Emyr Pierce

Professional Legal Services | Cardiff

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Is separate Will required for home abroad?

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.

Will sale to son stop home repossession?

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.

Protecting cash interest in home buy

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.

Will dropped kerb require permission?

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.

Demolition quandry in a Conservation Area

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.

At a loss at lost Title Deeds

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.

Management fee is on the rise

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.

Woodman, spare that protected tree

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.

Speeding up house buy completion

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.

Tenants’ deposit should be protected

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.