningStar

gn3dr wrote:

I am buying a house from a builder through an auctioneer. The occupancy clause only became known to me at contract stage.

Morning star - perhaps I should buy a 2nd hand house with no occupancy clause - then the seller of the 2nd hand house could buy a new house like mine and that would prevent all the extra houses being built - but no wait - it would make no difference would it?????

All I asked is why do you think it is there is a clause. You appear to know why and have just come up with a senario that is unlikely, why would the other people sell their house. THe idea is not build houses in areas that don't need them and have the place end up like a commuter town.Ultimately it is for protection of the community you wish to return to. If you can afford rent and a mortgage why not by where you live as a Dublin house increases more than houses outside?

homeOwner

gn3dr wrote:

Will a solicitor help me get a certificate if I tell them my circumstances?
Replies will be much appreciated.

You want a solicitor to help you do something that would deemed to be illegal in terms of the contract you are signing. Eh, no I dont think you will get one to help you.

gn3dr

MorningStar wrote:

All I asked is why do you think it is there is a clause. You appear to know why and have just come up with a senario that is unlikely, why would the other people sell their house. THe idea is not build houses in areas that don't need them and have the place end up like a commuter town.Ultimately it is for protection of the community you wish to return to. If you can afford rent and a mortgage why not by where you live as a Dublin house increases more than houses outside?

I took your reply as being a bit smart. I do understand that the councils around the country put these clauses in to "control development" however I don't think it works. The fact is that the house is already built.

The scenario I came up with in not unlikely - it is quite likely that someone who already owns a house in an area would buy a different house like this and sell their old one. People often move for various reasons - to trade up, change location etc.. In a situation like this the whole occupancy thing is a joke - it seems to me that it merely prevents anyone building a new house as a non permanent residence. Are there any restrictions on them buying an old house?

I'm not interested in buying in Dublin as I don't want to stay here. Whether a house increases in value up here quicker is not my main motivation. I'm looking to buy a home not an investment. I would prefer to have the house bought before moving back home because I don't want to move and then waste time looking for a place after the move. Renting and maintaining a mortgage is not a long term plan either due to affordability.

MorningStar

gn3dr wrote:

I took your reply as being a bit smart. I do understand that the councils around the country put these clauses in to "control development" however I don't think it works. The fact is that the house is already built.

You do not what a deterrant is? The restriction stops the price going up above the local residents. I assume you work in Dublin for better salary or just to be employed. It stops people going on to build more. AS you can't buy this house it appeears to be working for me.

gn3dr wrote:

The scenario I came up with in not unlikely - it is quite likely that someone who already owns a house in an area would buy a different house like this and sell their old one. People often move for various reasons - to trade up, change location etc.. In a situation like this the whole occupancy thing is a joke - it seems to me that it merely prevents anyone building a new house as a non permanent residence. Are there any restrictions on them buying an old house?

Very few people buy houses just to get a new house. THey either upgrade or downsize. In a situation with a person living and working in Dublin buying a property not to live in it full time the clause seems to be working 100% as intended. There are areas where locals can't buy yet there are mostly empty holiday houses. I don't see how this is a joke but I do see why you don't like it personally.

gn3dr wrote:

I'm not interested in buying in Dublin as I don't want to stay here. Whether a house increases in value up here quicker is not my main motivation. I'm looking to buy a home not an investment. I would prefer to have the house bought before moving back home because I don't want to move and then waste time looking for a place after the move. Renting and maintaining a mortgage is not a long term plan either due to affordability.

You don't have to stay here if you buy. I only made the suggestion tas shrewd money move considering.
Either way you are not trying to be socially responsible. You want to go to Dublin work and take as much money as you can then out bid the people who keep the community in place that you want to live in. That is not the moral high ground but the complete view of self over everyone else. Your choice but now it has been spelled out you can't claim ignorance of how and why your view is selfish.

Victor

Oh, if this issue has only been brought up at contract stage, you might have a case against the builder.

Chappleton v Barry UDC[1] sets out that you can't have new conditions added after contract (at least not without agreement). However, at this point you haven't signed a contract to buy the house, i.e. the Statute of Frauds says you don't a contract. You have presumably have put time and effort into this and have paid a deposit. While in other cases you would have a major case against the builder, because of the Statute of Frauds its a case aof false advertising.

[1] Chappleton v Barry UDC [1940] 1 KB 531

Deck chairs were stacked by a notice asking the public who wished to use the deck chairs to get tickets and retain them for inspection. The plaintiff paid for two tickets for chairs, but did not read them. On the back of the ticket were printed words purporting to exempt the council from liability. The plaintiff was injured when a deck chair collapsed. The clause was held to be ineffective. The ticket was a mere receipt; its object was that the hirer might produce it to prove that he had paid and to show him how long he might use the chair. Slesser LJ pointed out that a person might sit in one of these chairs for an hour or two before an attendant came round to take his money and give him a receipt.

gn3dr

So Morningstar let me get this straight

You think restrictions keep prices down?

You should never plan ahead and buy a house in an area you are going to move to - much better to wait and let prices go up further?

You are concerned by rising prices but you suggest I go into the Dublin market and "bid" against the locals there - thereby inflating the market here even further. This is on your advice of being shrewd with money - i.e taking a financial outlook rather than your suggested socially reposnsible one.

You make a lot of assumptions in your replies. I'v got your input now - so thanks for that - I don't need anymore from you.

Victor

gn3dr wrote:

You think restrictions keep prices down?

All restrictions affect price.

If there are two identical houses next to each other and one is only available to locals and one is available to everyone and assumming demand exceeds supply in both cases, the market dictates that the house without the restriction will get a better price.

Conversely, certain restrictions will also increase prices - but only for those that see the restrictions as being favourable to them.

MorningStar

gn3dr wrote:

So Morningstar let me get this straight

You think restrictions keep prices down?

Actually I don't think it, it actually does. It was designed to do so. You think it rises houses prices?

gn3dr wrote:

You should never plan ahead and buy a house in an area you are going to move to - much better to wait and let prices go up further?

You can plan all you like but you don't get to screw others over to do. A social policy not a personal one to suit individual desires.

gn3dr wrote:

You are concerned by rising prices but you suggest I go into the Dublin market and "bid" against the locals there - thereby inflating the market here even further. This is on your advice of being shrewd with money - i.e taking a financial outlook rather than your suggested socially reposnsible one.

What you don't accept is you are a local here now. You live and work here so you should partake. You wouldn't opush up prices here you would be paying for where you decide to work. Do you drive and pay Dublin insurance prices or use you old address.

gn3dr wrote:

You make a lot of assumptions in your replies. I'v got your input now - so thanks for that - I don't need anymore from you.

Name my bunch of assumptions other than the reason you are living in DUblin. Whether you want my comments is irrelavant you started asking for a work around on a law that is designed to stop the likes of you.

HelterSkelter

gn3dr wrote:

I'm not interested in buying in Dublin as I don't want to stay here. Whether a house increases in value up here quicker is not my main motivation. I'm looking to buy a home not an investment. I would prefer to have the house bought before moving back home because I don't want to move and then waste time looking for a place after the move. Renting and maintaining a mortgage is not a long term plan either due to affordability.

MorningStar has a point. I don't see why you don't buy in Dublin, then when you want to move back to the SW sell the Dublin home and buy one there. You will make more money as the houses prices in Dublin increase faster, so you might be able to afford a nicer house in the SW when you decide to move back.

rooferPete

Hi,

I wish more people would be forward thinking like gn3dr in his op he states he intends returning to his home area in 2 > 3 years.

From my reading a person who can't afford to buy today could rent the property and when he is ready to return home he has a house waiting for him, the rent he receives would be transferred to his Dublin rent.

Nothing wrong with forward planning in my view, in fact refreshing to see instead of the crying about the prices.

If you can put together a viable plan showing you are a temporary dublin resident but you regard the area as home the planners might buy it, alternatively you can house share by keeping a room for yourself not available to any tenant.

Best of luck with your plans for the future.

lomb

rooferPete wrote:

Nothing wrong with forward planning in my view, in fact refreshing to see instead of the crying about the prices.

couldnt have said it better myself rooferpete, they should teach that in school;) ,but i guess its something that cant be taught:(

ck1

Just a comment really. I review a large number of contracts for clients with Property Portfolios and have noticed that Occupancy Clauses are becoming more and more common in certain areas around Ireland. It would appear that these restrictions are being inset to cut down on the amount of properties being purchased for rental purposes as opposed to persons purchasing as a second home to be used as a holiday home personally. It would also appear that it is more common in areas where there was a Tax Incentive property development, e.g Section 23, 48 and 50 developments.

Another one that I saw was only really for the purpose of pushing the builders to pay for a water treatment plant on the land. The clause stated that it would be withdrawn when the water treatment plant was underway but required direct monitory input by the builder. The planning authorities new that properties on this particular site would take a longer time to sell or would sell at a lower price if the clause remained. Needless to say the builder paid a lump sum over for the Water Treatment Plant.

Other Occupancy Clauses that I have seen were imposed to ensure that the development of the area was for locals. The following is the exact wording as a reason for such an occupancy clause given by the Planning Authorities...

Reason: To ensure the proposed house is used to meet the applicants housing needs and that development in this rural area is appropriately restricted to meeting the local need in the interest of proper planning and sustainable development of the area.

If you contact An Bord Pleanála they should let you know as to the reason this clause was included.

rooferPete

Reason: To ensure the proposed house is used to meet the applicants housing needs and that development in this rural area is appropriately restricted to meeting the local need in the interest of proper planning and sustainable development of the area.

Hi ck1,

I find that particular clause interesting, it appears to worded in such a way that the Local Authority is cherry picking, who buys, who builds and where they build based on any of the criteria they wish to use.

"To ensure the proposed house is used to meet the applicants housing needs"

That could be argued to be the local Authority looking after the buyer :

and that development in this rural area is appropriately restricted to meeting the local need in the interest of proper planning and sustainable development of the area.

This part is saying what most Local Needs applicants expect, I think it could be argued that the first part over rules the second or vice versa.

I'm not arguing with you just making an observation.

.

iguana

HelterSkelter wrote:

MorningStar has a point. I don't see why you don't buy in Dublin, then when you want to move back to the SW sell the Dublin home and buy one there. You will make more money as the houses prices in Dublin increase faster, so you might be able to afford a nicer house in the SW when you decide to move back.

This does not take into acount the issue of stamp duty. gn3dr would have to pay 2nd time buyer stamp duty when purchasing the house in the SW. This could easily negate any benefitt of this scenario.

Gn3dr, can you make the SW house your primary residence? Keep all bills in your name and keep one room as yours at all times. Officially this is your home and you only rent in Dublin during the week for work purposes. You will have to do this anyway or you will not qualify as a first time buyer for stamp duty.

ck1

No argument with me, my comments were just what the Planning Office stated and what I wrote was actually word for word.

And local authorities are picking as to who can reside in what areas, for example, in certain parts of Wicklow, to get planning permission, you must to build your own home, you must have been born in the county or I think have family or some definative connection in the area.

Sometimes seems unfair but thats life.