News Archives - Page 2 of 18

May 27

How do I remove my ex-wife from my house deeds?

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 with your ex-wife being released from her obligations under the existing mortgage.

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. However, if there is no additional capital payment to be made and you are simply absorbing the existing joint mortgage, then this could be dealt with by way of a Transfer of Equity into your sole name.

May 27

Where are the deeds to my house?

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 issues 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. If they have been mislaid or their whereabouts unknown then you will have to pay for copies or duplicates.

May 19

Could another buyer beat me to it?

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 which only takes place once the buyer’s solicitor is satisfied with the results of searches, their inquiries on title and the buyer has received a satisfactory mortgage offer. Proceeding before any of these issues have been satisfied represents a substantial risk and isn’t possible in any event if a mortgage is involved as the lender will insist on all of these preliminary matters being satisfactory.

Accordingly, either party can withdraw at any time between the date an offer is made and the date when contracts are exchanged. This enables a buyer to withdraw should the result of his enquiries or survey be unsatisfactory or he fails to secure satisfactory mortgage finance, while the seller can also withdraw should he receive a higher offer. This will very often be a question of morals and integrity on the part of the seller.

May 19

Does my friend’s ex-husband have any claim on her property?

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 predominantly 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 any interest in the former matrimonial home.

May 12

Should I become my neighbour’s Attorney?

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 specific requirement when granting a Lasting Power of Attorney that the document is registered with the Office of the Public Guardian and it is a further specific requirement that the Donor nominates a “person to be told” who is notified of the Donor’s intention to register the Lasting Power of Attorney in your favour.

This person should ideally be the Donor’s next of kin or someone who knows the Donor well and would be likely to object to the registration of the LPA if they felt that the appointment of the Attorney was, for whatever reason, inappropriate. This enables the “person to be told” the opportunity to lodge an objection to the registration of the LPA within five weeks of such notification.

It is not, therefore, necessary for the next of kin to be notified as it will depend on whom the Donor chooses to notify by way of his selected “people to be told”. It is always advisable to keep relatives informed of such proposals, particularly if you are not a member of the family, in order to avoid any misplaced allegations regarding your motives.

May 12

Do I need to tell buyers about my house’s history?

I have decided to sell my house which was the scene of a violent and tragic incident before I moved in 12 years ago and which attracted a lot of media attention at the time. Is this something I need to declare to potential buyers?

There is an obligation on all sellers to disclose all information about the property which is within their knowledge. This has been the subject of extensive case law which has established that substantial damages may be awarded to victims of misrepresentation where this can be shown to have an adverse effect on the valuation of the property, or its saleability.

While sellers may choose to rely on the concept of “caveat emptor” or “let the buyer beware”, it is now an established principle that sellers are obliged to disclose all relevant details relating to the property which are within their knowledge. This can range from the existence of any structural issues such as dry rot or damp, to a long-standing neighbour dispute.

Damages were assessed at £67,000.00 in 2008 following a failure on the part of a seller to disclose the existence of an ongoing dispute with a neighbour. Please also note that your Solicitor is also under a duty to disclose information of which he is aware and may have to refuse to accept instructions from a client who is is unwilling for such information to be disclosed.

May 8

Is the fence mine or my neighbours?

I have just moved into a new property, but how do I know if a fence is mine or the neighbours? I’ve looked among the title deeds and there is nothing obvious marked on any conveyancing plans.

The majority of properties do not actually have the ownership of boundaries designated. It is also a myth, contrary to some belief, that it is not always the left or right hand boundary that belongs to the property. The ownership will usually be shown on the original Conveyance, Lease or Transfer plan by inward ‘T-marks’. These will depend on where the development starts, and the property on the end can often be responsible for all the boundaries. If you back on to nothing then the rear boundary will always be yours.

If a property is split into two, the responsibility for maintaining and repairing the new dividing boundary will usually be allocated to the owner of the property being sold off as this is determined by the person selling off that part. In the event of there being no plan which identifies the ownership of boundaries, as in the majority of cases, then the boundaries separating each property are deemed to be shared or “party” boundaries. Those boundaries which do not adjoin another property (such as the rear boundary backing on to a lane or the front low wall of a terraced property) will always be the responsibility of that property.

May 8

Is my neighbour allowed to keep a goat in his garden?

My next-door neighbour has just bought a goat which he plans to keep in the back garden to keep his weeds down. Is he allowed to do this in a residential community?

Some occupiers do have somewhat unusual pets such as sheep and pigs and keeping such animals as pets does have its risks. The majority of properties are subject to restrictive covenants affecting their use. The most popular being the ‘residential dwelling house only’ restriction. But a close second is the covenant not to cause a nuisance or annoyance to adjoining occupiers.

While in the case of older properties there is rarely a covenant against keeping non-domestic animals as pets, newer properties, particularly on new developments, are usually subject to such a restriction. It would, therefore, come down to a question of nuisance to your neighbours, and there could of course be other Public Health Act issues (such as smell) with which you would need to be aware.

Again, these would only become an issue in the event of a complaint in which case it is anticipated that such a complaint would, in the main, be justified! On the other hand for many years a much-loved resident of my local community in Rhiwbina, Cardiff, was a pet sheep. He was a favourite with the locals – but clearly didn’t eat any of the plants in their gardens!

Jan 27

How can I get the water meter removed?

My father had a water meter installed last November on trial for 12 months. He lived on his own and died at the end of January. My sister is now in the process of buying the house and wants the meter removed as she is a family of five and it could prove to be a more expensive way of paying for water. However the Water Authority refused to take it out as she was not living there at the time even though the year’s trial has not ended.

I am not familiar with the terms and conditions relating to any such trial or indeed that the Water Authorities offered such a trial period.

Surely in the event of your father having passed away during the trial period it would be in order for the Executors on behalf of the Estate of your late father to cancel the arrangement if it was a genuine “trial” for a period of 12 months and this period has yet to determine.

The problem would be avoided if the Executors gave the Water Authority notice prior to your sister purchasing the property from the Estate. Once the property is sold as a “metered” property it is too late to ask for the meter to be removed at no cost.

* Emyr Pierce is Managing Director 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

Jan 27

Can I run my business from home?

I am planning to launch my own business and want to run it from home to save on business costs. Are there any rules about running a business from home in a residential area?

The main concern would be a restrictive covenant which often exists in the case of residential property preventing the property from being used for any business use. Older covenants give exceptions for professional use such as that of doctors, accountants and solicitors. Increasingly people are working from home these days and many people work from home while receiving instructions via the Internet.

This would not constitute a breach of covenant as the whole intention of the covenant is to prevent a residential property being used for any industrial or business use, such as repairing people’s cars on your drive or running a carpet business from your garage which doubles up as some form of warehouse!

My advice to clients is that if the anticipated business use is either unknown to your neighbours or does not in any way impact on their enjoyment of their adjoining properties for residential use then your use is unlikely to amount to a breach of the covenant.

For example, an Area Salesman who receives instructions via the Internet would technically run his business from home but this would have no bearing on the residential use or the enjoyment of any adjoining occupier and would certainly not amount to a nuisance or in my view a breach of such a covenant, unlike someone who was operating as a music teacher teaching his pupils to play the trombone from his home which would probably cause a nuisance and annoyance to his neighbours and make them more likely to object and draw this to the attention of those who have the benefit of such covenant – such as the original developer or previous estate land owner.