Easement of access Archives

Aug 19

Can I rent out the parking space which came with my apartment?

I own an apartment in one of the new developments in Cardiff Bay where each resident is provided with a parking space. I don’t drive and want to rent out my space to one of the other tenants who has two cars. Can I do this?

Before you do anything you must consider very carefully the terms of your Lease. Many leases will contain the right to use a car parking space allocated to the flat rather than a parking space being included in the demised premises.

This is intended to specifically avoid situations where the tenant may assign his garage, or parking space, separately to a third party who may not even live on the development, as this can cause substantial technical legal issues as there will be no legally binding relationship between the landlord of the development and the person who acquires the parking space.

It is probable that the best you can hope for is an informal arrangement with a neighbour, but you must ensure that any such arrangement is authorised by the terms of your Lease.

You are strongly advised to seek the advice of a solicitor before making any such commitment as any breach of your leasehold covenants could ultimately result in the landlord forfeiting your entire Lease, and not just that part which relates to the parking space.

If there are separate leases for each of the flat and parking space then your proposals may be more likely to succeed.

* 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

Aug 19

Is a Will valid if it is not signed?

My wife’s uncle has recently died. He intended to leave a Will and had left a piece of paper in his writing desk with details of what he wanted to happen to his Estate, but while the draft was dated it was not signed. He was childless and his parents and siblings are deceased. Would this draft act as his Will?

No. For a Will to be valid it must be signed by the deceased, who must sign in the presence of two independent witnesses, who themselves must also sign in the presence of the Testator (person making the Will) and both witnesses must state his or her name, address and occupation. The Will must then be dated with the date of signature of all parties.

A Will must also appoint individuals to administer the Estate, called Executors. The piece of paper in this case may represent an expression of wishes and, while dated, it was not signed and therefore has no validity whatsoever.

In the absence of a valid Will, the person making the Will will be deemed to have died Intestate and the order in which beneficiaries are entitled to share his Estate would be in accordance with the Intestacy Rules. On the basis that the deceased was widowed and his parents and siblings had predeceased him, and he had no children, this would result in nephews and nieces being entitled to the Estate.

Accordingly, your wife, as a niece of the deceased, may well be entitled to a share in her late uncle’s Estate.

Aug 19

Can I choose my own conveyancing solicitor?

I put down a deposit on a brand new property on a housing development and the developers are insisting I use the conveyancing solicitors that they recommend. Surely I can choose my own solicitor?

Sadly, this is commonly the case, as developers inevitably select their “favoured” solicitors for whatever reason. It remains an important principle in the buying and selling process in this country that all purchasers have a free choice of whom they wish to represent them in the important conveyancing process.

You have every right to choose your own solicitor and usually the reasons given for instructing the developer’s choice of solicitor will be somewhat debatable such as “they are familiar with the development and will therefore not raise unnecessary enquiries”, or “they have acted on a number of plots and therefore know the development well and can deal with the matter more quickly than a solicitor who is unfamiliar with the development”.

A buyer must be satisfied that he or she is instructing someone who will act purely in their best interests, promptly and diligently, and has the necessary expertise and experience to understand all types of property development, and the buyers must be sure that their choice of solicitor is going to give them independent advice.

Any specialist property solicitor will have the necessary experience to ensure that your interest will be protected and it is important that the public has a completely free and unfettered choice of legal representation. You are free to instruct anyone you wish to act for you.

Nov 16

What do I need to do to gain nearby water supply access?

I have found a plot of land on which to build a house but the closest water supply is on the other side of a neighbouring property. How do I gain access to that water supply?

You will require a formal legal agreement called an Easement which documents your legal right to the passage of your water supply through the adjoining property and its connection into the existing main.

This document will also grant you appropriate rights of access on to the adjoining property to maintain the water pipe leading from your property, across your neighbour’s land to the point of connection to the existing supply and will contain specific obligations on you to make good any damage caused to the adjoining property from your accessing the pipeline.

The right in the first instance may only be granted in return for a payment or consideration for the grant and will also include an obligation on your part to contribute to the ongoing costs of maintaining and repairing that part of the water supply.

It is essential you negotiate any such Easement before purchasing the plot – otherwise the adjoining owner could hold you to ransom over the rights to cross his land.