Emyr Pierce

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My neighbour wants to repair our boundary fence

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.

Transferring your house to your children

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.

Terminating Tenancy Agreements

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

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

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

Second Charges over properties

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.

Finding the owner of a plot of land

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.

Separation and the mortgage

My husband and I are separating. Is it possible for my son to take over his share of the mortgage?

Whether the property and mortgage is transferred to one spouse and a new partner, or a spouse and one of the children, is entirely dependant on this being acceptable to the mortgage company. The property may be transferred from the joint names of you and your husband to you and your son – provided the lender is satisfied their security will not be prejudiced by releasing your husband from the mortgage contract, with your son taking over. It will depend on how much the son is earning and whether his salary will match or exceed the existing earning potential of your husband. It is unlikely that your son will take over his father’s share of the mortgage obligations without simultaneously receiving a transfer of his share in the property as, of course, the lender will not consider a transfer into your name while releasing your husband from the mortgage contract as they would be limiting their security. The only other proposal which may prove acceptable to the lender is where the property is transferred into your sole name with your son guaranteeing the whole mortgage, as long as he is willing and has the wherewithal to do this.

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