Emyr Pierce Archives - Emyr Pierce

Jun 16

Can I claim against survey oversight?

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. You should also 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, should you be able to prove negligence. As with all such litigation the cost of pursuing it must be weighed up against the overall cost of the works.

Jun 16

Can I be forced to paint the outside of my house?

MY neighbour is having the outside of his house painted to put on the market and mine is looking very tatty next to it. He says the state of my property is now affecting the value of his and has asked me to get mine repainted. He is threatening me with his solicitors. Can he do this?

NO he cannot. If your property is very dilapidated due to lack of maintenance then the only remedies available to your neighbour would be a local authority enforcement notice declaring the property to be in a dangerous state which would require you to carry out urgent repair works for health and safety reasons, or action by an estate owner who may have the benefit of a restrictive covenant for repair should you live on a development where all properties are subject to various covenants including an obligation to keep the property in a good state of repair, and to decorate the exterior of the property, say, every five years.

Jun 12

Do I need Planning Permission for my boat?

I am considering buying a boat, but the only place I can keep it during the winter months 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 or storing a boat on your property. Many properties are subject to covenants or 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 boat 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 boat 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 neighbours who are often subject to similar restrictions.

Jun 2

Can we withdraw our offer?

My partner and I have made an offer on a house which has been accepted and we would due to exchange contracts next week. She has now said it is too soon for us to live together but I can’t afford to buy on my own. Can we walk away from this, or is it too late?

Fortunately, it is not too late as you may withdraw from any transaction prior to contracts being unconditionally exchanged. Despite your being virtually on the point of exchanging contracts, it is possible for either party to withdraw from the transaction. You are, therefore, free to withdraw without any obligation to indemnify the seller for any of his abortive costs or for any inconvenience caused.

A late withdrawal like this often infuriates the innocent party as they have no recourse to make any claim for the recovery of their abortive costs. All you can do is apologise to the seller for your late withdrawal, which is due to a change in your personal circumstances which are clearly beyond your control.

Jun 2

How do I find the owner of the wasteland that I want to buy?

There is a small plot of wasteland at the side of my house which I would like to buy to extend my plot. I have asked around but no-one seems to know who owns it. How do I find out who the owner is?

This is a very common problem. While the majority of land throughout England and Wales continues to become registered land with details registered at HM Land Registry, numerous pieces and parcels of land (many where ownership simply is not known) remain unregistered.

With unknown parcels of waste land it is often difficult to identify the actual owner. You can make enquiries either direct through your solicitor or direct to the Land Registry to establish whether the land is registered. If it is, then identifying the owner is a relatively simple process as you simply obtain a copy of the title which will identify the name and address of the proprietor. If the search shows the land is unregistered, then it is very difficult to establish who the true owner is, particularly if enquiries in the immediate locality prove unsuccessful.

You are, therefore, left with the prospect of having to take steps to claim the land as yours. This will involve initially ensuring that the land is enclosed within your own property in order that you may show that you have enjoyed uninterrupted occupation of the land. You will need to swear a Statutory Declaration evidencing the period during which the land has been occupied solely by you without any interruption or claim from the rightful owner. You can apply to the Land Registry for Possessory Title to the land based on appropriate evidence in support.

If, however, at some time in the future the true owner lays claim to the land then the Land Registration Act 2003 makes it easier for the lawful owner to do so upon production of proof of title – despite the fact that you may have occupied the land for the previous 10 years or so.

May 27

How do I remove my ex-wife from my house deeds?

My wife and I have divorced and finally reached a financial settlement which includes me paying her off a share of our home. How do I remove her name from the house deeds?

If as a result of the financial settlement you have remortgaged the property to help raise the money to pay your ex-wife her share of the home, then the position is relatively simple, as during the process of remortgaging, the property will be transferred from your joint names into your sole name.

The former joint mortgage will be repaid out of your new mortgage funds and the property ending up in your sole name with your ex-wife being released from her obligations under the existing mortgage.

It is essential that if you are paying, in addition to repayment of your joint mortgage, an additional capital sum to your ex-wife, that the consideration shown in the Transfer into your sole name is the total of the capital amount payable to your ex-wife plus her one half share of the existing mortgage debt, which you are, effectively, absorbing. However, if there is no additional capital payment to be made and you are simply absorbing the existing joint mortgage, then this could be dealt with by way of a Transfer of Equity into your sole name.

May 27

Where are the deeds to my house?

I bought a house about 10 years ago and I have been having a bit of a clear out of all my documents and I cannot find any deeds to the house. In fact, I don’t ever remember seeing any?

The Title to your property is likely to be registered at HM Land Registry. The Registry no longer issues formal documents as the information is kept on an electronic register with each property having its own Title Number. Following completion, therefore, owners are now issued with a Title Information Document – a snap-shot of the electronic register at the precise time on which the electronic copy is printed. This is effectively the main Title Document.

If there are mortgages registered against the Title, or documents affecting the Title which contain covenants, or restrictions, then copies of these documents are often retained at the Land Registry and their existence mentioned on the register. If you have a mortgage on the property the lenders only now retain the Title Information Document and the original Mortgage Document leaving you to retain possession of all pre-registration Deeds and Documents and other guarantees and documents relating to the property.

Your solicitor will have returned the Title Information Document and Mortgage Deed to the lender and may well have retained the balance of these other documents, either on file, or in safe custody, at their offices. Alternatively, the solicitors will have sent the balance of these documents to you to keep, and it is imperative you know where these are as the guarantees, planning permissions etc will need to be handed over in the event of resale. If they have been mislaid or their whereabouts unknown then you will have to pay for copies or duplicates.

May 19

Could another buyer beat me to it?

I have had an offer accepted on a house that I really want to buy. However, does this mean that it is mine subject to contracts being exchanged, or could another buyer still beat me to it?

Either party can withdraw from a transaction up to the point of formal exchange of contracts which only takes place once the buyer’s solicitor is satisfied with the results of searches, their inquiries on title and the buyer has received a satisfactory mortgage offer. Proceeding before any of these issues have been satisfied represents a substantial risk and isn’t possible in any event if a mortgage is involved as the lender will insist on all of these preliminary matters being satisfactory.

Accordingly, either party can withdraw at any time between the date an offer is made and the date when contracts are exchanged. This enables a buyer to withdraw should the result of his enquiries or survey be unsatisfactory or he fails to secure satisfactory mortgage finance, while the seller can also withdraw should he receive a higher offer. This will very often be a question of morals and integrity on the part of the seller.

May 19

Does my friend’s ex-husband have any claim on her property?

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 predominantly 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 any interest in the former matrimonial home.

May 12

Should I become my neighbour’s Attorney?

I have been helping an elderly neighbour with his property/financial affairs over the last few years and he now wants to appoint me as his Attorney in a Lasting Power of Attorney. Should I let his relatives know what is being proposed?

It is a specific requirement when granting a Lasting Power of Attorney that the document is registered with the Office of the Public Guardian and it is a further specific requirement that the Donor nominates a “person to be told” who is notified of the Donor’s intention to register the Lasting Power of Attorney in your favour.

This person should ideally be the Donor’s next of kin or someone who knows the Donor well and would be likely to object to the registration of the LPA if they felt that the appointment of the Attorney was, for whatever reason, inappropriate. This enables the “person to be told” the opportunity to lodge an objection to the registration of the LPA within five weeks of such notification.

It is not, therefore, necessary for the next of kin to be notified as it will depend on whom the Donor chooses to notify by way of his selected “people to be told”. It is always advisable to keep relatives informed of such proposals, particularly if you are not a member of the family, in order to avoid any misplaced allegations regarding your motives.