Emyr Pierce

Professional Legal Services | Cardiff

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Damage to new home is tough to prove

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.

Landlord has no right to access your flat

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.

Should I wrap up all debts in first mortgage?

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!

Next door’s house is putting off buyers

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.

Friend wants to takeover shared mortgage

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.

Lender’s survey should cover new-build

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.

Flat has 87 years left on lease

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.

Try an Auction if you’re ripe for renovation

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.

Tieing in transactions all depends on timing

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.

Will private road be adopted by local council?

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.