Cardiff conveyancing solicitor Archives - Page 3 of 14

Nov 8

What will happen to my parents’ Estate if they go into residential care?

My wife and I are considering selling our home and moving into my elderly parents’ house to look after them. My parents’ Will leaves their Estate to me and my sister but we would buy her share of the house on the death of my parents. How safe are we though if one or both of my parents has to go into residential care and the only asset they have is the house?

If you moved into your parents’ home it would be sensible for your parents to transfer the property into the joint names of themselves and yourselves as this would take advantage of an exemption available to your parents in that they have transferred one-half of their interest in the property to those who also occupy the same.

This could safeguard against the whole of the property being taken to pay for future care fees, as only the half which your parents retained would remain in their ownership and would technically represent the half to which your sister would otherwise have been entitled in the event of your parents’ death.

Should your parents move into care in the meantime then it may be that only the remaining half share in their name would be assessed as evidence could be supplied to show the reason why the property had been transferred into your joint names.

Should your parents die without having to go into care then you would have to buy out the remaining half of the property from your sister as, technically, the half remaining in your parents’ names would pass to your sister on their death as you had already received your share during your parents’ lifetime.

* Emyr Pierce is Managing Director of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contactwww.emyrpierce.co.uk or email law@emyrpierce.co.uk

Nov 8

I’m told I have overvalued my house – can I proceed with the sale?

I have agreed a price for my house with a buyer and thought the sale was going ahead as planned – only to be told that my buyer’s building society surveyor has valued the property at £10,000 under the price we have shaken hands on. Can I insist on my buyer proceeding with the sale?

Surveyors vary rarely undervalue properties but this can arise where the property is of such a unique nature that you are willing to pay over the odds to secure the house of your dreams or the valuer believes the condition of the property in its unimproved state does not justify the price you are prepared to pay.

In this case, the valuation may be below what the buyer has offered to pay. This does not preclude the buyer from proceeding unless he is dependent on securing a mortgage for a high percentage of the purchase price.

Should your house be undervalued by £10,000 by the surveyor and the buyer wishes to borrow 90% of the purchase price, then he will only be able to borrow 90% of the reduced valuation as specified by the valuer. This may result in him being unable to proceed as he is unable to secure sufficient mortgage funds to purchase the property.

If, however, he is borrowing a lower percentage of the purchase price and he is willing to pay over the odds for the property, then this is entirely his prerogative but you cannot insist on him proceeding as of course until contracts are actually exchanged.

Nov 8

How should I handle a dispute about unfinished building work?

We are in dispute with our builder over unfinished work. He has sent a final invoice and is now threatening legal action against us. What should we do?

If you are unhappy with the quality of work carried out by your builder or there are a number of items that need re-doing or are unsatisfactory, then you should obtain the report of a Building Surveyor, who will identify the extent and potential cost of remedial works required to be carried out.

His report may be supported by photographic evidence which can be presented to the builder, or the builder’s legal advisers, with a claim for the total cost of the remedial works identified.

Should your builder instigate proceedings against you for the amount claimed then you will be well positioned to counterclaim or defend the action as you will have already obtained the necessary photographic evidence of the standard of workmanship, an expert’s opinion on the quality of the work carried out and an estimate of the cost of any such remedial work required.

This will enable you to file a counterclaim, or provide the basis on which a settlement can be agreed.

Nov 8

Do I need permission to change my garden into a driveway?

Do I have to get local authority permission to change my front garden into an in-out driveway?

If you are turning a single driveway into an in-out driveway then, by its very definition, this will require two cross-overs over your council-owned pavement, which will need their consent.

You should also check that there are no restrictive covenants affecting the use of the front garden, such as restrictions on using the frontage or garden area for garden purposes only and not for parking any vehicle.

Nov 8

Should I sign a pre-nup before living in my husband’s house?

I am getting married in five months and we plan to live in a house which was bought for my future husband by his parents. They are suggesting we sign a pre-nuptial agreement to ensure their investment remains in their family in case we separate. Is this something I should agree to?

Prenuptial Agreements are a little mercenary and can cause suspicion from the outset which is not always good for one’s relationship! It may be better to simply view it from a basic property ownership point of view as if you were not getting married at all. In those circumstances there are two issues which arise.

If it was a genuine gift to their son then it may be important for Inheritance Tax purposes for this gift to continue in time – particularly if they gifted the property say 5 years ago – as once a period of 7 years has expired since the gift the value of the gift falls outside the Estate of the in-laws in the event of their death. This may, therefore, have substantial tax savings.

The only way that they can ensure that you agree from the outset that you have no intention of claiming any interest in this property is to enter into such a pre-nuptial agreement recording this intention. Your rights as a wife may still afford you certain rights of occupation etc that may benefit you – regardless of any such agreement and you need to seek specialist advice before doing anything at all.

Alternatively, your in-laws could take a charge over the property for the full value of the purchase price, which means they retain an interest in the whole amount that they advanced to enable the property to be bought. However, this will imply that the purchase monies were not a gift from your in-laws.

If they at some time in the future (after you have been married for some considerable time) wish to release that charge for no consideration then at that time it would amount to a gift and the 7 year rule would start to run from that date. Should you separate then the in-laws’ investment is preserved as they still have a charge on the property.

Oct 25

Who will inherit my Estate if I die without making a Will?

Will my dead husband’s children from a previous marriage inherit my Estate if I die without making a Will? I have no children and no living relatives.

Should you die without making a Will then your assets would pass in accordance with the Intestacy Rules.

If your husband was still alive then he would inherit the first £250,000 of your Estate if you have surviving children and £450,000 if you do not, which could, in turn, make its way to his children from a previous marriage in the event of his subsequent death.

On the basis that he has predeceased you then your assets will pass in accordance with the remainder of the Intestacy Rules.

Should you have no living relatives whatsoever then your Estate would pass to the Crown. If you are single or widowed, have no living relatives to include parents, children, brothers, sisters, half-brothers or half-sisters, nephews or nieces, then there is a great risk that your Estate will pass to the Crown.

It is, therefore, essential that you make a Will – even if it is to leave your assets to Charity, or your close or good friends.

Oct 25

When does property become subject of the lifetime gift exemption?

If my father gifted his house to me, how long would he need to live for to ensure the taxman could not claim back taxes between the gift date and death?

A lifetime gift more than seven years before the death of the donor will usually be the subject of the lifetime gift exemption. If this was a gift of money or any other asset, once the seven years had elapsed from the date of the gift then the asset would no longer form part of your father’s Estate in the event of his subsequent death.

However, with houses it is slightly more complicated in that you must beware of the “Reservation of Benefit Rule” whereby the Revenue will regard your father as having reserved an interest in the asset which he has given away, as he will continue to live in the property, without paying any commercial rent to you, the new owner.

In such circumstances the effect of the Reservation of Benefit Rule is that the Revenue will regard your father as having reserved an interest in the asset which he had previously gifted to you, the consequence of which will be that, for tax purposes, the Revenue will include the value of the property at the date of your father’s death in the overall value of his Estate.

Should your father’s Estate, inclusive of the value of the house, be below the Inheritance Tax threshold, then his gift will not have any adverse effect on the tax position as even if the value of the property is written back into his Estate, it will not be of sufficient value to result in any Inheritance Tax being payable.

If, on the other hand, the property is of substantial value, what may appear to be a substantial saving in Inheritance Tax as a result of the gift may not necessarily be available despite his lifetime gift should such gift fall foul of the “Reservation of Benefit Rule” .

Oct 25

My father held leasehold interest but my mother held freehold interest – what happens now?

My mother has recently died. She was the owner of the freehold interest in the property but on receipt of the Title Deeds we note that the original leasehold interest remains in the sole name of my late father who died 10 years ago. What do we need to do?

South Wales has a number of properties that were originally leasehold but as the years have passed occupiers have purchased the freehold interest.

It is often the case that on acquiring the freehold the freehold title will be registered separately to avoid having to merge the two interests and pay a higher Land Registry fee. This gives rise to potential difficulties if the property was originally in the sole name of one only of the spouses.

In this case that spouse has since died and the surviving spouse has purchased the freehold interest in her sole name. This leaves the freehold interest in the wife’s name and the leasehold interest in the late husband’s name.

A Grant of Representation will be required for each Estate in order to properly deal with the interests in the property that the respective spouses owned. This will deal with the deceased husband’s leasehold interest in the property. It will not take too long, but will inevitably delay any on-going sale.

It may be that the executors of each spouse’s Will may be the same and accordingly a Grant of Representation to each Estate can be obtained by the same individual.

Oct 1

Do I need permission to fit a solar panel to a shared ownership property?

I live in a shared ownership property to which I would like to fit a solar panel. Do I need to seek permission from the Housing Association who own a share in the house for me to be able to do this?

Housing Associations who own properties on a shared ownership basis with the occupier secure their interest in the property via a charge against the property, which include provisions that mean you are not entitled to carry out alterations to the property without the consent of the Housing Association.

In many cases the Housing Association will own a majority share in the property and will not be willing to allow the occupier to make any alterations to the property which may either prejudice their interest or devalue the property.

You must contact the Housing Association with details of your proposals and they may well approve them – provided their interest in the property is not prejudiced and the proposed alteration does not have an adverse effect on the valuation of the property. You must retain any written consent given by the Housing Association for this installation as you will be required to hand this over to a prospective purchaser on re-sale.

Please be aware that your mortgage company may also be very concerned about any formal solar panel lease agreement to be entered into with the suppliers as there are strict rules governing the type of such lease agreements that are acceptable to Lenders. Both the Housing Association and your Lender may therefore have strong objections to your proposals.

Oct 1

How can I evict a tenant from a property I own?

How can I evict a tenant from a property I own in Brecon? He is not paying his rent and not allowing the Estate Agent to show people around the property.

Presuming your tenant is occupying the property under the terms of an Assured Shorthold Tenancy for a fixed period of at least six months and not more than 12 months, then Possession Proceedings can be started against him if he is two months in arrears with his rent and is clearly in breach of other covenants such as refusing access to your Selling Agent to market the property provided of course your tenancy agreement covers this point.

The process can take some weeks but you must follow the procedure strictly in order to avoid falling foul of the Anti Eviction Laws.

A Notice of Intending to Issue Possession Proceedings is initially served on the tenant and an application then submitted to the Court. The procedure can effectively give the tenant a further six weeks before he has to vacate, which then leaves you with the ultimate problem of having to pursue the tenant for outstanding rent.

Consult a solicitor immediately to ensure the procedure is started without further delay.