Emyr Pierce

Professional Legal Services | Cardiff

Cardiff: 029 2061 6002

You are here: Home / Archives for Cardiff conveyancing solicitor

Will independent sale mean no agent’s fee?

I put my house on the market with a local agent six months ago. A few people have been to view the property, one of whom is interested but a friend of mine has now expressed an interest directly without approaching the selling agent and has offered the full asking price. Will I have to pay the agent’s fees if I decide to sell independently to my friend?

Your selling agent will be entitled to their full commission if they can establish that the ultimate purchaser was introduced through their agency.

Be aware that this does not necessarily represent a direct approach and can simply mean that the purchaser initially became aware that the property was available for sale having seen the “For Sale” board at the property.

An agent’s “For Sale” board is of course their major marketing tool. You would not necessarily know that a property was for sale unless you saw the board advertising it.

These situations often lead to dispute between seller and agent as, of course, the agent will argue that it was through their marketing of the property that the buyer ultimately identified that it was for sale.

It is for this reason that should any relatives or friends express an interest in your property before you place it in the hands of an agent you must make this clear to them just in case that friend or relative is able to proceed and ultimately purchases the property.

So, unless you can show that once the property is in the hands of an agent, the buyer only became aware of its availability for sale directly from you, then the agent will be entitled to their commission.

Builder has cut us off!

We employed a builder to replace our driveway and in digging up the old concrete he has fractured the telephone cable to our home. He says that as the homeowners we are responsible for the bill BT are charging for the repair. Surely this cannot be right?

No, that it isn’t right. Your builder should be insured for such mishaps as fracturing a telephone cable, or worse, such as cutting a power cable, or fracturing a gas main, during the course of his work.

Whether or not the builder is insured is, of course, another matter altogether. If he is not then, as your Agent, he has caused the damage to the property belonging to BT, and ultimately you will be faced with the cost of any repair works. A reputable builder will, of course, be insured against such mishaps.

Front garden fence is just the limit

My next door neighbour has had a new 7 ft fence erected along the boundary of our front gardens. Is this legal? I think there is a limit a height a fence can be erected in a front garden.

You are correct. There is a limit to any wall or fence in front of the building line in any property. Such a wall or fence must not exceed two metres and, in some cases, one metre in height.

In many modern properties the frontages are left “open plan” and any building in front of the Building Line is prohibited. This maintains a modern open plan environment on most new residential estates.

As your neighbour has already erected such a fence then you should contact the planning department as a matter of urgency.

Buyer, spare that tree!

I am interested in a house which is in a Conservation Area and which has a large tree in its front garden, the subject of a Tree Preservation Order. My Surveyor says it is too close to the house. Could I remove it and plant a smaller tree in its place?

You must not do anything to the tree until you have the necessary consent of the local authority. It is an offence to cut down, top, lop, uproot wilfully damage or wilfully destroy a tree without the planning authority’s permission.

There are strict procedures laid down and plenty of literature available. Please see the “Guide to Tree Preservation Procedures” issued by the Welsh Assembly Government and which is available online.

The owner remains responsible for the trees, their condition and any damage they may cause. However, the planning authority’s permission is required before carrying out work on them, unless they are dying, dead or dangerous.

If the tree is causing structural damage then the evidence of your surveyor may result in the planning authority agreeing to its removal with conditions as to the replanting of a suitable replacement.

Sharing mother’s Estate fairly among three

Our mother has died leaving her three children, all in their 40’s, equal shares in her Estate which includes her house. One of the children is living at the property and does not want to leave, while the other two wish to sell it and share the proceeds. What should we do?

Technically, once the Administration of your mothers’ Estate has been completed, the property should be vested in the names of the three children as Tenants in Common. This means that if one of the children should die, their share will pass in accordance with their Will, or on their Intestacy, and does not automatically pass to the two other remaining children.

Accordingly, all three children are effectively joint owners and if one wishes to occupy, of if he or she does not occupy, does not wish to sell the property, but the other two joint owners wish to sell, then unless agreement can be reached between the three of you, the two who wish to sell may apply to the Court for an Order for Sale.

The Court will make an Order unless there are extreme circumstances justifying that such an Order should not be made. If one of the children continues to occupy the property that child will, of course, be entitled to one third of the property in any event. One solution may be for him or her to purchase the interest of his siblings at a price they all agree.

During the course of the Administration the property will of course be the responsibility of the Executors of your mothers’ Will who will also have a responsibility to ensure that the property is administered in the best interests of all beneficiaries. It would be advisable for a decision to be made regarding the property during the course of the administration to avoid any future dispute and this may also allow an independent Executor to determine objectively a solution which would be in the best interest of all three beneficiaries.

Neighbour cut down trees without permission

I recently agreed with my next door neighbour that he should replace the boundary fence between our properties. I have given him one half of the cost of the materials as he offered to do the work himself, but as well as erecting the fence he has also chopped down a number of trees in my garden.

This is most unfortunate – and clearly without your authority or consent. It effectively amounts to an act of vandalism to your property. The position is somewhat complicated as you allowed him to access your property to replace the boundary fence, but it would appear that he has simply taken advantage of this opportunity to cut back or destroy the vegetation on your property.

It is understandable that, in repairing or replacing the fence, there may be a need for him to clear or cut back any vegetation which either interfered with, or could possibly cause ongoing damage to, the fence, but to enter onto your property and cut back trees which were clearly within your boundary and not in any way affecting the boundary fence, amounts to a wilful act of vandalism on your neighbour’s part, for which he is technically liable.

Presumably the extent of the damage caused, and how unreasonable this was in the course of replacing the fence will be apparent from any photographs which you should take of your garden and such photographic evidence can then be used in support of any subsequent action which you may be advised to undertake. If necessary, seek the advice of your solicitor.

Home is now subsiding – despite a full survey

I have just discovered that the house I bought three years ago has subsidence. We had a full survey carried out before we bought and this was not spotted. I am insured but will have to pay a hefty excess for the repairs. Can I make a claim against anyone for this oversight?

You need to obtain an independent report from a Building Surveyor or Structural Engineer to establish whether or not the problem existed at the time you bought.

A building surveyor will advise as to whether or not your surveyor should have identified any tell-tale signs that should have been picked up in an ordinary Homebuyers or Structural Survey. If the Report is favourable, then you may have a claim against your surveyor for professional negligence.

You should seek the advice of a solicitor specialising in professional negligence who will advise you as to the procedures, the prospects of success and the evidence required to pursue a successful claim. You should also continue to investigate the possibility of the problem being covered by your Building’s Insurance Policy as this may be an easier and more direct way of recovering the cost of the remedial works.

In the event of a successful insurance claim, you may still have the right to claim any uninsured losses direct from your surveyor, such as any excess.

Can train parkers be stopped in their tracks?

I live in a cul de sac close to a railway station and am constantly having train travellers parking outside my house all day long. Can I do anything about this?

I presume you are living on an adopted highway and the local authority will, therefore, be responsible for any parking restrictions. If members of the public are parking in front of your house inconsiderately, for example, blocking your driveway, then you should contact the local council and ask for the position to be monitored.

It is quite possible the council may then consider introducing parking restrictions in the locality, or private Resident Permit Parking.

The council will act in cases where they feel a nuisance or congestion is created as a result of travellers parking in a private cul de sac, but naturally you have no rights yourself as, of course, these travellers are currently parking on a public highway – and have every right to do so, provided they are not causing an obstruction or parking in breach of local authority regulations.

Can ex-husband make a claim on her house?

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 predominately 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 ownership of the former matrimonial home.

Will garden caravan need planning permission?

I am considering buying a touring caravan, but the only place I can keep it is in the front garden in full view of the neighbours. Will I need Planning Permission for this?

The first thing you need to establish is whether your property is subject to any restrictive covenant preventing you from placing a caravan on your property. Many properties are subject to restrictions preventing the storing of anything other than domestic vehicles on their properties.

Planning Permission is not mandatory in such circumstances, but you will be well advised to check with the local authority planning department first in order to ensure there is no objection.

If you can fence around the area where the caravan will be stored then this very often helps in appeasing the neighbours, who can see that you are making efforts to consider them by screening what many may regard as an eyesore. As with all potential planning related issues it would be courteous to discuss this with your neighbours to establish that they have no objection to your storing the caravan on your property.

Even if there was a restriction on the title preventing you from doing so, it is less likely to be enforced if you have the support and backing of your neighbours. After all, breaches of covenant are often raised directly as a result of objections received from people living next door.