Emyr Pierce

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Can I sell off a garden plot for development?

I live in a large house with extensive gardens and am thinking of selling off part of it for building. Can I approach a developer to do this, or would I have to apply to the Local Authority myself and then sell the plot with planning permission?

You have various options, but the most important point to bear in mind is that the plot with the benefit of planning permission is going to be more valuable.

It is usually the case that the seller obtains his own planning consent for the plot and then offers it for sale with the benefit of such consent. Alternatively, you could sell the plot without the benefit of planning permission, with the land being worth less accordingly, and leave it to the developer, or purchaser, to make his, or their, own application for planning consent.

A third option, which is increasingly attractive to developers, is an Option to Purchase. This enables a developer to secure an Option to Purchase the property which is exercisable once planning permission has been obtained.

This gives the developer a certain period of time, say six to 12 months, in which to secure appropriate planning consent for the site at which time the developer or buyer then exercises the option to purchase the land at a previously agreed price.

This provides the buyer with the security in the knowledge that once planning consent has been obtained there is a binding agreement. For the seller, it provides comfort in the knowledge that, at an agreed price, the land will be sold once suitable consent has been obtained – subject, of course, to the time limits imposed by the Option Agreement.

Provided you secure the price you are seeking to achieve for the plot, it may be easier to sell it at this agreed price leaving the buyer to make all the running with regard to planning permission. If, however, a buyer is only interested in purchasing with the benefit of suitable planning consent then you will need to obtain this first.

Can I protect septic tank use?

We are hoping to buy some land on a farm in West Wales on which we intend to build. There are no mains drains and the new house will feed into an existing septic tank which does not form part of our land, although the existing farm is quite happy for us to use it. My concern is whether someone in the future could stop us using it. Can I protect our continuing use of the tank?

If the septic tank is situated on some other part of the farm which is owned by the seller of the plot then, provided you are properly advised by a specialist property lawyer, the necessary rights can be secured at the time the plot is bought.

You will need to obtain rights of drainage to the septic tank across the land retained by the farmer. These rights will include the right to access the farmer’s land for future maintenance and repair of your pipeline in return for your share of the future costs of maintaining, repairing and empting the tank.

If the farmer is also the owner of the land on which the septic tank is sited there should be no justification for any additional payment to the farmer for these rights.

If the tank is sited on a third party’s land then a separate Deed of Easement will be required and you will need to negotiate this with the neighbouring owner for which a fee may be payable.

Should I buy a house which lacks planning approval?

I am buying a house which has had the original garage converted to living space. It transpires from the local searches that this conversion is not covered by Building Regulation Approval. What should I do as I want the house?

It is quite probable that this conversion would also require Planning Permission due to its change of use. If you have established that it is only Building Regulation Approval which would have been required – and this was not obtained at the time – you can obtain indemnity insurance cover for the lack of Building Regulation Approval provided the alterations were carried out more than 12 months ago.

Be aware however that any approach to the Local Authority may well invalidate any indemnity policy and you must, therefore, decide early on which option you wish to take. Alternatively, you can submit a retrospective application for Building Regulation Approval, the cost of which will probably exceed the cost of any policy.

Do not forget, though, that one critical part of a lack of Building Regulation Approval is the fact the Local Authority has not confirmed that any alteration has been carried out to Building Regulations standards.

You must, therefore, satisfy yourself on the existing structure of the garage conversion – regardless of whether or not you choose to take out such a policy for the lack of any formal consent.

Do I need buildings insurance in leasehold flat?

I have been living in a new build apartments complex for the last 12 months, but have just been told by one of my neighbours that I don’t need Buildings Insurance as that is covered by the Management Fee. Is that right?

It probably is. In a leasehold complex of multiple units, whether it be apartments or flats, the obligation to insure will remain with the Freeholder who also has the responsibility of maintaining the building.

The cost of this is distributed proportionately among the tenants via the service charge. The service charge will include those contributions towards maintenance, repair and shared utilities as well as a proportionate contribution towards the overall insurance premium for insuring the building. Each individual apartment owner need only insure their own contents, fixtures and fittings.

You should also ensure that your mortgage repayment does not include any building insurance premium as this is already covered by the landlord and payable by you in the service charge.

Can I sell house without wife’s knowledge?

My marriage has broken down after 21 years and have two children aged 17 and 20 who both still live at home. I have paid the mortgage and all the household bills for those 21 years and mine is the only name on the Title Deeds. Can I sell the house without my wife’s permission?

If you and your wife have separated or your marriage has broken down then, unless you have reached a specific agreement between yourselves, all assets owned by you individually and jointly are technically in dispute.

It would therefore be inappropriate or unadvisable for you to attempt to sell the property without your wife’s consent as you would only be making matters substantially worse, particularly if your adult children continue to live with you at home.

This does not, of course, take into account in any way the alternative accommodation which you and your adult children will require. It is quite possible that your wife’s lawyers may well have registered a Restriction on the Register of your title which will prevent any dealing with the property without your wife’s knowledge.

There is nothing to be gained by trying to dispose of the asset without your wife’s knowledge as you are technically on notice that it forms part of the matrimonial property which is in dispute.

Can I stall on house contract exchange?

I have made an offer on a house and am due to exchange contracts next week. Incredibly the house I have really wanted for years has suddenly come on the market with a different Agent. Can I stall on contract exchange to give me time to decide on the second property, and will I be allowed to pull out of the first sale?

Unless contracts have actually been exchanged then either party is entitled to withdraw. There are a number of ways that a Buyer can stall, but this does raise the question of whether one should be open and honest with your Seller.

If you are genuinely undecided because your preferred property has now become available perhaps you should advise your Sellers of this fact.

It would take your existing Seller some time to find an alternative Buyer in any event and at least he would be aware of the prospect of your not actually proceeding.

My view is that provided you are open and honest with those with whom you are dealing then should you withdraw you have at least been open with your Seller.

You can of course withdraw at any time up to the point when contracts are unconditionally exchanged, but to do so at the last minute without warning is a bitter pill for your Seller to swallow.

How can we secure the sale of dream house?

We have recently seen a house which we have fallen in love with. Ours has now gone on the market, but we are frightened of losing the one we want to buy. Is there a way we can secure it while waiting for our property to sell which might take some time?

Sadly not – unless your seller is in no particular hurry. However, any seller who is willing to wait until you have sold runs the risk of being let down should you ultimately be unable to sell your property. A seller will, therefore, be advised to continue to market the property despite having accepted your offer in principle.

This means that if an alternative buyer either offers the same price or more, and is able to proceed immediately, then your seller may decide to proceed with the party who is best placed. One mutually beneficial way of dealing with the situation is to enter into an Option Agreement where, in return for a non-refundable payment, the seller agrees to “hold” the property for you until certain conditions are satisfied – such as an agreed sale of your own property.

The principle is based on the seller receiving some form of compensation at the end of the Option Period (usually six to 12 months) in return for agreeing not to consider any alternative offers. Once the Option Period has expired the seller is free to negotiate with any other buyer and keeps the Option Fee by way of compensation for his lost opportunity.

If, on the other hand, during the Option Period , the original buyer wishes to proceed then he simply exercises the Option and the matter proceeds with the Option Fee being taken into account as part of the ultimate purchase price. Option Agreements are however potentially complex and you must receive expert advice from a property lawyer before entering into one.

How do I remove name from Land Registry?

I bought a property as Joint Tenants with my father 12 years ago but sadly he died at the beginning of this year. How do I now get his name removed from the Land Registry?

This is very straightforward indeed. As you owned the property jointly as Joint Tenants with your father then the legal title to the property will have already automatically passed into your sole name.

This is the effect of owning jointly as Joint Tenants rather than as Tenants in Common where your respective shares in the property would have remained with your respective Estates. Accordingly, following your father’s death you are now the surviving Joint Tenant and the property is entirely yours.

If the title to the property is registered then all you need do is simply submit a copy of your late father’s Death Certificate to the Land Registry and the Land Registry will remove your father’s name from the Register leaving the property registered in your sole name. They will send you a copy of the updated register in your sole name.

Consolidating loans into a mortgage

I am hoping to buy my first house, but I already have several credit card debts as well as a Student Loan. Could I consolidate those loans into a mortgage – or is that frowned upon by the Financial Institutions these days?

It is more than likely that any successful application for a mortgage will require you to repay your existing loans out of the monies advanced. By reducing your debts the mortgage company will be more confident that you can afford to make the mortgage repayments as your other loans will have been discharged.

The question will be, of course, whether or not you are able to borrow sufficient funds to cover both the purchase of the property and the repayment of your existing loans, which will inevitably mean that you will need to find at least 10% of the purchase price by way of deposit.

If you are able to consolidate your existing loans in this way then your overall borrowing will inevitably be cheaper.

Can I make a conditional property offer?

I want to make an offer on a house that is about 60 years old and needs a new kitchen extension. To protect myself can I make it conditional that contracts are only exchanged subject to the granting of Planning Permission for the extension.

It is unusual for sales of residential property to be conditional upon the receipt of Planning Permission as the seller will be more concerned with ensuring that the sale has been secured and a conditional exchange of contracts does not give the seller that comfort.

The buyer could, of course, apply for Planning Permission on a property that he doesn’t yet own as you do not need to be the owner of a property to apply for Planning Consent on it. You simply need to notify the Planning Department on part of the application form that you are not the actual owner.

If an application for Planning Permission has been lodged but its consideration by the local Planning Authority has to go to Committee or Appeal for whatever reason, then the seller may well agree a conditional exchange of contracts on the basis that the planning process is relatively far advanced.