Emyr Pierce Archives - Page 4 of 14

Oct 25

When does property become subject of the lifetime gift exemption?

If my father gifted his house to me, how long would he need to live for to ensure the taxman could not claim back taxes between the gift date and death?

A lifetime gift more than seven years before the death of the donor will usually be the subject of the lifetime gift exemption. If this was a gift of money or any other asset, once the seven years had elapsed from the date of the gift then the asset would no longer form part of your father’s Estate in the event of his subsequent death.

However, with houses it is slightly more complicated in that you must beware of the “Reservation of Benefit Rule” whereby the Revenue will regard your father as having reserved an interest in the asset which he has given away, as he will continue to live in the property, without paying any commercial rent to you, the new owner.

In such circumstances the effect of the Reservation of Benefit Rule is that the Revenue will regard your father as having reserved an interest in the asset which he had previously gifted to you, the consequence of which will be that, for tax purposes, the Revenue will include the value of the property at the date of your father’s death in the overall value of his Estate.

Should your father’s Estate, inclusive of the value of the house, be below the Inheritance Tax threshold, then his gift will not have any adverse effect on the tax position as even if the value of the property is written back into his Estate, it will not be of sufficient value to result in any Inheritance Tax being payable.

If, on the other hand, the property is of substantial value, what may appear to be a substantial saving in Inheritance Tax as a result of the gift may not necessarily be available despite his lifetime gift should such gift fall foul of the “Reservation of Benefit Rule” .

* 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

Oct 25

My father held leasehold interest but my mother held freehold interest – what happens now?

My mother has recently died. She was the owner of the freehold interest in the property but on receipt of the Title Deeds we note that the original leasehold interest remains in the sole name of my late father who died 10 years ago. What do we need to do?

South Wales has a number of properties that were originally leasehold but as the years have passed occupiers have purchased the freehold interest.

It is often the case that on acquiring the freehold the freehold title will be registered separately to avoid having to merge the two interests and pay a higher Land Registry fee. This gives rise to potential difficulties if the property was originally in the sole name of one only of the spouses.

In this case that spouse has since died and the surviving spouse has purchased the freehold interest in her sole name. This leaves the freehold interest in the wife’s name and the leasehold interest in the late husband’s name.

A Grant of Representation will be required for each Estate in order to properly deal with the interests in the property that the respective spouses owned. This will deal with the deceased husband’s leasehold interest in the property. It will not take too long, but will inevitably delay any on-going sale.

It may be that the executors of each spouse’s Will may be the same and accordingly a Grant of Representation to each Estate can be obtained by the same individual.

Oct 1

Do I need permission to fit a solar panel to a shared ownership property?

I live in a shared ownership property to which I would like to fit a solar panel. Do I need to seek permission from the Housing Association who own a share in the house for me to be able to do this?

Housing Associations who own properties on a shared ownership basis with the occupier secure their interest in the property via a charge against the property, which include provisions that mean you are not entitled to carry out alterations to the property without the consent of the Housing Association.

In many cases the Housing Association will own a majority share in the property and will not be willing to allow the occupier to make any alterations to the property which may either prejudice their interest or devalue the property.

You must contact the Housing Association with details of your proposals and they may well approve them – provided their interest in the property is not prejudiced and the proposed alteration does not have an adverse effect on the valuation of the property. You must retain any written consent given by the Housing Association for this installation as you will be required to hand this over to a prospective purchaser on re-sale.

Please be aware that your mortgage company may also be very concerned about any formal solar panel lease agreement to be entered into with the suppliers as there are strict rules governing the type of such lease agreements that are acceptable to Lenders. Both the Housing Association and your Lender may therefore have strong objections to your proposals.

Oct 1

How can I evict a tenant from a property I own?

How can I evict a tenant from a property I own in Brecon? He is not paying his rent and not allowing the Estate Agent to show people around the property.

Presuming your tenant is occupying the property under the terms of an Assured Shorthold Tenancy for a fixed period of at least six months and not more than 12 months, then Possession Proceedings can be started against him if he is two months in arrears with his rent and is clearly in breach of other covenants such as refusing access to your Selling Agent to market the property provided of course your tenancy agreement covers this point.

The process can take some weeks but you must follow the procedure strictly in order to avoid falling foul of the Anti Eviction Laws.

A Notice of Intending to Issue Possession Proceedings is initially served on the tenant and an application then submitted to the Court. The procedure can effectively give the tenant a further six weeks before he has to vacate, which then leaves you with the ultimate problem of having to pursue the tenant for outstanding rent.

Consult a solicitor immediately to ensure the procedure is started without further delay.

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.

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 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 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.