Emyr Pierce

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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.

Will estate agent charge for market withdrawal?

I have had my house on the market with an Estate Agent for the last five months and received one offer, which was acceptable until the buyer’s survey picked up a number of issues resulting in a much lower offer being made. I have now decided to withdraw the house from the market. Will I be expected to pay any fee to the agent bearing in mind no sale will take place?

Sellers will often elect to stay put for a number of reasons, and an estate agent is only entitled to his commission in the event of his finding a Buyer who is able and willing to proceed to complete the purchase of your property.

If a sale has been negotiated through the selling agent then this will be on terms and at a price acceptable to both parties. If the Buyer subsequently varies that offer as a result of further enquiries, survey or inspection then the Seller is of course not obliged to proceed on these renegotiated terms. If the renegotiated terms are unacceptable you are of course entitled to withdraw in the same way as the buyer will withdraw as he is no longer willing to proceed at the original price.

In such circumstances the agent is not entitled to his sale commission as the sale which he negotiated did not proceed as the Buyer was not willing or able to proceed as a result of his survey but will be able to recover advertising costs and any other costs covered by the agent’s own contract.

Can I buy derelict land?

I would like to buy a strip of derelict land attached to the bottom of our garden. It was once part of the garden of a Rectory which has been empty for more than two decades. The land has not been used in all of that time and has no other access. How shall I go about trying to buy it?

Your solicitor will need to make enquiries of the Church, or Church Commissioners to establish the exact ownership of the land. Searches of the Land Registry are unlikely to be of help as the property appears to have been derelict for two decades and has presumably remained in the same ownership for many years.

A Land Registry Index Map Search will confirm whether or not the Title is registered. On the basis that it remains unregistered due to the fact that it has not changed hands for more than 40 years initial enquiries should be directed to the Church in Wales or, failing that, the National Archive.

The Church may well agree to sell but this could take some time and the sale is also likely to be subject to restrictions or covenants preventing you from developing the land and using it only as a garden ancillary to a private dwelling house or alternatively it could be the subject of Overage provisions whereby any subsequent sale with the benefit of planning permission for development will result in additional payments having to be made to the Church.

Am I entitled to Council Tax discount?

My partner and I have a joint tenancy agreement on our flat and are both named on the Council Tax bill. He is a full-time student and exempt from paying Council Tax. Should I be entitled to a single person’s discount?

You are entitled to a single occupier discount. Your partner will need to provide a certificate to the local authority confirming he is a full-time student, at which point you will become entitled to the discount which is 25 per cent of your Council Tax bill.

You will only be entitled to that discount while your partner remains a full-time student and once he completes his course and leaves full-time education he will need to inform the Council of his new situation.

Mortgage transfer sparks Stamp Duty Tax

I own a property valued at £410,000 in my sole name. I have recently married and am in the process of remortgaging my property to get a better deal. To secure the best deal I need my wife’s salary to be taken into account by the Lender and I intend to transfer the property into our joint names as this will be a requirement of any mortgage in our joint names. My existing mortgage is £295,000 and I am looking to borrow precisely the same amount from the new Lender. I am astounded to find out that my Solicitors have advised that Stamp Duty will be payable on the transfer into our joint names, why is this?

Stamp Duty Land Tax is payable on any consideration payable for an interest in land.
While no money is actually changing hands in this example, there is a substantial consideration being made by your new wife. At the present time the property is in your sole name with you being solely liable for the existing mortgage. What is being proposed is that the new mortgage, albeit for the same amount, will be the responsibility of both of you and in respect of which the property is being transferred into your joint names.

In other words, your wife is receiving one half of your property in return for her becoming liable for one half of the mortgage debt (despite the fact that you will both be jointly and severally liable for the debt in any event). In this instance there is effectively a consideration made by your wife of one half of the mortgage debt in return for her receiving a one half interest in your property.

Sadly, in your case, as your mortgage is substantial, one half of the mortgage debt amounts to £147,500, which is in excess of the Stamp Duty threshold of £125,000 and, accordingly, a Stamp Duty charge of 1% of the consideration (£1,475) will be payable

Don’t do DIY to make a 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.

Should I change house deeds post-marriage?

My partner and I bought a home together two years ago. We got married six weeks ago and I am wondering whether I need to change my name on the house deeds etc. What documents will I need to change.

No, there is no need for you to make any changes unless you particularly want to. The title to the property will no doubt be registered at the Land Registry and all you need to do in the event of a future re-sale is to produce a certified copy of your marriage certificate showing the change in the name of the female spouse from her maiden name by way of proof that the parties are one and the same as those registered on the title.

You can, of course, forward a certified copy of your marriage certificate to the Land Registry, but this will need to be accompanied by a formal application form with which you are not familiar and which you may need to pay a Solicitor to complete on your behalf. Quite frankly, this is a total waste of money and is not essential.

What may be more important, since your marriage, is to review the manner in which you own the property. Had you bought the property as partners, the property may be registered in your joint names as Tenants in Common rather than Joint Tenants in which case you will now need to make Wills should you wish to ensure that the property will definitely pass automatically to the surviving spouse. Indeed, a Will, now that you are married, is something you should consider in any event.

Landlord opened 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.

It is not illegal for anyone to open your mail. It is certainly discourteous, but not illegal. You should have arranged for all your mail to be forwarded to your new address through the Royal Mail Redirection Service so that the only mail that would continue to be delivered to the property is junk mail.

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. One always relies on the integrity of either new occupiers or former Landlords to forward unopened mail, but of course there is no obligation on anyone to do so and certainly not for any indefinite period.

Fiance’s parents want Pre-Nup Agreement

I shall be 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 prenuptial 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! On the other hand, the property issue can be simply addressed by your fiancé’s parents taking a charge on the property for the amount that they provided.

However, this will imply that the purchase monies were not a gift and that monies remain owing to your fiancé. This may not be appropriate if it was intended that the property should be a gift from your fiancé’s parents and if this gift had been made some years ago then it may only be a matter of years before the value of the gift falls outside the Estate of your fiancé’s parents and therefore will represent a tax effective lifetime gift of their assets.

If a charge were taken over the property then it is a matter for your fiancé’s parents as to whether they would require that loan to be repaid, but in the event of your separating then it is recorded that the funding for the property came from your fiancé’s parents and that you made no direct contribution to the acquisition of the property.

What your ordinary entitlement would be in any divorce settlement is then entirely down to those criteria that are appropriate in any divorce proceedings.

Three potential buyers – for one house

Having waited 18 months to find a Buyer for my property I have now received three offers in the last few days all at different prices. What should I do?

The rules for dealing with more than one Buyer are strict. There is nothing to stop more than one contract being issued by your Solicitor, but he must make it clear to other prospective buyers that contracts have simultaneously been issued to others.

If you cannot decide between your prospective buyers and you wish to give them all an opportunity to proceed on a “first come first served” basis, then this will amount to a “contract race”. This is hardly ideal as far as a buyer is concerned, but it is the only way that you as the Seller can secure the best possible price from a buyer wanting to proceed at the earliest opportunity.

It will need to be made perfectly clear to all three prospective buyers as to the basis on which you intend to select the successful buyer – such as the first person to be in a position to unconditionally exchange contracts will secure the property.

Any specific requirement as to the payment of a deposit to facilitate such exchange must also be made perfectly clear to all parties to ensure all three buyers have an equal opportunity to secure the property. It is then literally the first person to satisfy the exchange criteria who will secure the property