News Archives - Page 16 of 18

Jul 18

Shared driveways – are they a property headache?

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

Jul 18

Looking after children’s interest after remarrying

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.

Jul 11

Should I check the central heating system?

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.

Jul 11

I want to evict tenant who has not paid the rent

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.

Jul 11

Can I sell off part of my garden to a neighbour?

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.

Jul 4

Will ill health put house sale on hold?

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.

Jul 4

Can we force out sellers – to move in?

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.

Jul 4

Public sewer runs through the back garden

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.

Jun 27

Are carpets and curtains included in house sale?

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

Jun 27

House gift could be overturned by insolvency

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.