Emyr Pierce

My partner and I have a joint tenancy agreement on our flat and are both named on the Council Tax bill. He is a full-time student and exempt from paying Council Tax. Should I be entitled to a single person’s discount?

You are entitled to a single occupier discount. Your partner will need to provide a certificate to the local authority confirming he is a full-time student, at which point you will become entitled to the discount which is 25 per cent of your Council Tax bill.

You will only be entitled to that discount while your partner remains a full-time student and once he completes his course and leaves full-time education he will need to inform the Council of his new situation.

I own a property valued at £410,000 in my sole name. I have recently married and am in the process of remortgaging my property to get a better deal. To secure the best deal I need my wife’s salary to be taken into account by the Lender and I intend to transfer the property into our joint names as this will be a requirement of any mortgage in our joint names. My existing mortgage is £295,000 and I am looking to borrow precisely the same amount from the new Lender. I am astounded to find out that my Solicitors have advised that Stamp Duty will be payable on the transfer into our joint names, why is this?

Stamp Duty Land Tax is payable on any consideration payable for an interest in land.
While no money is actually changing hands in this example, there is a substantial consideration being made by your new wife. At the present time the property is in your sole name with you being solely liable for the existing mortgage. What is being proposed is that the new mortgage, albeit for the same amount, will be the responsibility of both of you and in respect of which the property is being transferred into your joint names.

In other words, your wife is receiving one half of your property in return for her becoming liable for one half of the mortgage debt (despite the fact that you will both be jointly and severally liable for the debt in any event). In this instance there is effectively a consideration made by your wife of one half of the mortgage debt in return for her receiving a one half interest in your property.

Sadly, in your case, as your mortgage is substantial, one half of the mortgage debt amounts to £147,500, which is in excess of the Stamp Duty threshold of £125,000 and, accordingly, a Stamp Duty charge of 1% of the consideration (£1,475) will be payable

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.

My partner and I bought a home together two years ago. We got married six weeks ago and I am wondering whether I need to change my name on the house deeds etc. What documents will I need to change.

No, there is no need for you to make any changes unless you particularly want to. The title to the property will no doubt be registered at the Land Registry and all you need to do in the event of a future re-sale is to produce a certified copy of your marriage certificate showing the change in the name of the female spouse from her maiden name by way of proof that the parties are one and the same as those registered on the title.

You can, of course, forward a certified copy of your marriage certificate to the Land Registry, but this will need to be accompanied by a formal application form with which you are not familiar and which you may need to pay a Solicitor to complete on your behalf. Quite frankly, this is a total waste of money and is not essential.

What may be more important, since your marriage, is to review the manner in which you own the property. Had you bought the property as partners, the property may be registered in your joint names as Tenants in Common rather than Joint Tenants in which case you will now need to make Wills should you wish to ensure that the property will definitely pass automatically to the surviving spouse. Indeed, a Will, now that you are married, is something you should consider in any event.

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.

I shall be getting married in five months and we plan to live in a house which was bought for my future husband by his parents. They are suggesting we sign a prenuptial agreement to ensure their investment remains in their family in case we separate. Is this something I should agree to?

Prenuptial Agreements are a little mercenary and can cause suspicion from the outset which is not always good for one’s relationship! On the other hand, the property issue can be simply addressed by your fiancé’s parents taking a charge on the property for the amount that they provided.

However, this will imply that the purchase monies were not a gift and that monies remain owing to your fiancé. This may not be appropriate if it was intended that the property should be a gift from your fiancé’s parents and if this gift had been made some years ago then it may only be a matter of years before the value of the gift falls outside the Estate of your fiancé’s parents and therefore will represent a tax effective lifetime gift of their assets.

If a charge were taken over the property then it is a matter for your fiancé’s parents as to whether they would require that loan to be repaid, but in the event of your separating then it is recorded that the funding for the property came from your fiancé’s parents and that you made no direct contribution to the acquisition of the property.

What your ordinary entitlement would be in any divorce settlement is then entirely down to those criteria that are appropriate in any divorce proceedings.

Having waited 18 months to find a Buyer for my property I have now received three offers in the last few days all at different prices. What should I do?

The rules for dealing with more than one Buyer are strict. There is nothing to stop more than one contract being issued by your Solicitor, but he must make it clear to other prospective buyers that contracts have simultaneously been issued to others.

If you cannot decide between your prospective buyers and you wish to give them all an opportunity to proceed on a “first come first served” basis, then this will amount to a “contract race”. This is hardly ideal as far as a buyer is concerned, but it is the only way that you as the Seller can secure the best possible price from a buyer wanting to proceed at the earliest opportunity.

It will need to be made perfectly clear to all three prospective buyers as to the basis on which you intend to select the successful buyer - such as the first person to be in a position to unconditionally exchange contracts will secure the property.

Any specific requirement as to the payment of a deposit to facilitate such exchange must also be made perfectly clear to all parties to ensure all three buyers have an equal opportunity to secure the property. It is then literally the first person to satisfy the exchange criteria who will secure the property

My mother has recently died. She was the owner of the freehold interest in the property but on receipt of the Title Deeds we note that the original leasehold interest remains in the sole name of my late father who died 10 years ago. What do we need to do?

South Wales has a number of properties that were originally leasehold but as the years have passed occupiers have purchased the freehold interest. It is often the case that on acquiring the freehold the freehold title will be registered separately to avoid having to merge the two interests and pay a higher Land Registry fee. This gives rise to potential difficulties if the property was originally in the sole name of one only of the spouses.

In this case that spouse has since died and the surviving spouse has purchased the freehold interest in her sole name. This leaves the freehold interest in the wife’s name and the leasehold interest in the late husband’s name.

A Grant of Representation will be required for each Estate in order to properly deal with the interests in the property that the respective spouses owned. This will deal with the deceased husband’s leasehold interest in the property. It will not take too long, but will inevitably delay any ongoing sale.

I am buying a new house, but will be abroad on an extended business trip when final contracts are due to signed. What should I do?

You are never sure when contracts are likely to be exchanged and a completion date agreed but, naturally, it is not a good idea to be abroad when you are due to complete.

However, in order to facilitate an exchange of contracts in your absence you can either visit your Solicitor before leaving for your business trip and sign all documentation well in advance - leaving strict instructions as to the basis on which the Solicitor is authorised to proceed in your absence - or you may grant a Lasting Power of Attorney dealing with your Property and Affairs, restricting the authority to the appointed Attorney to simply deal with the signing of all documentation relating to your purchase of your new property.

Unless there are major outstanding items on which your Solicitor will need your specific instructions, or indeed no papers have in fact been received before you go away, then it is normal for you to give your Solicitor strict instructions as to the basis on which you would be happy to proceed.

If you are only buying a property and are in no hurry to move in, then ensure your Solicitor has the relevant amount of money made available to him to allow him to complete on your behalf if you are still abroad.

My father died a widower without leaving a Will. I thought I was his only child but it appears he had two sons by a previous marriage who are making a claim against his Estate. He had no contact with them in more than 40 years. Do they have a claim?

Unfortunately, your father died without making a Will and his spouse had predeceased him. In the absence of a Will he will be deemed to have died Intestate. In an Intestacy, assets will pass in accordance with the Intestacy Rules which is an attempt to anticipate what a Testator would have done had he made a Will. The order of beneficiaries entitled will dictate who is entitled to his Estate.

As he died a widower, but leaving children, then ALL of his children will share his Estate equally. Sadly, despite not having seen anything of his other children for over 40 years they are undoubtedly his children, just as you are. Therefore, all three of you will be entitled to share your father’s Estate equally.

In other words all three of you are entitled under the Intestacy Rules and his two sons need not necessarily make a claim against his Estate as they are absolutely entitled in any event. This is different to two estranged sons who suddenly make a claim against an Estate where there may have been a Will leaving everything to you.

In those circumstances their claim would not succeed unless they could show that they were dependants of your late father and, after no contact in 40 years, this would be impossible to prove. It is examples such as this which emphasises the importance of making Wills - particularly if you have children by a previous marriage or previous relationship.

I live in a shared ownership property to which I would like to fit a solar panel. Do I need to seek permission from the Housing Association who own a share in the house for me to be able to do this?

Housing Associations who own properties on a shared ownership basis with the occupier secure their interest in the property via a charge against the property, which include provisions that mean you are not entitled to carry out alterations to the property without the consent of the Housing Association.

In many cases the Housing Association will own a majority share in the property and will not be willing to allow the occupier to make any alterations to the property which may either prejudice their interest or devalue the property.

You must contact the Housing Association with details of your proposals and they may well approve them - provided their interest in the property is not prejudiced and the proposed alteration does not have an adverse effect on the valuation of the property.

You must retain any written consent given by the Housing Association for this installation as you will be required to hand this over to a prospective purchaser on re-sale.

The tenants in a property I own have not paid the rent for three months and are refusing to leave. Can I legally change the locks on the house when they are out?

The tenants probably occupy the property on the terms of an Assured Shorthold Tenancy. There are anti-eviction laws in existence to prevent landlords from excluding tenants from residential property without having first followed the repossession procedure specified by the Housing Acts.

If your tenants are three months in arrears you are entitled to immediately apply to the Court for an Order for Possession, although the likelihood is that by the time the statutory procedure and timescales are followed the six months terms of the tenancy may well be close to expiring in any event.

However, the court proceedings will also entitle you to obtain a money judgement against the tenant for the arrears, in addition to an Order for Possession of the property. Failure to follow this specified procedure will render you in serious breach of the Anti-Eviction Laws.

You should immediately consult a solicitor who will prepare the appropriate notices of Intention to Issue Possession Proceedings. Until these notices are served on the tenant the strict statutory timescales will not begin.

I am experiencing severe problems with paying my mortgage as my working hours – and salary – have been reduced by half. What can I do to ensure I don’t lose my house?

With increasing unemployment a consequence of the current recession, more and more people will experience difficulties in meeting their mortgage repayments. The critical point to bear in mind is to ensure that you approach your Lender immediately you are experiencing difficulties as there are various options open to both you and them in addressing short-term problems.

Sadly, the majority of people, probably due to the stress of the situation, stick their heads in the sand and do nothing, allowing arrears to build up over a period of months. Inactivity and the reluctance to meet the problem head on will cause more problems than it solves, as your Lender will become sceptical as to your genuine willingness to find re-employment or resolve your financial problems.

By contacting your Lender immediately you can discuss the various options available. Depending on the extent of mortgage involved your Lender may be able to offer you a “payment holiday” period while you find re-employment or get yourself back on your feet. Do not pretend that there isn’t a problem. Meet your problem head on. You may be surprised to hear the various solutions available.

I live in a terraced row of Victorian houses at the back of which is a lane into which we all have doors leading from our back gardens. The lane is being used as a dumping ground. How do I find out who the lane belongs to? The Local Authority says the lane is not their responsibility.

The majority of those lanes are maintained by the Local Authority as part of the adopted highway. However, there are certain instances where these lanes remain private or indeed the ownership of which is unknown.

As with any piece of land in which you are anxious to establish ownership the first step is to make an Index Map Search of the Land Registry. This requires the submission of a plan identifying the lane. The result of this search will clarify whether the title to the land is registered or unregistered. If it is registered title then finding the identity of its owner is simple - obtain an Office Copy of that title, which will specify the name of the proprietor.

If the search reveals the property is unregistered then the problem is very much greater. You could inspect your Title Deeds in order to establish whether yours and the adjoining properties were originally part of an Estate as it is quite probable that the Estate remains entitled to the lane with each property having been sold off with, probably, rights of access from the rear gardens over the same.

If the lane is overgrown then those backing onto the lane should consider the possibility that they could be called upon to contribute towards its maintenance and repair.

My landlord has given his plumber a key to the flat I am renting so he can carry out some modernisation work. Is he allowed to do this without asking me?

The landlord is not allowed to gain access to your flat, or allow others to access the flat, without giving you advanced notice in writing and, ideally, giving you the opportunity to be present. The only exception to this rule is in the event of a genuine emergency when it is commonsense that access is gained in the interests of others.

The landlord should agree a time and a date with you for this visit by the plumber to give you the chance to make arrangements to be there. Failure to do this will amount to a serious breach of the Landlords’ Covenant.

We have sold our house in Newport without using an Estate Agent to somebody we know. What are the next steps? I know that our buyer needs to instruct a solicitor and have a survey done for his mortgage lender, and we need to instruct a solicitor. Is there anything else to be done at this stage?

You need to find an experienced and reputable lawyer to act on your behalf, and often personal recommendation is advisable. Request quotes from various law firms but remember that conveyancing is also a specialist area. Those solicitors with a good reputation in the property field will be structured and geared to drive your transaction forward as soon as possible and at the most competitive price.

If you are in possession of your Title Deeds you will need to supply these to your solicitor to enable him or her to issue draft contract papers. You will also need to complete property information forms and a list of fixtures and fittings detailing items included or available for sale in addition to the purchase price.

It is essential you instruct your lawyers promptly to avoid delay as the buyer’s solicitor is unable to do anything until he is in receipt of draft contract papers. In fact, it is arguable that you should consider your preferred lawyer before your property is sold. He may be able to provide you with impartial and crucial advice before the process starts.

Above all else, be aware of recommendation by third parties based on a referral fee being received as this does not always represent the best advice in view of the financial incentives involved for the referrer.

What does “Demised Premises” mean on the Deeds of my house? Should I be concerned?

“Demised Premises” is a reference to the extent of the land the subject of the deed and which you can expect to occupy or own. The use of the term “demise” usually refers to leasehold property, the subject of a Lease of land, and therefore the “Demised Premises” will represent a full description of the land which you can expect to acquire and which will be the subject of any such Lease.

I am renting an apartment in one of the new developments near Swansea seafront where each resident is provided with a parking space. I don’t drive and want to rent out my space to one of the other tenants who has two cars. Can I do this?

Before you do anything you must consider very carefully the terms of your Lease.
Many leases will contain the right to use a car parking space allocated to the flat rather than a parking space being included in the demised premises.

This is intended to specifically avoid situations where the tenant may assign his garage, or parking space, separately to a third party who may not even live on the development, as this can cause substantial technical legal issues as there will be no legally binding relationship between the landlord of the development and the person who acquires the parking space.

It is probable that the best you can hope for is an informal arrangement with a neighbour, but you must ensure that any such arrangement is authorised by the terms of your Lease.

You are strongly advised to seek the advice of a solicitor before making any such commitment as any breach of your leasehold covenants could ultimately result in the landlord forfeiting your entire Lease, and not just that part which relates to the parking space. If there are separate leases for each of the flat and parking space then your proposals may be more likely to succeed.

Why has my Estate Agent quoted me a figure of costs for conveyancing which is greater than the quote that I have received directly from the same solicitor?

Referral fees. You should always obtain your quotation for the conveyancing work directly from the lawyers of your choice as increasingly you will find it cheaper than that quoted to you through a third party.

Any difference, of course, represents a referral fee - or a fee payable to the third party introducer. There is absolutely no reason why a seller should have to pay a higher total fee for his conveyancing if arranged through an estate agent than he would otherwise have to if he instructed his choice of solicitor direct. This is because the agent is receiving a payment for simply referring the business to their chosen firm of conveyancers.

Specialist property solicitors have for many years adopted highly competitive fixed fee rates which pale into insignificance in comparison with other costs involved in the selling and buying process. To ensure that you only pay the amount actually charged by the solicitor, you should obtain your quotation directly from the solicitor, cutting out these unnecessary additional fees paid to the agent by way of referral fees.

If you have a recommended solicitor, whom your friends or relatives have spoken highly of as a result of their own personal experience, this is the best recommendation you can get and you should approach that firm, or any solicitor of your choice, direct to ensure that you are not paying a penny more than they actually receive for undertaking the work.

We have just bought a property abroad. Do we need to make a separate Will in that country to ensure the property is inherited by our children?

In most European countries the answer would be yes. Your Will would normally deal with the assets owned by you in the country in which the asset is situated. In other words your UK Will only deals with your assets in England and Wales (Scotland has its own legal system).

EU members usually adopt similar rules but you would be well advised to enquire in the country in which your property is situated in order to establish what the laws of that country are in this context.

I am currently suffering serious financial problems. I want to transfer or sell my house to my son who has lived in it for the last 22 years. Could this prevent the property being repossessed?

By transferring the property to your son I presume you mean gifting it – as opposed to selling the property to your son in an arms length transaction at the full market value.

Any transfer to your son for no consideration (a gift) could be deemed to be a deliberate attempt on your part to defraud your creditors under the terms of the Insolvency Acts, and could be overturned by your Trustee in Bankruptcy should you subsequently be declared bankrupt.

If you are in arrears on your mortgage you will not be able to transfer, or gift the property to anyone without the consent of your Lender and this consent will only be forthcoming upon repayment of the amount owed under the mortgage.

In other words, whether you sell to your son, or any third party, will amount to the same thing whereby the Lender will have first call on the proceeds of sale.

My wife and I have made an offer on a house which we want to buy equally. My wife will take out a mortgage while I will pay for half the value in cash. My solicitor has said I cannot be mentioned on the Deeds because of my credit history and I don’t work. How can I protect my cash interest in the property?

This raises a couple of awkward issues. The property must be registered in the name of the person in whose name the mortgage is taken out. If the Lender will not consider you as a joint Borrower then the property must be vested in your wife’s sole name. Usually these situations can be protected by recording the extent of your contribution towards the purchase price in a Declaration of Trust entered into between yourself and your wife.

However, in principle, this Declaration of Trust would prejudice the interest of the Lender as it would be an acknowledgement on your wife’s part that she did not actually provide all the funds, over and above the mortgage advance, towards the purchase price. It will also represent an acknowledgment on her part that you have an interest in the property in view of your financial investment.

A second problem is that the easiest way of securing your investment in the property by taking a second charge over the property will more than likely be prevented by the Restriction contained in your wife’s mortgage preventing the registration of subsequent mortgages without the consent of the first mortgagee. While the first mortgagee will have priority over any interest secured by the second charge, mortgagees are increasingly reluctant to consent to any subsequent charges being registered against properties.

Ultimately, therefore, a Declaration of Trust, or Second Charge, while advisable, may not be possible. However, an equitable charge or, at the very least, some documentary evidence acknowledging your contribution towards the initial purchase price, would be advisable to ensure that at least documentary evidence of your financial input does exist.

I am having the driveway of my house widened which will also mean extending the drop kerb to the road. Will I need to get Planning Permission from the Local Authority to do this?

If you are creating a new vehicle cross-over across the public highway or pavement, then Planning Permission will probably be required, but not in all cases as apparently it depends on the road itself. But you will also require consent of the Local Highways Authority for which a separate application is required and a fee of £87.15.

I own a property in a Conservation Area which has an original outside toilet at the bottom of the garden which has been used for years as a store shed. It is in a very dilapidated state and a danger to my children. I want to demolish it but have I got to get permission to do this?

Conservation Area consent will not be required for such a demolition as it is not usually necessary to obtain Conservation Area consent for the demolition of any building smaller than a double garage. An outside toilet would obviously be a lot smaller than a double garage and accordingly no consent is required to demolish it.

There are, however, exceptions to this rule. If there was a lane leading to it and the back boundary wall could be affected the Local Authority would need to investigate as to whether a separate form of consent would be required under the Planning, Listed Buildings and Conservation Act 1990.

If it was a Listed Building and the outhouse was built at the same time as the main building, or pre 1948, the Local Authority would need to investigate further as to whether consent would be required.

We have lost the Title Deeds to our house. Where would we get duplicates from and how much would this cost?

The loss of Title Deeds is not as much of a problem these days as it used to be. This will, however, depend entirely on whether or not the title to your property is registered.

For example, in the Cardiff area all dealings involving properties since 1974 would have resulted in the need for compulsory registration of that property and if your property has changed ownership since 1974 then the title to it will now be registered.

The appropriate registration number can easily be obtained from the Land Registry by carrying out a search of the Property Index. This is done by inputting the postcode of the property and then identifying the appropriate title. You can then request office copies of that particular title number electronically at a cost of between £10 and £15 depending on whether or not you have an account with the Land Registry.

All property lawyers have accounts with the Land Registry either direct or through their Property Service Providers, and office copy entries can often be obtained at a reduced cost as a result of these arrangements, whereas members of the general public would pay slightly more for this service if requesting copies direct themselves.

The electronic copy of the Register is a snapshot of that Register at the date and time (to the second) that it is supplied. This facility enables solicitors to make up to date searches of the Registers immediately prior to purchases being completed to ensure that there are no last minute entries on the Register which would prejudice a would-be purchaser.

If the property is unregistered then the problem is far greater. This would require a reconstitution of the title which in turn would require Statutory Declarations by way of evidence from the owners and possibly predecessors in title detailing their length of ownership etc and also detailing how the documents had been mislaid.

In such cases the Land Registry would normally only provide a “Possessory Title” unless ownership can be proved beyond any reasonable doubt. If your title is unregistered and you have mislaid the Title Deeds to your property then you must contact a solicitor immediately as this is extremely urgent.

I have been told that the management fee for the first six months of next year on my apartment in Cardiff Bay will increase by around £300. This is on top of the demand I received and paid in August for an overspend payment of £311. Is there no limit to the amount I can be charged by these people?

The additional demand you refer to is presumably the excess Service Charge demand for the previous financial year during which there was an overspend. This either suggests that the budgeted Service Charge levels are inadequate, or there is considerable additional expense being incurred for whatever reason.

You need to request detailed information on the reasons for such excessive charges and an explanation as to why the level of Service Charge budget set is proving inadequate.

It is increasingly a problem with regard to the payment of Service Charges that large management companies are reluctant to provide intimate details in support of their accounts and this has led to a number of tenants finding themselves in a serious conflict situation with their managing agents often resulting in long drawn-out court cases and, in some instances, the managing agents bringing bankruptcy proceedings against tenants who are refusing to pay.

Sadly, it appears that managing agents are reluctant to provide the necessary details requested or indeed answer further queries with regard to the manner in which certain expenditure has been incurred mainly because they are dealing with a number of large developments throughout the country.

This, however, is scant consolation to the individual tenant who is simply required to pay up or face forfeiture or bankruptcy proceedings for refusing to pay. You are strongly advised to seek the advice of your property specialist who will advise you on how reasonable the demand for further payment appears to be, and the correct procedure for disputing the same.

I moved into my new home three weeks ago and have just had a large sycamore tree felled in the back garden as it was making the conservatory very dark. My neighbour has told me that the tree was the subject of a Preservation Order which was news to me. Do I have to tell the Local Authority?

You have placed yourself in a very difficult situation. If you only purchased your property three weeks ago then the fact that you had trees in your garden which were the subject of a Preservation Order should have been made clear to you by your solicitors. The result of your Local Authority search would reveal that the property was subject to a Tree Preservation Order and this would lead your solicitor to identify which tree or trees were involved.

The TPO prevents you from lopping or felling trees the subject of the Order without specific consent from the Local Authority. Felling the tree in its entirety could lead to prosecution and you are strongly advised to contact the Local Authority to advise them of your mistake.

We have found a lovely property to buy where there are no chains, but my solicitor tells me it could still take up to three months to arrange a completion. Why does it take so long and how could we speed up the process?

Unless you are a cash buyer of a vacant property the average period for sale and purchases can range between six and 12 weeks. Without the need to obtain mortgage finance and with suitable co-operation from the sellers’ solicitors the turn-around of documentation can be done within 14-28 days.

If the property has all the valid searches in place then this period could be even shorter. The issues that take up the time in any transaction are the period required to process a mortgage application (between 4-8 weeks) and the period required to obtain up-to-date searches (10 working days).

If the property has structural issues or is semi-derelict then this will have a bearing on your mortgage application and survey and may result in retentions and the need for you to obtain further experts’ reports. Again, more time.

However, in a straightforward purchase of an ordinary property which is vacant with no chains and where you are a cash buyer with the benefit of all up-to-date searches in place, there is no reason why a completion cannot be made in a matter of 14 days.

My girlfriend and I have found a two bedroom apartment to rent, but we have been asked to provide a deposit of £800. How do I protect the money and ensure I get it returned when we eventually move out?

The payment of deposits and their ultimate repayment to the tenant has for many years been a source of difficulties for both landlords and tenants. The deposit is, of course, intended to cover any arrears, or damages caused to the property which the landlord is entitled to retain on termination of the tenancy.

There is also a need to secure this deposit on the part of tenants who previously paid the money to the landlords’ letting agent, who could subsequently go out of business in the absence of any strict rules regulating the holding of monies on the part of a third party tenant.

The Housing Act 2004 introduced Tenancy Deposit Protection for all Assured Shorthold Tenancies (AST) where a deposit is taken. This means letting agents/landlords have to lodge deposit monies with The Deposit Protection Service – ensuring the money is retained securely by an independent third party.

From April 6th 2007, all deposits paid under an AST have had be protected in this way within 14 calendar days of receipt by landlord. All deposits taken by the Landlord/Letting Agent before 6th April 2007 are not subject to the Tenancy Deposit Protection Scheme.

The day we moved into our new house the sellers clearly damaged the banisters and front door during the course of removing their furniture from the property. Can I insist that they pay for the damage?

Any wilful damage caused to a property between exchange and completion will be the responsibility of the seller. However, it is often difficult to prove that this damage is recent, or indeed that it has been caused in the process of the seller removing his furniture from the property.

A dispute can arise if the seller claims that this damage existed at the time of your initial viewing of the property or, more particularly, at the date on which you exchanged contracts and committed yourself to the purchase.

You may well have to call upon the assistance and co-operation of the Selling Agent who may be able to confirm that the damage was recent as he is likely to have conducted previous viewings and be aware of any recent damage.

Ultimately it is your word against your seller’s and you are relying upon your seller being honest. You would be advised to photograph the damage and ask the seller to compensate you for the cost of repairing it.

I came home from work last week to find my landlord in the flat I am renting. He didn’t seem to have a proper reason for being there, but said he had every right to access the flat at any time to check it was being looked after. Is this right?

For reasons of both your own privacy and security your landlord is not entitled to access your rented premises without previous notice – unless it’s an emergency.

The reason he has given you is, therefore, totally inadequate and inappropriate as any request on the part of your landlord to inspect the state and condition of the premises must be made in advance so you can be present when he inspects.

It is also an extremely dangerous thing for your landlord to do as you could easily claim that, having accessed your property, items have been mislaid suggesting that he may have removed some of your personal belongings without your consent.

You should tell your landlord that such conduct will not be tolerated and that he is clearly in breach of his obligations under any tenancy agreement, or lease. Unauthorised access on the part of the landlord can have serious consequences.

I have three credit card debts and a student loan outstanding - and am about to apply for my first mortgage. Would it be more sensible for me to include those debts in the mortgage application so I end up with one loan?

You will be required to disclose any existing debts or loans which you may have in any mortgage application in any event. The mortgage company will also carry out extensive financial checks against you in order to identify the extent of existing loans, or debts, that you may have before deciding to add to these loans by granting you a mortgage.

This is all carried out by your lender in order to establish that you can actually afford to make the mortgage repayments and that you are not over-burdened with existing liabilities which may result in your falling into arrears with any mortgage repayments.

It may well be that as a condition of your mortgage the lender will require you to settle some existing loans, or consolidate them under the one mortgage loan - providing this meets their lending criteria and satisfies any loan to valuation requirements which they may have.

Before you incur any expense in making any mortgage application you should satisfy yourself that you meet the lending criteria and that all existing loans are fully disclosed as your lender will find out about them in any event!

Our house has been on the market for 18 months and we have had several interested potential buyers, but they all say they are put off by the run-down state of the house next door. What can I do to make my neighbour improve the look of his property?

There is little you can do to force a neighbour to take greater care of his or her property, although one remedy is to take advantage of any action available to the Local Authority in respect of any environmental health risks or any nuisance arising from the dilapidated state of the house next door.

Another possibility is to check the title of your property to see whether your property is the subject of any restrictive covenants or regulations which may include an obligation to keep the property in good and tenantable repair, not be a nuisance to your neighbours and to paint the exterior of the property at regular yearly intervals. If it is, then in all probability your neighbour’s property will be subject to the same restrictions.

My ex-girlfriend and I shared a mortgage on a house we bought two years ago. She has now left and I am currently servicing the monthly repayments which I can’t afford. A friend of mine has offered to take on the mortgage with me. Can we do this and, if so, what do we have to do?

This situation will require a Transfer of Equity into the joint names of yourself and your friend from the joint names of yourself and your ex-girlfriend. Simultaneously, the existing mortgage will need to be transferred into the joint names of yourself and your friend, with your ex-girlfriend being released from the existing mortgage.

Start by consulting your Lender in order to obtain confirmation that this is acceptable to them and, if so, your ex-girlfriend will need to agree to the transfer of her interest in the property to your friend in return for your ex-girlfriend being released from her existing obligations under the mortgage – with your friend taking on that liability in her place.

The advantage to your ex-girlfriend is that she will then be free to apply for a new mortgage on any other property, either in her own right or with a new partner, and she will be released from any ongoing liability for the existing mortgage.

Whether her share of the property has any value, known as equity, depends on the current value of the property compared with the amount owing on the mortgage. If there is little between the two figures then I would imagine she would be happy to be released from her obligations under the current mortgage in return for her transferring her interest in the property to your friend.

Please ensure that you are fully aware of the financial consequences of any such proposals and obtain confirmation that if the Lender agrees to the transfer of the existing mortgage that this will not trigger off any Early Repayment Penalty.

I want to buy a brand new house on a development near Newport but as money is so tight I think I will do without an independent survey and rely on the one produced by my Lender. Is that likely to be OK?

The report which you will obtain with your mortgage offer will be a Valuation Report unless you have specifically requested a more comprehensive or Homebuyer’s Survey. There is a third survey which is a full structural survey which, of course, is unnecessary in the case of a brand new property.

In the case of a brand new property the Valuation Report should be sufficient as the new build will be supported by an NHBC 10 Year Guarantee or similar Certificate which covers you during the first 10 years of the property against major structural defects.

A further reason for accepting a Valuation Report in the case of a brand new property is that the property will in most cases be in the course of construction and therefore it would be inappropriate to commission a more comprehensive survey.

In the case of all other properties over 10 years old, I would strongly recommend you get a Homebuyer’s Survey.

I am buying a flat which has 87 years left on the Lease. Is this acceptable or would I be safer if the Lease was longer?

Lease terms can vary substantially. Up until 10-15 years ago long residential leases were generally granted on a 99-year term. However, the increased demand for mortgages and the introduction of mortgage products for longer terms has brought pressure to bear on this length of term.

The problem is their acceptability to Lenders. The general principle is that the Lender will require a term of years left to run on the Lease of at least 30 years beyond the term of the mortgage. With a 30-year mortgage term this results in a minimum term remaining of 60 years.

However, some mortgage products are now granted over even longer periods of say 35-40 years to make them affordable to borrowers. In such cases you will see that a minimum Lease term requirement could be anything up to 70 years.

With a 99-year Lease this problem arises relatively early during the lease term, and the majority of existing long leases have less than this period to run in any event - resulting in the need for an extension of the Lease term from your landlord.

A term of 87 years remaining on your lease is, therefore, more than adequate as this will give you a minimum of 17 years before it becomes an issue with Lenders for mortgage purposes.

My wife and I are looking for a run-down derelict property to renovate ourselves. Estate Agencies do not seem to have these types of properties on their books. How do we go about finding one within a 50-mile radius of Cardiff?

The main problem you have is that you are, of course, competing with builders and tradesmen who are constantly on the look-out for this type of property to add to their portfolios!

In view of the fact that derelict properties are unsuitable for lending purposes these properties are only attractive to a small percentage of the market who can afford to purchase them, often in cash, or by securing the necessary borrowing against their existing property portfolio.

Agencies instructed in the sale of such properties will usually have a list of contacts who they will approach to establish any interest and, in some cases, it may well be that these properties never actually make it on to the open market.

On a positive front, if you are looking to purchase such a property either in cash or on the strength of offering another property as security for a loan, in the current economic climate less “punters” are active in the marketplace due to the fact that lending facilities have been severely restricted with banks tightening their lending terms for property speculators.

For all of these reasons the best place to find such a property may remain at Auction although the risks associated with buying at Auction are increased when dealing with derelict and run down properties.

I have already exchanged contracts on my sale and have found a property to purchase. However I am due to complete my sale in a fortnight. Can I tie in the two transactions?

This will depend entirely on your seller and your Lender. On average a mortgage offer will take four to six weeks from application to issue, but some Lenders are more efficient than others. Provided the funds can be made available it also requires your seller to co-operate and assist you in completing quickly.

Finally, it is a question of paperwork and the legal aspects which, contrary to public opinion, can be done relatively quickly – provided all the other parties involved in the transaction work at the same pace as you and your legal advisors.

Provided the Lender expedites your mortgage application, the sellers’ solicitor is prompt with the issuing of contract papers, and your seller is happy for you to take occupation as soon as you want – then you have a chance!

Of course, if someone can lend you the money required to complete until your mortgage monies come through then you have a real chance.

I bought a new-build plot on a small development in West Wales two years ago. The development is served by a private road which the builders advised would be taken over and adopted by the Local Authority in due course. What is my position?

The responsibility for the maintenance and upkeep of a development road during the construction of the development remains with the developer. The danger is that in the course of development the developer could be made bankrupt, or wound up if a Limited Company.

In such circumstances the road would remain private and the responsibility for maintaining and repairing the same would pass to the individual plot owners – unless the developer had entered into a Section 38 Adoption Agreement under the Highways Act with the Local Authority, in which case the plot owners are protected and the Local Authority will take over the road once the development is completed and the road brought up to the required adoption standard.

In the meantime, the builder remains liable for its maintenance and these agreements are usually supported by a bond entered into with a bank, or insurance company, who guarantee the obligations of the builder should he go into liquidation during the course of the development.

My parents made tax efficient Wills five years ago involving the Severance of their Joint Tenancy. Two years ago they moved to South Wales and my father has since died. How can I find out whether they own their home as Joint Tenants or Tenants in Common.

Critically, if your parents owned their previous property as Tenants in Common following the Severance of their Joint Tenancy at the time of making their Wills, it is of course essential that they also own the South Wales property as Tenants in Common.

Having only recently moved, it is very easy to find out how they own the current property by inspecting the registered titles of the property by obtaining official copies of the Register from the Land Registry.

If your parents own the property as Joint Tenants then there will be no Restriction entered on the Register preventing the disposition of the property by a sole survivor of the two of them.

If the property is owned as Tenants in Common there will be a Restriction entered on the Register preventing the disposition by a sole proprietor. In other words, the surviving spouse alone is unable to sell the property as a buyer will need to obtain the receipt of two Trustees for any purchase monies.

This means that your late father’s Executor will step into your late father’s shoes and sell the property along with your mother in the event of any future sale, or if your mother chooses to continue to live at the property for some years your late father’s share will pass to his Trustees on trust for the residuary beneficiaries, usually the children.

Having exchanged contracts on a house I am buying I now discover there are some tiles missing from the roof and in the recent heavy rain it has caused water damage to the ceiling in one of the bedrooms. Is this now my responsibility, or can I insist on the vendor getting the roof repaired and the damage made good before I move in?”

This all depends on the terms of the Sale Contract. You are entitled to purchase the property in the same condition as existed when you viewed and, in particular, on exchange of contracts. If the seller remains liable for insuring the property then he may be able to claim for the damage on his own insurance.

If the contract specifies you are responsible for insuring the building on exchange of contracts then any such insurable damage would be your responsibility. On the basis that this damage has happened since exchange of contracts - and clearly not caused by the seller - then arguably it is an insured risk and the person responsible for insuring from exchange will be responsible and will have to make a claim under the appropriate policy.

I want to sell my ground floor maisonette which suffers from dreadful noise levels from the flat above. If I don’t declare this at the time of selling, could there be any legal implications for me?

There is an obligation on all sellers to disclose all material facts which may influence a buyer when considering buying your property.

This will of course depend on the nature of certain enquiries raised by a buyer’s solicitor in the buying process, but the standard property information forms which sellers are obliged to complete will usually include an enquiry covering any nuisance experienced by, or complaints made, by the seller.

If a buyer can subsequently show that there was a long history of such nuisance or complaints then it would be very difficult for a seller to deny that it was a fundamental fact which should have been disclosed in the course of the sale.

If you are living in a flat and the noise levels from the first floor maisonette are horrendous then you should immediately draw this to the attention of the landlord. At least you can then disclose that you have done everything you can to address any nuisance – instead of just keeping quiet!

My father and I bought our terraced house together. I had always paid the mortgage on the property which has now been fully repaid and the property will pass to me on my father’s death. However the property remains in our joint names and my father is now 87 and in poor health. Where do I stand if he has to go into a Nursing Home with all the expenses that could bring?

Should your father have to go into a Nursing Home he will be assessed as to his assets in order to establish the contribution that he will be expected to make towards his accommodation. Unfortunately the starting point will be that the property is in your joint names in which case he will be regarded as owning one-half of the property.

One way of addressing this would be to sever the Joint Tenancy and create a Tenancy in Common with you and your father entering into a Declaration of Trust whereby it is acknowledged by you both that due to the substantially greater contribution made by you towards the property, such as repaying the mortgage in full, you owned the property in unequal shares.

This would at least ensure that you secure a greater proportion of the value of the property than would otherwise be regarded as belonging to your father. It is essential that you retain all details and records of the payments that you have made in support of any such Declaration that you own a greater share than your father in the property.

I have seen a house I would really like to buy but it has been empty for years and no-one seems to know who owns it. How do I find out who owns it?

The two main sources of information are the Land Registry and the Local Authority. The Land Registry will only be able to advise you of the Registered Proprietor of the title to the property provided, of course, this property has been registered in the first place.

This will only have taken place if there has been a dealing with the title to the property since the date on which the area became an area of compulsory registration under the Land Registration Act. For example, in the case of Cardiff, this was 1974.

If there has been no dealing with the property since before that date then the title to the property will remain unregistered and there will be no “Register” from which you can identify the current owner.

The other alternative is the Local Authority. The property should be on the Local Authority’s Rating List and someone should be responsible for the payment of rates. If rates are not being paid then someone may well have applied for an exemption. I believe councils do hold a register of properties the ownership of which is genuinely unknown and it might be well worth approaching them.

Finally, try the neighbours – a substantial amount of information can often be gleaned from people living next door.

Some of my fellow tenants in an apartment block in Cardiff Bay have grown sick and tired of the poor service we receive from the Management Company. Repairs are not being done, security is poor and on top of all this we have been asked for an extra payment to finance a shortfall for last year’s expenses. What can we do?

Sadly, with the increase in residential flat developments in marina-type areas such as Cardiff Bay, there is increasing unrest and disquiet with regard to the various management regimes undertaken by large national management companies.

Legislation does allow tenants the right to manage themselves, but this area is extremely complex and will also depend to some extent on the terms of the development Leases and the manner in which the existing Managing Agents were initially appointed.

It is my experience that the large National Management Companies are reluctant to justify expenditures by producing copy receipts etc, as they have so many developments throughout the country they simply do not have the resources or time to justify their own accounts.

This can work conveniently to their advantage and the long-suffering tenant has a very hard battle on his hands to obtain the relevant information or, at the very least, secure proof that this expenditure has been properly incurred.

I would advise you seek the advice of a specialist property solicitor before you take any steps whatsoever.

My neighbour has bought some chickens and a cockerel which he is keeping in the back garden. The garden of my house backs on to his garden and my house is about 50 yards away. The cockerel starts crowing at daybreak and is waking me up every morning. I have complained to the neighbour but he refuses to act. Is there anything I can do?

The remedies available to you will depend on first, whether there is a restriction in the property title documentation restricting the use of your neighbour from keeping animals other than normal domestic pets, and second, whether the Local Authority would uphold any complaint that the noise amounts to a nuisance.

The cockerel may represent a noise nuisance, although only at specific times of the day when it stretches its vocal chords. Such a noise early in the morning may well amount to a nuisance in a suburban residential area.

You should, therefore, check the documents of title to your property and the neighbour’s property to establish whether or not there are any restrictions on the keeping of certain animals. However, your more likely remedy will be via the Local Authority.

I live in a terraced house close to the centre of Cardiff which has had its front garden completely paved over for parking. I don’t have a car but am thinking of renting out the two parking spaces to a local business for its staff. Am I legally entitled to do this? I have a mortgage.

There are many aspects to this scenario that require your careful consideration - the first being that as your property is the subject of a mortgage you would need to obtain the consent of your Lender.

The second issue is whether the frontage of the property is authorised for parking. Any such parking would presumably be authorised insofar as it is ancillary to the use of the property as a private dwelling house. Renting out your frontage on a commercial basis may not be consistent with this authorised use.

Thirdly, you need to be very careful as to the type of agreement entered into with a business. I would suggest that, provided this is authorised, you should consider granting a licence only, and not a lease, as business tenants can secure extensive rights if premises or land is leased to them.

Clearly, there are issues you need to consider very carefully before making any commitment whatsoever to ensure you do not lose the right to use this area in the foreseeable future.

My wife walked out 16 years ago leaving me to bring up our two young children. We have had no contact whatsoever for more than seven years. The house was and still is in our joint names and we are still married. The children have now grown up and I am thinking of selling up but what do I do about my wife’s name still being on the Deeds. Will she have any claim on the proceeds?

Sadly, yes. As the property remains in joint names your wife still has an interest in it. However, this will become a matrimonial issue and be resolved in accordance with the standard principles applying – which will include the contribution made by your wife to the marriage and, in particular, the property.

The fact that you have been left alone to bring up the children for so many years will no doubt be argued on your behalf in any eventual divorce proceedings.

Unless you can agree an amicable settlement with your wife then the property will form part of the joint property which will form part of the divorce proceedings. It is hoped that your wife will realise that her lack of contribution for so long would result in your being entitled to the majority share in the property or, alternatively, your contributions made over the 16 years would be deducted from her one-half share.

You will need to seek specialist advice from a matrimonial lawyer – unless you can reach an amicable settlement – acceptable to the two of you – directly with your wife.

I am due to move house in a few weeks time. The property has had several previous owners and was lately used as an investment property occupied by students. Would it be wise to change the outside door locks as soon as we move in?

This is probably something that very few purchasers actually do as they rely on the integrity of their sellers who themselves will presumably have regarded their own security as paramount.

However, when you think about it you have no idea who may have had access to keys at any time and, while the fact that you are purchasing a former investment property will make this point more obvious, it is technically an issue that should be considered by all buyers.

The answer is, of course, should be that to ensure your security you should always consider changing the locks.

We have had an offer accepted on our house and were due to exchange contracts last week only for our buyer to withdraw suddenly from the sale of our property. We have placed our property back on the market, but are desperate not to lose the property we wish to purchase. Is there anything we can do to convince our vendor not to look for another buyer? Should we take out a Bridging Loan?

Your success in securing the house of your dreams lies entirely in the hands of your seller. If the seller is willing to wait a little longer in the hope that you can find an alternative buyer then you have a chance of rushing through a subsequent sale to a new purchaser and secure the house.

However, if you are under pressure to commit to the purchase while you still have no buyer for your existing property then this can only be done by arranging finance for the full purchase price of the new property leaving you with, effectively, two properties and, probably, two loans.

It is unlikely that any financial institution will look favourably upon providing you with “open bridge” facilities in the current financial climate. This is where the funds are provided for the full purchase price of the new property while your existing property remains unsold, and is a dangerous step as there is no determining when the loan will be repaid.

The simple advice would be – do not consider an “open” Bridging Loan”!

I have finally found a house I wish to buy, the owner of which is keen on buying my own property. If we do a “swap” will I make a substantial saving in Stamp Duty Land Tax?

Sadly the answer is no. It has been many years since the Inland Revenue introduced the rule in which Stamp Duty Land Tax (SDLT) is no longer payable on the “Equality of Exchange” being the term used for the difference between the two sale prices.

Previously, the former Stamp Duty was only payable on the Equality of Exchange, which made exchanges of properties between interested parties a cost-effective and attractive proposition.

When you consider the extent of revenue lost by the Inland Revenue to such transactions this is hardly surprising. A sale of a property at £400,000 would attract tax of £12,000 which, when swapped for a property worth £300,000, the duty of which is £9,000, would have previously resulted in no Stamp Duty payable and a saving of £21,000 as the “equality of exchange” of £100,000 would, of course, have been exempt from Stamp Duty Land Tax.

The current rule, therefore, is that Stamp Duty Land Tax is assessed separately on each property based on the two figures quoted.

I own a property here in Wales and another in France which I want to be able to pass on to my children. Do I need separate Wills in each country to cover each property?

A Will made in each country will deal with the assets owned by you in that particular country. This is the rule predominately in European countries although you need to be very careful with regard to some countries where assets in a foreign country can be deemed to form part of the Estate of the deceased according to his Domicile of Residence.

A well known Court of Appeal case decided that assets held in Nigeria formed part of the estate of a deceased who died in the UK resulting in a huge inheritance tax liability to the Inland Revenue in this country as the law in Nigeria determined that assets in that country would follow the Domicile of Residence, not Domicile of Origin. The deceased was living in the UK so the Nigerian assets were included in the deceased’s UK estate for Inheritance Tax purposes!

EEC countries are consistent in that assets owned in that country are governed by the equivalent Inheritance Tax rules of that country. You, therefore, need to make separate Wills in the both countries in order to deal with your properties at home and abroad.

After almost 16 months of having my house on the market, with not a single viewing, I have decided to change Estate Agents, only to be presented with a bill from the previous Agents for £530 of “expenses”. Are they legally entitled to do this?

This will entirely depend upon the terms of the contract entered into with your original Estate Agent. The majority of agents include in their terms and conditions a specific agreement on the part of the seller to reimburse the agent for incidental expenses, particular advertising expenses, whether or not the property is sold through their agency.

When withdrawing instructions from a selling agent you may well be faced with such expenses, or disbursements, incurred by them during their marketing of your property.

It is increasingly important for you to read carefully the terms and conditions of your appointed agent as these contracts will include such crucial terms as the minimum sole agency selling rights, payments to which the agent is entitled – regardless of whether he is successful in securing a purchaser for the property, and also his entitlement to commission where the ultimate purchaser is initially introduced by the selling agent.

I am interested in buying a property for £255,000 but am concerned about the stamp duty issue. Can I do anything to minimise stamp duty payable?

The price of £255,000.00 is just over the first stamp duty threshold where Stamp Duty Land Tax (SDLT) changes from 1% to 3%. In other words for the extra £5,000 it is costing you an extra 2% on the overall price.

One way around this is to agree a genuine apportionment of the purchase price as to, say £250,000 for the house and £5,000 for fixtures and fittings which are included in the sale. Please note, however, that this apportionment must be entirely genuine and realistic otherwise it amounts to a fraud of the Inland Revenue.

If you can justify the cost of fixtures and fittings to the tune of £5,000 - and there is no benefit to a seller in participating in any potential fraud – then you will pay £2,500 in Stamp Duty, rather than £7,650. That’s a saving of £5,150.

I have just received my Surveyor’s Report on the property I am buying and it has been valued at a lot less than I am paying. Does the owner have to reduce the price to sell the house to me? Or shall I pull out of the purchase?

Very rarely are properties undervalued on survey these days. This will usually be only in cases where the property is suffering from an unidentified defect of which you may not have been aware and the Valuer will quote a valuation for the property in its existing state and condition.

It may well be that the property is worth the purchase price once you have carried out the remedial works, but in such circumstances you will face having to pay the full price plus the cost of remedial works.

If there are essential repairs to be carried out, as highlighted by the survey, then you should re-negotiate with the seller to reduce the price either for the full amount of the cost of the repairs or agree some form of compromise. As with all such negotiations, the seller is not obliged to reduce his price.

Another possible reason for an under valuation is that you place a greater value on the property, due to some unique feature, or its position, than the Valuer. This is entirely a personal choice and if you elect to pay a premium for the property for this reason then this is entirely a matter for you.

Be aware, though, that your Lender will rely on the valuation obtained by its nominated Surveyor and will lend on any percentage of that valuation rather than the purchase price that you may be willing to pay.

I am interested in buying a house with a very large garden which I am thinking of using to build another property to sell. What, if any problems could I be faced with?

Sometimes people see an opportunity to build another property on the land of an existing house. On the face of it, this may look a very tempting proposition, but BEFORE you spend any money on making offers and expensive planning applications you must check the title to ensure there is no covenant on the title which would prevent the construction of another property – regardless of the fact that indemnity insurance may be available.

Even if insurance is available it may prove to be very expensive, or alternatively you may be faced with a substantial payment in order to release the covenant, which could cost anything up to 40 per cent of the potential development value of the land. The message is – see a lawyer right at the outset so he can make all the necessary checks.

I have recently married and would like to add my spouse’s name to the Property Deed of a house I currently own solely. The mortgage is paid, so I would like us to be Joint Owners. Can I do this?

You can transfer a property into joint names by way of a gift at any stage, particularly if the property is mortgage free. The transfer into joint names will be in consideration of your love and affection for your new wife and will represent a “lifetime gift”.

It is a relatively straightforward process and can be completed very quickly and at a relatively nominal cost provided your Title is already registered. If you have an unregistered Title, such a Deed of Gift will give rise to a compulsory first registration at The Land Registry with the Land Registry Fee payable based on the value of the property.

You will need to decide as to the manner in which you own the property jointly; either as Joint Tenants or Tenants in Common. Should you choose to own the property as Joint Tenants then the survivor of you will automatically become sole owner regardless of any Will. If you elect to own as Tenants in Common in equal shares then your respective half interests in the property will be available for each of you to bequeath by way of Will on your deaths.

Your solicitor will be able to advise you on all of these aspects.

I have seen a property for sale in the window of a local Estate Agent. I need to sell my own house first but the seller’s agent is pressurising me to sell my house through him rather than my own appointed agent. I do not wish to lose the house I wish to purchase but have been happy with the service received from my existing agent. What should I do?

This is, of course, somewhat unprofessional but it is a fact of life that if an alternative purchaser is also selling their house through the same agent as the seller then that agent will stand to receive two commissions should that particular chain proceed.

I have to say that estate agents are far more professional these days and are acutely aware of professional standards and would not deliberately try and “steal” another agent’s client.

However, there may be a genuine conflict whereby if two parties are interested in the same property - and one of the prospective buyers is also selling their house with the same agent - then the agent may have a greater professional responsibility to that existing client compared with someone like yourself whose property is currently marketed by another agent.

The final word should be that of the seller who, on the advice of their agent, should choose the buyer who appears in the best position to proceed regardless of through which agent that prospective buyer is selling their property.

If you feel that the agent is not communicating your offer or how well positioned you are to proceed to the seller then you could always contact the seller direct to ensure they are aware.

I put my house on the market with a local agent six months ago. A few people have been to view the property, one of whom is interested but a friend of mine has now expressed an interest directly without approaching the selling agent and has offered the full asking price. Will I have to pay the agent’s fees if I decide to sell independently to my friend?

Your selling agent will be entitled to their full commission if they can establish that the ultimate purchaser was introduced through their agency.

Be aware that this does not necessarily represent a direct approach and can simply mean that the purchaser initially became aware that the property was available for sale having seen the “For Sale” board at the property.

An agent’s “For Sale” board is of course their major marketing tool. You would not necessarily know that a property was for sale unless you saw the board advertising it.

These situations often lead to dispute between seller and agent as, of course, the agent will argue that it was through their marketing of the property that the buyer ultimately identified that it was for sale.

It is for this reason that should any relatives or friends express an interest in your property before you place it in the hands of an agent you must make this clear to them just in case that friend or relative is able to proceed and ultimately purchases the property.

So, unless you can show that once the property is in the hands of an agent, the buyer only became aware of its availability for sale directly from you, then the agent will be entitled to their commission.

We employed a builder to replace our driveway and in digging up the old concrete he has fractured the telephone cable to our home. He says that as the homeowners we are responsible for the bill BT are charging for the repair. Surely this cannot be right?

No, that it isn’t right. Your builder should be insured for such mishaps as fracturing a telephone cable, or worse, such as cutting a power cable, or fracturing a gas main, during the course of his work.

Whether or not the builder is insured is, of course, another matter altogether. If he is not then, as your Agent, he has caused the damage to the property belonging to BT, and ultimately you will be faced with the cost of any repair works. A reputable builder will, of course, be insured against such mishaps.

My next door neighbour has had a new 7 ft fence erected along the boundary of our front gardens. Is this legal? I think there is a limit a height a fence can be erected in a front garden.

You are correct. There is a limit to any wall or fence in front of the building line in any property. Such a wall or fence must not exceed two metres and, in some cases, one metre in height.

In many modern properties the frontages are left “open plan” and any building in front of the Building Line is prohibited. This maintains a modern open plan environment on most new residential estates.

As your neighbour has already erected such a fence then you should contact the planning department as a matter of urgency.

I am interested in a house which is in a Conservation Area and which has a large tree in its front garden, the subject of a Tree Preservation Order. My Surveyor says it is too close to the house. Could I remove it and plant a smaller tree in its place?

You must not do anything to the tree until you have the necessary consent of the local authority. It is an offence to cut down, top, lop, uproot wilfully damage or wilfully destroy a tree without the planning authority’s permission.

There are strict procedures laid down and plenty of literature available. Please see the “Guide to Tree Preservation Procedures” issued by the Welsh Assembly Government and which is available online.

The owner remains responsible for the trees, their condition and any damage they may cause. However, the planning authority’s permission is required before carrying out work on them, unless they are dying, dead or dangerous.

If the tree is causing structural damage then the evidence of your surveyor may result in the planning authority agreeing to its removal with conditions as to the replanting of a suitable replacement.

Our mother has died leaving her three children, all in their 40’s, equal shares in her Estate which includes her house. One of the children is living at the property and does not want to leave, while the other two wish to sell it and share the proceeds. What should we do?

Technically, once the Administration of your mothers’ Estate has been completed, the property should be vested in the names of the three children as Tenants in Common. This means that if one of the children should die, their share will pass in accordance with their Will, or on their Intestacy, and does not automatically pass to the two other remaining children.

Accordingly, all three children are effectively joint owners and if one wishes to occupy, of if he or she does not occupy, does not wish to sell the property, but the other two joint owners wish to sell, then unless agreement can be reached between the three of you, the two who wish to sell may apply to the Court for an Order for Sale.

The Court will make an Order unless there are extreme circumstances justifying that such an Order should not be made. If one of the children continues to occupy the property that child will, of course, be entitled to one third of the property in any event. One solution may be for him or her to purchase the interest of his siblings at a price they all agree.

During the course of the Administration the property will of course be the responsibility of the Executors of your mothers’ Will who will also have a responsibility to ensure that the property is administered in the best interests of all beneficiaries. It would be advisable for a decision to be made regarding the property during the course of the administration to avoid any future dispute and this may also allow an independent Executor to determine objectively a solution which would be in the best interest of all three beneficiaries.

I recently agreed with my next door neighbour that he should replace the boundary fence between our properties. I have given him one half of the cost of the materials as he offered to do the work himself, but as well as erecting the fence he has also chopped down a number of trees in my garden.

This is most unfortunate – and clearly without your authority or consent. It effectively amounts to an act of vandalism to your property. The position is somewhat complicated as you allowed him to access your property to replace the boundary fence, but it would appear that he has simply taken advantage of this opportunity to cut back or destroy the vegetation on your property.

It is understandable that, in repairing or replacing the fence, there may be a need for him to clear or cut back any vegetation which either interfered with, or could possibly cause ongoing damage to, the fence, but to enter onto your property and cut back trees which were clearly within your boundary and not in any way affecting the boundary fence, amounts to a wilful act of vandalism on your neighbour’s part, for which he is technically liable.

Presumably the extent of the damage caused, and how unreasonable this was in the course of replacing the fence will be apparent from any photographs which you should take of your garden and such photographic evidence can then be used in support of any subsequent action which you may be advised to undertake. If necessary, seek the advice of your solicitor.

I have just discovered that the house I bought three years ago has subsidence. We had a full survey carried out before we bought and this was not spotted. I am insured but will have to pay a hefty excess for the repairs. Can I make a claim against anyone for this oversight?

You need to obtain an independent report from a Building Surveyor or Structural Engineer to establish whether or not the problem existed at the time you bought.

A building surveyor will advise as to whether or not your surveyor should have identified any tell-tale signs that should have been picked up in an ordinary Homebuyers or Structural Survey. If the Report is favourable, then you may have a claim against your surveyor for professional negligence.

You should seek the advice of a solicitor specialising in professional negligence who will advise you as to the procedures, the prospects of success and the evidence required to pursue a successful claim. You should also continue to investigate the possibility of the problem being covered by your Building’s Insurance Policy as this may be an easier and more direct way of recovering the cost of the remedial works.

In the event of a successful insurance claim, you may still have the right to claim any uninsured losses direct from your surveyor, such as any excess.

I live in a cul de sac close to a railway station and am constantly having train travellers parking outside my house all day long. Can I do anything about this?

I presume you are living on an adopted highway and the local authority will, therefore, be responsible for any parking restrictions. If members of the public are parking in front of your house inconsiderately, for example, blocking your driveway, then you should contact the local council and ask for the position to be monitored.

It is quite possible the council may then consider introducing parking restrictions in the locality, or private Resident Permit Parking.

The council will act in cases where they feel a nuisance or congestion is created as a result of travellers parking in a private cul de sac, but naturally you have no rights yourself as, of course, these travellers are currently parking on a public highway – and have every right to do so, provided they are not causing an obstruction or parking in breach of local authority regulations.

My friend’s husband walked out on her several months ago to live with someone else. Their home is in her sole name as she paid the mortgage, but can he have any claim on the property? They were married for six years.

Your friend’s husband will have an interest in the property as a result of the property being regarded as joint property of the marriage – regardless of the fact that it previously belonged to the wife.

Your friend’s matrimonial lawyer will advise as to what, if any, interest the husband could claim in the property and this will involve a number of criteria such as contributions to the marriage, length of marriage and other personal circumstances – including to what extent the husband was dependent, if at all, on the wife.

This is predominately a matrimonial issue and will require specialist matrimonial advice which your friend will need to obtain in order to agree a financial settlement with her former husband which will include ownership of the former matrimonial home.

I am considering buying a touring caravan, but the only place I can keep it is in the front garden in full view of the neighbours. Will I need Planning Permission for this?

The first thing you need to establish is whether your property is subject to any restrictive covenant preventing you from placing a caravan on your property. Many properties are subject to restrictions preventing the storing of anything other than domestic vehicles on their properties.

Planning Permission is not mandatory in such circumstances, but you will be well advised to check with the local authority planning department first in order to ensure there is no objection.

If you can fence around the area where the caravan will be stored then this very often helps in appeasing the neighbours, who can see that you are making efforts to consider them by screening what many may regard as an eyesore. As with all potential planning related issues it would be courteous to discuss this with your neighbours to establish that they have no objection to your storing the caravan on your property.

Even if there was a restriction on the title preventing you from doing so, it is less likely to be enforced if you have the support and backing of your neighbours. After all, breaches of covenant are often raised directly as a result of objections received from people living next door.

I own a large plot of land in West Wales which I want to share with my son. Do I need to re-register this or will it be seen by the taxman as a gift?

If you wish to transfer the plot into the joint names of yourself and your son, this is effectively a lifetime gift of one half of the value of the plot. Provided you live for seven years from the date of the gift, then the value of this gift will not be taken into account in the overall value of your Estate for Inheritance Tax purposes on your death.

However, your son will need to be aware of the possible charge to Capital Gains Tax in the event of the value of his one half share in the plot increasing substantially in future years.

In view of the fact that it is a lifetime gift, a transfer into your joint names will not attract Stamp Duty Land Tax even if the value of the one half of the plot exceeds £175,000. The gift by way of Transfer will then be registered by HM Land Registry in your joint names.

My partner and I have made an offer on a house which has been accepted and we would due to exchange contracts next week. He has now said it is too soon for us to live together but I can’t afford to buy on my own. Can we walk away from this, or is it too late?

Fortunately, it is not too late as you may withdraw from any transaction prior to contracts being unconditionally exchanged. Despite you being virtually on the point of exchanging contracts, it is possible for either party to withdraw from the transaction. You are therefore free to withdraw without any obligation to indemnify the seller for any of his abortive costs or for inconvenience caused.

A late withdrawal like this often infuriates the innocent party as they have no recourse to make any claim for the recovery of their abortive costs. All you can do is apologise to the seller for your late withdrawal, which is due to a change in your personal circumstances which are clearly beyond your control.

My wife and I have divorced and finally reached a financial settlement which includes me paying her off a share of our home. How do I remove her name from the house deeds?

If as a result of the financial settlement you have remortgaged the property to help raise the money to pay your ex-wife her share of the home, then the position is relatively simple, as during the process of remortgaging, the property will be transferred from your joint names into your sole name. The former joint mortgage will be repaid out of your new mortgage funds and the property ending up in your sole name.

It is essential that if you are paying, in addition to repayment of your joint mortgage, an additional capital sum to your ex-wife, that the consideration shown in the Transfer into your sole name is the total of the capital amount payable to your ex wife plus her one half share of the existing mortgage debt, which you are, effectively, absorbing.

If the combined total of this exceeds £175,000 then Stamp Duty Land Tax will be payable – unless the settlement is made the subject of a formal Court Order. However, if there were no additional capital payment to be made and you were simply absorbing the existing joint mortgage, then this could be done by way of a Transfer of Equity into your sole name, provided of course the existing Lender was happy to release your ex-wife from the joint mortgage and to transfer the mortgage into your sole name.

If the existing Lender is not prepared to do this, then you may be faced with having to remortgage with another Lender, taking out a new loan in your sole name which would complete simultaneously with the transfer of the property into your sole name.

I have been helping an elderly neighbour with his property/financial affairs over the last few years and he now wants to appoint me as his Attorney in a Lasting Power of Attorney. Should I let his relatives know what is being proposed?

It is a requirement when granting a Lasting Power of Attorney that the document is registered with the Office of the Public Guardian and it is a specific requirement that the Donor’s next of kin are notified. This enables the next of kin to lodge any objections should they object to what is being proposed.

It is, therefore, no longer possible for Lasting Powers of Attorney to exist without the immediate next of kin being notified of the Donor’s intention to register the same with the Office of the Public Guardian.

I am buying a house close to the Parish Church in a lovely Welsh Village. My solicitor tells me I may be asked at some stage to pay for repairs to the church. Is he joking?

Your solicitor is referring to the potential liability of occupiers to contribute towards the cost of repairs to the chancel of the local Parish Church. This has arisen as a result of a high profile case involving the Church of England.

The Church in Wales have formally responded to enquiries on this issue by stating that Chancel Repair Liability in Wales was not brought to an end on disestablishment. The Representative Body holds a certain amount of information, but it is insufficiently complete for them to be able to give a definite reply to any enquiry on potential liability and they advise that anyone having to address this issue may wish to consider whether it is more cost effective to simply seek insurance cover for a potential liability.

Solicitors have for some years advised clients that the likelihood of any contribution is extremely remote and that the decision was a Church of England one in any event and that the issue has not arisen in Wales. However, solicitors now have to carry out a Chancel search in all purchase transactions which may reveal that the property is located within the historical boundary of a tithe district within a parish which may continue to have a potential repair liability.

Unfortunately, there is no legislation clarifying the position and buyers are, therefore, left to decide for themselves as to how remote the likelihood of any liability is likely to be.

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.

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.