Emyr Pierce Solicitors Archives - Page 4 of 17

Oct 1

How can I get on the property ladder?

I am a first time buyer, but I have very little deposit to put down and, of course, the Lenders have stopped all 100% mortgages. Does that mean I have no chance of getting on the property Ladder?

Unfortunately, it does – unless you can find wealthy parents who are willing to lend you the balance of your 10% deposit, as most lenders will not lend more than 90% in the current market.

Any such loan or gift from your parents or any other third party will need to be disclosed to the Lender during the application process, and if your parents, for example, wanted to protect their investment by way of a second charge on the property, the majority of Lenders will not agree to this.

An alternative is to look at the availability of any shared ownership properties by enquiring of Housing Associations or the Local Authority, as this is another way of getting a foot on the property ladder in cases where you only own that proportion of the property that you can afford, with the balance being retained in the ownership of the Housing Association.

Most new build developments have, as a matter of policy, a certain number of units of such Social Housing as a condition of the initial development as required by the Local Planning Authority to provide first time buyers in the community with such an opportunity.

* 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

Sep 23

What is a Flying Freehold, and are there disadvantages to it?

The property which I am looking at has a Flying Freehold. What does it mean and are there disadvantages to it?

A Flying Freehold exists where part of a freehold property overhangs a freehold property owned by a third party.

While somewhat rare these days, such circumstances would arise where the first floor bedroom of one house overhangs either a lounge or kitchen on the ground floor of another property – or the first floor bedroom of the first house overhangs a pathway or alleyway between two houses belonging to the second house. More particularly, the situation can arise where an old country mansion has been converted into three or four separate units.

As these older properties were not necessarily constructed with first floor rooms precisely the same size as those on the ground floor if first and ground floor rooms are of inconsistent size it is possible that the first floor of one unit can overhang the ground floor of an adjacent unit.

The crucial issue in a definition of “Flying Freehold” is the word “Freehold”.

Those who live in flats will not see any difficulty in the concept of a first floor flat overhanging a ground floor flat in separate ownership. The crucial difference is that with a flat this will be Leasehold and the individual Leases of each flat will contain the various rights of support etc, which enables one property to exist above another in separate ownership.

Where one freehold property overhangs another, these rights of support will not be intrinsic in the legal titles to either property – hence the term “Flying Freehold”.

Sep 23

Can we withdraw a written request to extend our Tenancy?

We are currently in a six-month Tenancy Agreement that ends on 16^th October. We have signed a letter to say we want to extend the Tenancy for a further six months but have changed our minds and now want to buy. Can we withdraw that letter?

Once your current Fixed Term Tenancy expires you can continue to occupy the premises under the terms of the same Tenancy Agreement without necessarily entering into a new one.

You may have indicated to your Landlord that you wish to stay living at the property, but the reality is your existing Fixed Term Tenancy has yet to expire and if you held over under the terms of the Assured Shorthold Tenancy beyond 16^th October you would be entitled to vacate on the appropriate written notice.

It’s, therefore, not too late to notify your Landlord that you do not intend to remain at the property and will, therefore, be vacating the premises on 16^th October.

Sep 23

My father died a widower without leaving a Will. Do his estranged sons have a claim?

My father died a widower without leaving a Will. I thought I was his only child but it appears he had two sons by a previous marriage who are making a claim against his Estate, which includes two properties. He had no contact with them in more than 40 years. Do they have a claim?

Unfortunately, your father died without making a Will and his spouse had predeceased him. In the absence of a Will he will be deemed to have died Intestate.

In an Intestacy assets will pass in accordance with the Intestacy Rules which is an attempt to anticipate what the deceased would have done had he made a Will. The order of beneficiaries entitled will dictate who is entitled to his Estate.

As he died a widower, but leaving children, then ALL of his children will share his Estate equally. Sadly, despite not having seen anything of his other children for over 40 years they are undoubtedly his children, just as you are. Therefore, all three of you will be entitled to share your father’s Estate equally.

In other words all three of you are entitled under the Intestacy Rules and his two sons need not necessarily make a claim against his Estate as they are absolutely entitled in any event.

This is different to two estranged sons who suddenly make a claim against an Estate where there may have been a Will leaving everything to you. In those circumstances their claim would not succeed unless they could show that they were dependants of your late father and, after no contact in 40 years, this would be impossible to prove.

It is examples such as this which emphasises the importance of making Wills – particularly if you have children by a previous marriage or previous relationship.

Sep 16

Do I need planning permission to replace my house’s brick built extension with a conservatory?

We are currently carrying out a lot of work on our house and want to demolish the single storey brick built extension to the side of the property replacing it with a conservatory. Do I have to get Planning Permission to do this?

In most cases you will not need to apply for Planning Permission to knock down your house/business premises or any of its outbuildings unless the Council has made an Article 4 Direction restricting the demolition or alterations you could normally carry out under Permitted Development rules.

If you decide to demolish a building it does not automatically follow that you will get Planning Permission to build any replacement structure or to change the use of the site. Where demolition of any kind of a residential property is proposed, the Council may wish to agree the details of how you intend to carry out the demolition and how you propose to restore the site afterwards.

Adding a conservatory to your house is considered to be Permitted Development not needing an application for Planning Permission subject to certain limits and conditions.

Demolition is dealt with under the Building Act 1984 and generally requires six weeks’ notice to be given to the Local Authority Building Control before demolition begins.

Sep 16

What are the implications of buying a house, with a garden of unknown ownership?

I am interested in buying a house that has a garden attached. The current owner has been using the garden but nobody knows who actually owns it. The Estate Agent says a solicitor has been unable to trace the owner. What are the implications of buying the house and, if the garden is unregistered land, could we register ownership of it?

On the basis that the title of the house is of no issue the problem will be a lack of title deeds to the unregistered garden land. On completion of the purchase you will be looking to register your title to the house and garden but unless the sellers’ solicitors can find the title deeds to the garden your sellers will not be able to prove that they are the rightful owners of the garden.

The only solution is for the sellers to claim that they and their predecessors in title have enjoyed uninterrupted use of the garden for, ideally, more than 15 years. If the garden is also enclosed within the boundaries of the house then this will also help and will suggest that it has been enjoyed as part of the house and not part of any adjoining owner’s land.

Proof of the sellers’ ownership or uninterrupted long use of the garden can only be provided by way of Statutory Declaration evidence from the sellers and, ideally, their predecessors in title. These Declarations will identify the extent of the land concerned and will confirm that a long period of uninterrupted use of the land has been enjoyed by both.

Following completion, an application is made to the Land Registry for a Possessory Title. The Land Registry cannot grant an Absolute Title for the risk of the rightful owners proving to the Land Registry that they are the rightful owners.

If no-one comes forward claiming a better title than you to the land, then this Possessory Title can be upgraded to an Absolute Title at a later date.

Sep 16

Am I responsible for the maintenance of my apartment’s balcony?

I am thinking of buying an apartment with a balcony on a new development in Cardiff Bay with a great view of the waterfront. But it is very open to the elements. Will I be responsible for the upkeep and maintenance of the balcony?

Lease documents issued for properties like this should define the balcony as a part of the external structure of the building – with the repair and maintenance the responsibility of the landlord and management company.

When buying a flat with a balcony, always ensure the lease specifies that it is a part of the external fabric of the building. The only part of the balcony you should be responsible for maintaining is the upper surface of the floor of the balcony.

One problem is that in many leases the balconies are overlooked and therefore the maintenance responsibility for the balcony may not be specifically mentioned. In such cases you will need a Deed of Variation of the Lease on order to record the maintenance arrangements for the balcony establishing what part of the balcony is the responsibility of the landlord and tenant respectively.

Sep 9

Our house extension was never approved – what should we do?

We bought a house eight years ago which had been extended five years earlier with a small utility room to the side. We are now selling up, but have been told we need to provide building regulation approval for the extension which we’ve discovered it never had. What should we do?

Up until the turn of this century it had been an unwritten rule that local authorities would not carry out enforcement action against householders who failed to obtain building regulation approval for small alterations and additions which had been in existence for at least 12 months.

However, this all changed following a decision in a case which ruled that local authorities could take enforcement action where building regulation approval had not been obtained – and that such action could be taken for an indefinite period.

So now when it comes to selling a house, whatever alteration has been made to the property, the buyer’s solicitor will want to know whether there have been any alterations whatsoever and, if so, want to see either the appropriate building regulation approval or, in its absence, require the seller to provide an insurance indemnity policy (for which you could expect to pay on average between £75 and £150 depending on the value of the property). This will and does affect a large percentage of the home-owning population as there are very few properties that have not been altered, extended or added to in one way or other.

For anyone who bought before the year 2000 this is particularly galling as they would not necessarily have insisted on a policy in the absence of such consent when they made their original purchase – yet when they come to sell they now find themselves having to provide their buyer with such a policy to cover an alteration that they had not even constructed themselves, and having to fund the cost of such a policy to cover the lack of approval for an alteration carried out by a previous owner.

Sep 9

Do I need to pay Council Tax for a property while it’s being renovated?

We have bought a very old property that is in need of major renovation and are living in a caravan in the garden while the work is carried out. Should we still be paying the full Council Tax for the property while we are not in it?

Depending on the individual circumstances, you can apply for a Council Tax exemption if the property is unfurnished while the renovation work takes place (eg any furniture could go into storage).

If the property remains furnished while the work is going on then there can be no exemption.

If the exemption is accepted you could receive a 100% exemption for the first six months and up to 50 % exemption for another six months after that.

If you apply for an exemption, the Council is likely to send an inspector around to check the property is unfurnished.

* 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

Sep 9

I’m struggling to afford my mortgage – how can I avoid losing my house?

I am experiencing severe problems with paying my mortgage as my working hours – and salary – have been reduced by half. What can I do to ensure I don’t lose my house?

With increasing unemployment a consequence of the current economic conditions, more and more people will experience difficulties in meeting their mortgage repayments. The critical point to bear in mind is to ensure you approach your Lender immediately you are experiencing difficulties as there are various options open to both you and them in addressing short-term problems.

Sadly, the majority of people, probably due to the stress of the situation, stick their heads in the sand and do nothing, allowing arrears to build up over a period of months. Inactivity and the reluctance to meet the problem head on will cause more problems than it solves, as your Lender will become sceptical as to your genuine willingness to find re-employment or resolve your financial problems.

By contacting your Lender immediately you can discuss the various options available. Depending on the extent of mortgage involved your Lender may be able to offer you a “payment holiday” period while you find re-employment or get yourself back on your feet or maybe transfer a repayment product on to an interest free arrangement temporarily depending on what you can afford.

Do not pretend that there isn’t a problem. Meet your problem head on. You may be relieved to hear there may be short terms solutions for your predicament.