Your Home - Q & A - 31 Oct 2010
Last month I wrote a questions and answers article in the North Cornwall Advertiser weddings feature.
Due to the positive feedback on the Q & A format this month I have asked our lawyers to provide a few questions and answers on the topic of Your Home:
Q. I am a widow and I am about to marry again. My fiancé George and I are each going to sell our own houses and purchase a property together. We both have children from our previous marriages and I am anxious to ensure that my children eventually inherit my money. How can I arrange this?
A. George and yourself should purchase the new property as tenants-in-common. You will need to ensure that the transfer document shows whatever you agree with George. Either you agree to hold it in equal shares or in proportion to the money you each put in. You can then leave your own share under your Will.
You could then make a Will leaving your share of the house in Trust for your children but provide that George can occupy it during his lifetime. Although George will be able to have full use of your share of the house he will not actually own it. In the meantime, George will be liable to pay all the outgoings on the property in the usual manner and it will be possible for him to move if he needs to. This arrangement will ensure that your share of the house is safeguarded for your children.
Another benefit of this arrangement is that if George should require long-term care it will not be possible for your share of the house to be taken into account in assessing his means to pay his care fees because George does not own it.
If you have already purchased your property together and hold it as Joint Tenants rather than Tenants in Common the Joint Tenancy can be converted into a Tenancy in Common. Your solicitor will be able to advise how you currently hold your property and advise you further.
Q: Am I liable if a person is injured whilst on my property?
A: Generally, yes.
The Occupiers’ Liability Act 1957 governs the duty owed to visitors to your land/property and imposes a duty to take such care as in all the circumstances of the case is reasonable to see that a visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
However, in the case of Kmiecic v Isaacs (2010) Mr Kmiecic was injured after he fell from a ladder while repairing Mrs Isaacs’ garage roof. She would not let him get to the roof via her son’s bedroom window because she apparently did not want him to dirty her carpets. Mr Kmiecic was therefore using Mrs Isaccs’ step-ladder to get to the roof. Whilst using the ladder, it slipped and Mr Kmiecic fell and was injured.
The court did not hold Mrs Isaacs liable for this, saying she had not assumed control over how he carried out the work.
Check your household insurance policy and see if you are insured for such risks.
Q: My wife loves the garden – can she be buried there when she dies?
A: There is nothing to stop you scattering her ashes over the garden but a body is defined as clinical waste and therefore has to be disposed of in accordance with the requirements of the Control of Pollution Act 1974 and the Environment Protection Act 1990. There is however no law which prohibits a burial on private or unconsecrated land or which requires the burial to be in a coffin but clearly advice would need to be sought to ensure all legislation is complied with if a person had requested this in their will.
Q. I am going to fit a new, double glazed door and window which I brought from a DIY store. Is there any paperwork I should have for this?
A. There will be no guarantees given with these units which may cause a problem if you sell the house. Also, as the units will not be fitted by a FENSA registered contractor you must serve a Building Notice on the Local Authority to comply with the Building Regulations. Without this, when you sell the house you will be asked to pay for indemnity insurance to cover the lack of a FENSA certificate or Building Notice.
It is always advisable to use a FENSA registered contractor, once they provide you with a FENSA certificate on completion this should be stored safely for when you sell your house. You could ask your solicitor to hold this with your deeds for safekeeping.
Q. How do I find out which fences around my house belong to me?
A. If you don’t have the deeds available to tell you, look at the fence posts. If the fence posts are on your side of the fence, it is a reasonable assumption that the fence belongs to you on the basis that the owner of a fence should present “a fair face” to his neighbours. Do not however enter into a dispute on the basis of this “rule of thumb”. Ask your Solicitor whether the deeds deal with the boundary fence.
Q. There is a piece of land next to my house that is not in my title deeds but I have used it for 20 years, can I claim ownership of the land?
A. If the piece of land is not registered it may be that no-one owns it. A search can be performed to identify if the land is registered. If it is not and you can confirm that you have been in use of the land for more than 12 years without permission or payment to another person you may be able to register possessory title.
The possessory title may be upgraded to Absolute Title after a further 12 years if no other person has claimed that the land is theirs during this period therefore the sooner you register the land the better. Evidence from a third party is very useful.
Your solicitor should be able to provide more detailed advice on this matter.
Q. I was evicted from my home due to mortgage arrears and the sale monies from my property were not enough to repay what I owed. Do I have to pay the shortfall?
A. Yes. If you are unable to make arrangements to repay this shortfall the lender can take you to court to recover these monies. However, in most cases there is a time limit for the bringing of court proceedings.
The lender could also obtain a charging order against any new property that you buy. This is in effect a court order that when your new property is sold, the sale proceeds will be utilised in repaying the shortfall.
It is also possible in certain circumstances for the lender to obtain a court order for the sale of your new property to repay the shortfall.
One way to avoid liability to pay would be to file for bankruptcy. If a bankruptcy order was made against you, this would wipe the slate clean concerning any outstanding debts. Of course professional advice must be sought before making a decision on such an important matter. Your Solicitor or the local Citizens Advice Bureau will be able to assist and legal aid may be available.
Whilst these provide some guidance they are not are not complete legal advice therefore you should always speak to a solicitor about your specific issue.
If you have a question that you would like answered please telephone, write or email us using the below contact details. We will try to deal with your question in a future edition. I look forward to hearing from you.
Director, Paul Finn Solicitors
Tel: 01288 356 256