Emyr Pierce Archives - Page 3 of 14

Dec 6

What will happen to my mortgage if I’m made redundant?

I have been warned I may be made redundant in the next few months if my company’s business does not pick up. I am very worried about losing the home I bought 15 years ago on which there remains a mortgage which I continue to pay. Is there anything I can do to ensure that I remain in the property if I lose my job and can’t find another quickly?

If you have a mortgage and you encounter employment difficulties, or are made redundant, then the best advice is to speak to your Lender immediately. There is every chance that you may be able to find alternative employment relatively quickly and any difficulty which you may have making mortgage repayments will, hopefully, only be temporary.

Most Lenders will be willing to co-operate and assist you during such difficult times and it is always better to contact them immediately you are aware of a problem, or potential problem, rather than sticking your head in the sand, being unable to make payments for a few months and then be the subject of arrears proceedings.

The Lender may be able to offer you an extended term, repayment holiday or, indeed, advise you as to ways in which mortgage repayments can be reduced during your period of unemployment.

There may also be schemes available whereby you could be assisted by Housing Associations who may be interested in purchasing your property on a Shared Ownership basis to assist you in such circumstances if the prospect of your re-employment was not great.

* 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

Dec 6

If I sell off part of my land, can I dictate its use?

I intend to sell a corner plot of land in the garden of my home in Carmarthen for building, but I do not want any buyer to build a property higher than single storey so as not to spoil my view. Is there anyway I can ensure that this happens?

If you are selling off part of your land on which your purchaser intends to build a dwelling, or if the piece of land is sold with the benefit of Planning Permission for a single dwelling, then you are in a position to dictate those restrictions, or covenants, which will forever bind the use of the land to be sold.

As in large developments, the Transfer to the Purchaser will contain restrictions, or covenants, together with the usual rights over, and reservations in favour of, your Retained Land. The fact that you will continue to live immediately next to the new building, or building plot, emphasises the importance of your ensuring that these restrictions, while not too onerous so as to render the plot unattractive, will ensure that the type of development which takes place is controlled and subject to your strict criteria.

Covenants will usually include restrictions on its use as a single private dwelling house, no business use, a restriction on its height, the maintenance of boundaries and criticlly the need to obtain your consent in the event of the building being altered in any way in the future.

You must ensure that you are clear as to what restrictions you wish to impose before the plot is sold so they are made clear to your lawyer who can incorporate these into the transfer document and ensure that any prospective purchaser is aware of these from the outset.

Dec 6

Can I create a DIY Will?

We have just bought our first house and need to make a Will. A friend of mine has created a DIY Will using a special pack bought from a local stationery business. Is this something I can do fairly simply?

One thing you can always guarantee is that when somebody intends to make a Will they will claim it is straightforward and simple.

If this were the case then it would be perfectly in order for everyone to simply draw up their Will on the back of a cigarette packet. However, half an hour with a Lawyer specialising in Will drafting will identify many aspects that you may not have considered.

You may well have a good idea of what you want to leave – and to whom – but it is the provisions within the Will that take into account certain unforeseen circumstances or, in particular, people dying in the wrong order, which can often be critical.

Ensuring that provision is made for surviving children, even if you do not have any at the time of making your Will, along with the appointment of Guardians for young children, ensuring that your share of any joint matrimonial assets will actually end up with any children from your first marriage, (and similarly for your wife), and above all else your specific wishes recorded in a legally binding document are all critically important.

Do yourself a favour – and consult a specialist to draw up your Will. In the round it really isn’t that expensive and increasingly we are seeing more and more Estate disputes as the consequences of poor or home-made Will drafting becomes apparent.

Nov 8

Is it illegal for my former Landlord to open my mail?

Is it illegal for my former Landlord to open my mail? I moved out of the flat last month and he has opened two letters addressed to me at the property he rented to me.

Interfering with mail is technically an offence under the Postal Services Act 2000 Section 84. Proving it, however, is often difficult and in such circumstances former tenants can often leave debts and hoards of letters chasing outstanding payments etc.

Sometimes these have to be opened in order to establish the position if only to advise the author that the individual no longer resides at that address. Sometimes mail is genuinely opened accidentally.

In any event you should ideally have arranged for all your mail to be forwarded to your new address through the Royal Mail Redirection Service. Any subsequent mail received at the property could either be binned, opened, or destroyed by either the new occupant, or the Landlord and you would be none the wiser.

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.

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.