Emyr Pierce

We have just bought our first house and need to make a Will. A friend of mine has created a DIY Will using a special pack bought from a local stationery business. Is this something I can do fairly simply?

One thing you can always guarantee is that when somebody intends to make a Will they will claim it is straightforward and simple. If this were the case then it would be perfectly in order for everyone to simply draw up their Will on the back of a cigarette packet. However, half an hour with a Lawyer specialising in Will drafting will identify many aspects that you may not have considered.

You may well have a good idea of what you want to leave – and to whom - but it is the provisions within the Will that take into account certain unforeseen circumstances or, in particular, people dying in the wrong order, which can often be critical.

Ensuring that provision is made for surviving children, even if you do not have any at the time of making your Will, along with the appointment of Guardians for young children, ensuring that your share of any joint matrimonial assets will actually end up with any children from your first marriage, (and similarly for your wife), and above all else your specific wishes recorded in a legally binding document are all critically important. Do yourself a favour – and consult a specialist to draw up your Will.

Is it illegal for my former Landlord to open my mail? I moved out of the flat last month and he has opened two letters addressed to me at the property he rented to me.

It is not illegal for anyone to open your mail. It is certainly discourteous, but not illegal. You should have arranged for all your mail to be forwarded to your new address through the Royal Mail Redirection Service so that the only mail that would continue to be delivered to the property is junk mail.

Any subsequent mail received at the property could either be binned, opened, or destroyed by either the new occupant, or the Landlord and you would be none the wiser. One always relies on the integrity of either new occupiers or former Landlords to forward unopened mail, but of course there is no obligation on anyone to do so and certainly not for any indefinite period.

We are hoping to sell our house to my wife’s cousin who is moving to the area to work. Is it true that we won’t need a HIP as we are selling to a member of the family?

A HIP is now required in the event of a property being offered for sale to the general public.

However, in the event of a privately-negotiated sale no HIP is required – whether or not this is a sale to a member of your family, provided it has not been marketed in any way.

Marketing includes a sign in your garden or window advising that the property is for sale. You will, however, still require an Energy Performance Certificate.

Should you have placed your property on the market only for a member of your family to end up buying it, then a HIP will be required as you cannot market your property without one.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

Our son has just returned from abroad and will be living at home and paying a small rent to us. Do I need to tell my mortgage company about this?

It is a condition of all mortgages that if you have anyone living at the property, other than the Borrowers, who is over the age of 17 and who resides at the property as his or her main residence, you are obliged to notify your mortgage company immediately as they will require that individual to sign a form effectively postponing that individual’s right to occupy the property in favour of the mortgage company’s rights under the mortgage.

The reason for this is that the Borrowers will have entered into a binding legal contract with the Lender whereby, in return for the money borrowed, the Borrowers charge the property in favour of the mortgage company. This contract is personal to the mortgage company and Borrowers.

In a case 20 years ago it was established that any person other than the Borrowers over the age of 17 who occupy the property as their main residence have the right to occupy that property – a right that ranks in priority to any other interest which a third party may have in the property, such as a mortgage company.

This decision was far reaching and resulted in all mortgage companies addressing the problem by requiring a formal Deed from the occupier whereby the occupier postpones his or her interest in the property.

Failure to obtain such a form would result in your son being entitled to remain living in the property in the event of you falling into arrears on your mortgage and being re-possessed.

You would, however, be liable for any loss suffered by the mortgage company due to your breach of your mortgage conditions.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am buying my first home and have been told my mortgage company is waiting for the Certificate of Title. What is this and could it cause a hold up?

The solicitor acting on your behalf in the purchase of your new home will, usually, also act on behalf of your lender providing you with the mortgage funds required for your purchase.

Your solicitor will need to satisfy very strict and extensive conditions and requirements which all lenders require from solicitors and conveyancers. This obliges your solicitor to report to your Lender any issues arising out of any pre contract investigations, either in respect of the title of the property, or your own personal circumstances, insofar as these differ from the position reflected in your mortgage offer, the most common variation being a change in the purchase price.

Only when your solicitor is satisfied on all aspects will he be prepared to submit to your Lender his report on the title of the property, otherwise known as the Certificate of Title.

This is the form which confirms to the Lender that all matters relating to the property are acceptable, that there are no onerous covenants or lack of rights of access or services to the property, and that, in the opinion of the solicitor, the property has a good and marketable title. The certificate will also specify the completion date on which the funds are required.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am hoping to part exchange my house for a new one. I have heard that this is a good way of saving stamp duty. Is this true?

Unfortunately it is not true. Some years ago Stamp Duty, as it was then, was only payable on the “Equality of Exchange”. This was the difference between the sale and the purchase prices and proved popular in the last recession when property developers were finding it difficult to sell new properties and the Stamp Duty savings were a popular attraction of part exchange schemes.

The new regulations governing Stamp Duty Land Tax (SDLT), as it is now, has removed this major benefit in the case of part exchange transactions. Stamp Duty Land Tax is payable on the value of the asset being acquired – regardless of whether it is being part exchanged for an existing asset.

Accordingly, SDLT will be payable on properties where the price exceeds £175,000.00 and not on the “Equality of Exchange” between the two part exchange values.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am planning to buy a house with a shared driveway what implications could that have for me?

It is increasingly the case on new open plan developments that plots have shared driveways. The main issue to consider is that each property with a shared access will be bound by the existence of various covenants preventing the obstruction of the shared access.

The shared driveway will be private and not form part of the public highway which means those occupiers who have the right to use it will, in turn, have an obligation to contribute an equal percentage of the cost of maintaining and repairing the shared driveway.

Usually, a shared driveway does not cause unnecessary problems. However, there is always the risk that one of your neighbours will prove unreasonable, in which case your only remedy will be through the developer who will have the right to enforce the covenants.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am in my sixties and have recently remarried and put my home in joint ownership with my new wife. How do I ensure my children from my first marriage are looked after on my death?

The need to protect your share of the assets which you own jointly with your new wife to secure the inheritance of your children by your first marriage is extremely important. Often the bulk of your Estate is represented by the value of your house. If the property was previously in your sole name prior to your remarriage then there is a danger that, following your remarriage, one way or another your Estate may not necessarily pass to your children by your first marriage.

Having placed the property in joint ownership with your new wife it is imperative to ensure that you own the property as tenants in common and not joint tenants. On the death of a joint tenant the surviving joint tenant automatically inherits the whole of the property by survivorship.

Owning the property with your new wife as tenants in common ensures that your one half share in the property can be left to whoever you specify in your Will. Drawing up a suitable Will leaving your one half share of the property to your children by your first marriage will ensure that their inheritance is protected.

The only issue then is that your new wife may well want to continue living in the property of which she is a one half owner. You should, therefore, include a provision in your Will allowing your wife the right to remain in the matrimonial home until the earlier of her dying, voluntarily vacating, co-habiting with another, or her remarrying. The drawback is your children may not see their inheritance until after one of those events happen.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am buying a property that was built in the 1980s. Should I check the condition of the central heating?

Of course. Other than the structure of the building, the central heating system is the most expensive component in any property and you are deemed to buy a property in the full knowledge of its state and condition.

I would always advise a purchaser to have the central heating system inspected by a central heating engineer prior to exchange of contracts in order to ensure it is in good working order.

Should your Engineer’s Report condemn the system then you would have identified that it needs either replacing or substantial repair, before making a legal commitment to purchasing the property. This would enable you to re-negotiate the price.

Should you complete the purchase and then arrange for the system to be serviced only to find out that the system is condemned, it would then be too late for you to claim any recompense against the seller, or re-negotiate the purchase price.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I own a flat which I have been renting out for the last few years. My current tenant is behind three months on her rent and refusing to leave, despite her tenancy having run out. How do I get her out?

Despite the fact that your tenant may have continued to occupy beyond the date of a fixed term tenancy, usually six months, you still have to follow the appropriate procedure and cannot simply evict her, or change the locks as this would be a breach of the Anti-Eviction Laws.

If your tenant is at least two months (if payable monthly) and eight weeks (if payable weekly or fortnightly) in arrears with her rent then the mandatory ground for possession on the grounds of arrears of rent will be available to you and the Court must make an Order

You are strongly advised to seek the advice of a solicitor to ensure the appropriate timescales are strictly adhered to. Failure to follow these will result in your having to begin the process all over again, causing further delays.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My next door neighbour is extending his house and wants to buy a slice of my garden to allow him access along the side of his property. I am willing to sell, but how should I value it and should I tell my mortgage company?

You need to seek the advice of a surveyor to value the land you are proposing to sell, and ensure that by transferring the land you do not lose any critical value element of the land you are keeping – the Retained Land.

You will be unable to sell any part of your property which is subject to a mortgage without the consent of your mortgagee. Therefore, once you have an agreed valuation you must ask your mortgage company for consent for the transfer of this piece of land as it will need to be released from their Security.

Depending on the size of the piece of land and its value, the mortgage company may require you to reduce the amount of the mortgage by paying them part of the proceeds from the sale. This will, of course, depend upon the size of your mortgage in proportion to the value of the Retained Land and, in most cases involving small pieces of land, they will not be too concerned about any reduction in the value of the land against which they have their Security.

Please ensure that the land in question does not have vital services passing underneath it otherwise certain rights will need to be reserved over the land transferred in order to retain the right to use those services and access for any future maintenance and repair.

Finally, a new boundary will need to be established and I would strongly advise you to ensure that the adjoining owner is responsible for its construction and its future maintenance and repair.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My father-in-law is selling his home and has agreed a price, but before anything could be signed he suffered a major stroke. He has no Power of Attorney. What should we do?

This will inevitably cause a delay in the sale. If your father does not have the necessary legal capacity to enter into a contract as a result of the stroke then you have no alternative other than to apply to the Office for the Public Guardian for the appointment of a Deputy to act on his behalf. This can take many weeks, inevitably causing a delay in the transaction. This cannot be helped. If your father simply becomes physically impaired as a result of the stroke, but is fully aware of what is happening and is clear as to his intention to sell the property, then he can appoint an Attorney to act on his behalf by drawing up a Lasting Power of Attorney. However, under the new LPA regulations this will only become effective once it is registered with the Office for the Public Guardian and again there can be a delay of some weeks before such registration is completed. Generally, the extent of the delay will depend of what provision, if any, your father had made prior to his suffering the stroke.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

We have signed contracts, agreed exchange dates and are due to move into our new home in two weeks time, but the sellers are now saying they cannot move out for at least another week. There are people moving into our house, so we will have nowhere to go. Can we force the sellers out so that we can move in on the agreed date?

This is a scenario that should never ever arise. The fact that you are in such a position suggests you have already exchanged contracts on your sale and are committed to moving out on the date already agreed on your sale.

While the same date may have been anticipated on your related purchase the fact that contracts have yet to be exchanged on your purchase means that this can always change. Accordingly, the failure to exchange simultaneously on your related sale and purchase has led you to this impossible situation.

You cannot force your sellers to move out of the property despite the fact that they may have agreed the proposed completion date many weeks previously. It is only on exchange of contracts that the parties are legally committed to a completion date. You have, therefore, taken a risk in exchanging contracts on your sale without a simultaneous exchange of contracts on your related purchase and as things have panned out your dates are not going to coincide.

You have no alternative other than to move into temporary accommodation regardless of how short this period may be – a prospect you should have considered very carefully when you decided to exchange contracts on your sale independently.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am buying my first house and the search has revealed the public sewer runs through the back garden. Is this something I should worry about?

All public sewers are owned and maintained by the local water authority – in Wales, Welsh Water – and you are unable to build anything over it, such as an extension, hard-standing, summerhouse or garage, without first entering into a Building Over Sewer Agreement with Welsh Water.

These Agreements can be costly to draw up (approximately £1,000) and will specify strict conditions attached to any building works to ensure that the public sewer beneath is protected. That is why any sewers crossing rear gardens are usually situated in the bottom quarter of the garden, well away from the house so as not to interfere with any anticipated extension works.

However, there are some old properties where the sewer runs directly outside the back door and this is a major concern as it effectively makes future development, or extension work either expensive or impossible.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am interested in buying a property but would like to ensure that the owner includes all the carpets and curtains in the sale. Are these likely to be included as fixtures and fittings?

When agreeing to buy a property you must ensure the estate agent’s particulars include details of the carpets, curtains and other fittings, or that your solicitor receives specific confirmation in the Fixtures and Contents form that such items are included in the sale.

Sellers should ensure that any Fixtures and Contents form they may have completed at the outset still remains accurate in the event of an abortive sale and subsequent re-sale at a lower price.

Sellers who have had to sell for a reduced price sometimes decide to remove certain fixtures and fittings because they are receiving less for their property. In such cases the seller will need to complete a new form to ensure that the full terms of the sale are accurately recorded.

Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My husband gifted me his share of our house three years ago but now he has major debt problems and I have heard that the transfer of the property into my sole name could be overturned. Is this true?

Sadly, you are right. Under the current Insolvency laws, if the person making the gift becomes bankrupt within five years of the date of the gift then the bankrupt’s Trustee in Bankruptcy can claim that the transaction was an attempt to defraud creditors and declare the transfer to be void.

This will have serious implications for you as the property will then be regarded as remaining in your husband’s sole name and will be available for the Trustee in Bankruptcy to force a sale to pay your husband’s creditors.

You will have certain rights of occupation as the spouse of the bankrupt but you may be forced to buy the property off your husband’s Trustee in Bankruptcy to preserve your right to live at the property.

In the case of a Deed of Gift it is always prudent to obtain a Declaration of Solvency from the Donor (the person making the gift) and also taking out a Deed of Gift Indemnity Policy to protect the Donee (the person receiving the gift) against the possibility of a claim being made against the property by a Trustee in Bankruptcy within five years of the gift.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am buying a flat and have agreed to pay £250,000. I have now been advised that the seller also owns a garage on the development and it is a condition that she must sell the garage at the same time as the flat either to the new flat owner or to someone else who is already an owner on the development. The cost of the garage is £15,000. I do not want the garage and am tempted to withdraw. What should I do?

You should not pay £15,000 for a garage you do not want. More importantly, the additional £15,000 for the garage will mean that the total cost of your purchase will put you in a higher rate band for Stamp Duty Land Tax moving you from the 1% band to 3%. It makes no difference that the garage transaction may be subject to a separate Lease and arguably a separate transaction. The reality is that it is a condition of the Garage Lease that it can only be transferred to either a new flat owner or an existing owner of another flat on the development. Should you buy the garage at the same time as the flat then it is a “linked transaction” for Stamp Duty Land Tax purposes and Stamp Duty is payable on the total amount paid, £265,000 – at 3%. If you didn’t want the garage in the first place then the additional £5,450 Stamp Duty should make it an easy decision for you to withdraw.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My neighbour has recently had the outside of his house painted and mine looks very tatty next to it. He now says the state of my property is affecting the value of his and is insisting that I get mine repainted. He is threatening me with his solicitors if I do not do what he asks. Can he do this?

No he cannot. If your property is very dilapidated due to your lack of maintenance then the only remedies available to your neighbour would be a local authority Enforcement Notice declaring the property to be in a dangerous state which would require you to carry out urgent repair works for Health & Safety reasons, or action by an estate owner having the benefit of a restrictive covenant for repair.

It is possible you live on a development where all properties are the subject of various covenants which will include obligations to keep the property in a good state of repair, decorate the exterior of the property, say every five years, and not be a nuisance to your neighbours.

Your neighbour, could at his cost, request that action is taken against you for breach of your covenant to repair, but these remedies would only be available in extreme circumstances and, accordingly, your neighbour’s ability to force you to redecorate your property is very limited.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

Having put an offer on an old house we want to buy, my solicitor tells me he has to carry out searches of the local authority. How long is this likely to take as we are desperate to move in?

With the advent of Home Information Packs, it is the seller who now provides the basic local and drainage searches within the HIP.

However a property (particularly an old property) could have been on the market for a considerable period and accordingly the searches within the HIP may well be out of date. The buyer’s solicitor will not be aware of the date of the searches until he receives the HIP. If the buyers are purchasing with a mortgage, then the searches must be less than six months old. If the searches within the HIP are over six months old, the buyer’s solicitor will always advise that the searches should be updated.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am almost at the stage of exchanging contracts on a property and have been asked to provide a deposit of 15% of the agreed purchase price. Is this normal and if I question it could I be in danger of losing the house?

It is a standard contractual obligation that the buyer is required to provide a deposit of 10% of the purchase price on exchanging contracts – but not 15 per cent. In fact, it is common these days for sellers to accept a reduced deposit as contractual terms will cover the vendor in the event of the matter proving abortive and the seller having to request the balance of the 10% from the buyer.

It is also commonplace that whatever deposit is available at the bottom of the chain, this will be passed up the chain or, indeed even more common these days, the deposit is held by the solicitor at the bottom of the chain to the order of those higher up the chain.

It is a specific condition of the contract that, in the event of the buyer failing to complete, the seller is entitled to forfeit the deposit. If however a deposit of less than 10% is handed over on exchange, this would potentially prejudice a seller and, accordingly, all sale contracts contain a Special Condition whereby the seller can compel the buyer to pay the balance of the 10% deposit in the event of the buyers’ failure to complete.

Only in extreme circumstances, often where a protracted completion date of, say, 6-12 months is agreed, could the buyer be asked to provide a larger deposit. In the absence of such circumstances, any request for a deposit in excess of 10% should be refused.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My mother has been diagnosed with Alzheimer’s and is currently in a nursing home. I have an Enduring Power of Attorney to deal with her affairs, does this mean that I can now sell her property and dispose of her belongings?

Any power granted to you under the Enduring Power of Attorney (EPA) will technically cease once your mother is no longer mentally capable of managing her own affairs.

You are obliged to register your Enduring Power of Attorney with the Office of the Public Guardian (OPG) once you believe your mother no longer has the ability to mentally manage her own affairs.

Once the EPA has been registered with the OPG you can then sell her property – provided there is no prospect of your mother returning home. It would be wise to ensure any brothers or sisters or other close members of the family agree with the proposed sale and, in many cases, it may be necessary to sell the property in order to fund long-term care.

If no Enduring or Lasting Power of Attorney existed, then once your mother was diagnosed as being mentally incapable of managing her own affairs, you would be need to apply to the OPG to appoint a “Deputy” to deal with your mother’s assets.

• Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I read with interest your article on the 16th May 2009 dealing with the transfer of property to children to avoid the property being sold in the event of having to go into care. Your comments would appear a little general. Can you be more specific?

As mentioned previously, if this area of the law causes you concern then you must immediately consult a solicitor.

The reason for making this opening statement was that brevity prevents me from dealing fully with a number of complex legal issues. The transfer of assets and payment for care is a very complex area. It is true that transferring an asset out of your name does not necessarily mean it will not be taken into account in any means test undertaken by the local authority or the Pension Service when assessing a resident’s suitability for assistance.

Both the local authority and Pension Service will look for evidence of any deliberate transfer of an asset out of an individual’s ownership in an attempt to put himself in a better position for obtaining assistance. There is extensive case law on this subject and excellent and accurate guidance on this complex area is available from Age Concern in their Fact Sheet 40 (www.accymru.org.uk).

This deals extensively with the definition of ‘deliberate deprivation of capital,’ instances when deprivation is deemed to be ‘deliberate,’ and the local authority’s Powers of Recovery in circumstances where it is believed that there has been a deliberate attempt on the part of a resident to transfer assets out of his/her possession in order to put him/herself in a better position to obtain assistance.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I have had an offer accepted on a house that I really want to buy. However, does this mean that it is mine subject to contracts being exchanged, or could another buyer still beat me to it?

Either party can withdraw from a transaction up to the point of formal exchange of contracts. That exchange usually takes place once the buyer is satisfied with the results of searches and survey and that mortgage arrangements are in place.

Proceeding without any of these issues being satisfied represents a substantial risk. The downside to this is that either party can withdraw from the date an offer is made right up to contracts exchange. A buyer is able to withdraw should the result of his enquiries or survey be unsatisfactory or he fails to secure satisfactory mortgage finance, whereas the seller can also withdraw if he receives a higher offer.

This will very often be a question of morals and integrity on the part of the seller. However, in the event of a sale by a Personal Representative, Mortgagee in Possession or Trustees acting on behalf of third party beneficiaries, the seller has an obligation to secure the best possible price and a Buyer’s offer will always be at risk until contracts are exchanged.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

My brother-in-law has had his house repossessed. He bought a complete new kitchen less than a year ago which I offered to buy off him, but is he allowed to sell it and let me remove it?

Once a property has been repossessed this will have taken place as a result of a Court Order giving the lender the right to take possession.

If the kitchen had been fully paid for then this – along with the property – falls into the ownership of the lender and can be sold with the property. If the kitchen remained on a Hire Purchase, or other Finance Agreement, then title to the kitchen would remain with the Hire Purchase, or Finance Company, and could be removed by them.

That is why someone buying a repossessed home is not guaranteed ‘good title’ to any items included in the property.

It is, therefore, unlikely you will able to remove the kitchen as this will also not only cause damage to the property, but adversely affect its saleability.

My daughter is in a joint mortgage with a friend she has now fallen out with and wants to sever the connection. The mortgage contract still has another two years to run. Is there any way she can end it early without incurring any expensive penalties?

The likelihood is that the two of them will have bought the house with a Fixed Rate or Tracker mortgage – with penalties for early repayment. Your daughter can only sever the connection by either transferring her interest to the former friend, or a third party who may want to become a joint owner. Or, the former friend could transfer her interest to your daughter, known as a Transfer of Equity.

No alteration to the current arrangements will be possible until the mortgage company has agreed to any transfer. If only one owner is to remain, the lender will need to be satisfied with the earning potential of that sole remaining owner – before releasing the outgoing party. If the house has to be sold then an early repayment penalty may be incurred. Most lenders will not charge an early repayment penalty on a Transfer of Equity, but check first as any penalties can be substantial.

I bought a house about 10 years ago and I have been having a bit of a clear out of all my documents and I cannot find any deeds to the house. In fact I don’t ever remember seeing any?

The Title to your property is likely to be registered at HM Land Registry. The Registry no longer issue formal documents as the information is kept on an electronic register with each property having its own Title Number.

Following completion, therefore, owners are now issued with a Title Information Document – a snap shot of the electronic register at the precise time on which the electronic copy is printed. This is effectively the main Title Document. If there are mortgages registered against the Title, or documents affecting the Title which contain covenants, or restrictions, then copies of these documents are often retained at the Land Registry and their existence mentioned on the register.

If you have a mortgage on the property the lenders only now retain the Title Information Document and the original Mortgage Document leaving you to retain possession of all pre-registration Deeds and Documents and other guarantees and documents relating to the property. Your solicitor will have returned the Title Information Document and Mortgage Deed to the lender and may well have retained the balance of these other documents, either on file, or in safe custody, at their offices.

Alternatively, the solicitors will have sent the balance of these documents to you to keep, and it is imperative you know where these are as the guarantees, planning permissions etc will need to be handed over in the event of resale.

I have received a note from my next door neighbour drawing attention to the fact that the boundary fence between our properties is dilapidated and in need of serious repair. He has offered to carry out the work on my behalf provided I pay. What should I do?

You must first establish who owns the boundary fence. If it is your neighbour’s fence then clearly you should not have to pay. If the fence is yours then the liability for maintaining the fence is yours. If your neighbour has offered to do the work and the cost he’s quoting sounds reasonable, then this would appear a genuine gesture on his part – provided he replaces the fence on a ”like for like” basis. If he’s planning something different then you must be happy with what is being proposed and what it will ultimately look like. Remember, certain types of fencing can look attractive from one side only and in this instance as the fence is yours then presumably the attractive side should be on your side of the fence! If the boundary is a party wall or fence, then the responsibility for its maintenance and cost of its repair should be shared equally between you.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property.

How do you deal with transferring your house to your children while continuing to live in it, in order to avoid having to sell the property should you have to go into care at a later date?

If you are thinking of doing this then you should immediately consult a solicitor as this is a fairly complex issue. Provided property is transferred a substantial time before entering into care – and 12 months would appear to be a minimum period – the asset will no longer be deemed to be yours when assessing your contributions towards accommodation charges in any Local Authority Home. There are, however, Inheritance Tax implications of gifting the property to your children while continuing to live there. If your Estate is unlikely to be a taxable one, the fact that the Inland Revenue will regard your continued occupation of the property rent free as a Reservation of Benefit – and regard the property as yours at the date of your death for Inheritance Tax purposes – will not have any adverse consequences as there will be no Inheritance Tax payable if the value of your Estate is below the relevant threshold.

You should also ensure that your right to continue to occupy is protected once you have given your property away. This should be done by taking a Lease for Life back from your children which will protect you should they want – or be forced – to sell.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property.

In my Tenancy Agreement there is a clause stating that if I wish to terminate the agreement and move out, I will still have to pay my landlord until a new tenant is found. Is this lawful?

All new Tenancy Agreements for a term not exceeding 12 months, but for a minimum period of six months, are now deemed to be Assured Shorthold Tenancies. This means you are committing to a fixed term of a minimum of six months and a maximum of 12 months. Should you wish to terminate the agreement before the end of the fixed term you will usually have to pay rent for the balance of the term of the Tenancy Agreement. If you continue to occupy beyond the fixed term period then the agreement will usually contain terms on which either party can give notice to the other. Provided these notice periods are adhered to then you will be free to leave. Any Tenancy Agreement with a term stating you are required to continue to pay rent until an alternative tenant is found is not only unusual, but would probably be considered to be an Unfair Contract Term. The position should be easily resolved by talking to your solicitor.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property.

My mother gave us money to pay the deposit on our house and we would like to ensure that if we need to sell it she gets her money back before any other unsecured debts are paid. How do we do this? Do we need to tell the Mortgage Company?

The best way to protect your mother’s deposit is to allow her to take a Second Charge over the property to the value of the deposit which she provided to enable you to purchase the same. This will rank second in priority behind your main mortgage – ensuring that in the event of a forced sale your mother will have second call on the net proceeds of sale after the payment of your main mortgage. This will ensure that the claims of any creditors who may have obtained a Judgement against you for any other unsecured debts, will rank third behind your mother and your main mortgage company. But it is important to carefully consider the terms of your main mortgage as some mortgage companies will not authorise the registration of a Second Charge.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property.

There is a small plot of waste land at the side of my house which I would like to buy to extend my plot. I have asked around but no-one seems to know who owns it. How do I find out who the owner is?

This is a very common problem. While the majority of land throughout England and Wales continues to become registered land with details registered at HM Land Registry, numerous pieces and parcels of land (many where ownership simply is not known) remain unregistered. With unknown parcels of waste land it is often difficult to identify the actual owner. You can carry out a search at the Land Registry to establish whether the land is registered. If it is, then identifying the owner is a relatively simple process. If the search shows the land is unregistered, then it is very difficult to establish who the true owner is, particularly if enquiries in the immediate locality prove unsuccessful. You are therefore left with the prospect of having to take steps to claim the land as yours. To do this you must enclose the land within your own property and enjoy uninterrupted occupation of it for up to 15 years before you can claim a Possessory Title at the Land Registry to the land in question. If during this time the true owner lays claim to the land then the Land Registration Act 2003 makes it easier to do so upon production of proof of title – despite the fact you may have occupied the land for the previous 10 years or so.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property.