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      Probate and Guidance Kagan Moss

      Probate and Administration Guidance

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      Probate and Administration

      This note contains an explanation of many points that may arise during a Probate or Administration.  We hope you will find it helpful and informative.

      Introduction – the terms used in this Guidance Note

      Probate is the formal document issued by the Probate Registry (a section of the High Court) as evidence that the Will of the deceased has been shown to be valid. It gives the power to administer the Estate, (the total gross value of the deceased’s assets left after death) to the Executors .

      Letters of Administration is the court appointment document issued to give power to the named Administrators to deal with the Estate when there is no Will or a Will is not held to be valid.  In order to obtain either Probate or Letters of Administration, it is necessary to establish an accurate ‘snapshot’ of the deceased’s financial position at the date of death.  Once all the figures are collated, (which can take some time), the documentation is prepared, and signed by the Executors or Administrators.

      Detailed HM Revenue & Customs forms have to be carefully completed where higher value or complex assets of more than £325,000 are involved as this requires Inheritance Tax has to be considered, calculated, and paid.

      Testator – the person who has made a Will and/or Codicil (Testatrix is the female version)

      Executor – the person(s) named in the Will and appointed to obtain Probate and administer the estate. (Executrix is the female version).

      Personal Representative – this term may be applied to either an Executor or Administrator appointed under Letters of Administration

      Beneficiary – a person or organisation which receives something under a Will or Codicil

      Chattels – personal and household possessions

      Legacy – a specific amount or article left in a Will/Codicil

      Estate – the total of the testator’s assets at the date of his/her death

      Residue – what is left in an Estate after specific legacies and all the testator’s debts and funeral expenses have been met

      Probate Fees – the Probate Registry charges these to process the application.  Fees are charged on a scale, which is set out below.

      Net Estate not exceedingFee
      ££
      5,000No Fee
      All estates exceeding 5,000155
      Sealed copies of the Grant are always required – the Registry cost is 50p for each copy.

       

      A sign of things to come? Government proposed increases (awaiting parliamentary approval prior to prorogation)

      Net Estate not exceedingFee
      ££
      50,000No Fee
      Estate from 50,001 to £300,000

      Estate from £300,001 to £500,000

      Estate from £500,001 to £1,000,000

      Estate from £1,000,000 to £1,600,000

      Estate from £1,600,001 to £2,000,000

      Estate exceeds £2,000,001

      250

      750

      2,500

      4,000

      5,000

      6,000

      Sealed copies of the Grant are always required – the Registry cost is 50p for each copy.

      Unless there are other monies available, the Executors will be asked to provide the Probate fees.  This is refundable to the Executors from the estate.  In some cases, it may be possible to obtain the funds from the deceased’s Bank or Building Society.  We do not fund fees, but if, in exceptional circumstances this is agreed, the cost of the loan and the underlying administration charges will be reflected by an additional amount in our professional fee.

      In all cases where the net estate exceeds £180,000, and in some cases where it is less, the Probate Registry and HM Revenue & Customs require a full and complete analysis of the deceased’s asset and debt position at death, including a detailed description of all land and property; stocks and shares, jewellery, collections, antiques and any other assets.  Many valuers charge on a percentage of the item(s) valued, and property valuation is often charged on a fixed fee basis typically within the range £300 – £500 plus VAT.

      The Deceased – We will require copies of the Birth, Marriage and Death certificates of the deceased.  If the deceased was divorced, a copy of the Decree Absolute is required.  If the deceased was a naturalised British citizen, we will require a copy of the naturalisation papers.  If the deceased was domiciled abroad, this may affect the taxation position.  We will make bankruptcy searches against the name of the deceased before we accept instructions. 

      Money Laundering  This is an issue all over the world and we are under a legal obligation to report any suspicious activity we see or where this is suspected on an account or dealing or where it is possible that an asset in a deceased’s estate is derived from criminal activity.

      Executors and Personal Representatives

      • Regulations requires us to establish the identity of all our clients on every occasion we act for them.  We, therefore, write to our clients at the beginning of a matter explaining this obligation and how it can be satisfied.
      • Executors and personal representatives often incur expenses in carrying out their obligations and duties. Provided such expenses are reasonable and appropriate in the circumstances, and all the Executors agree, they will be reimbursed from funds in the estate.  Unless specifically authorised by the Will or a professional person employed by the estate e.g. solicitor/accountant/stockbroker, an executor is not entitled to charge for their time.

      The Will – It is essential to establish that what is thought to be the Testator’s last Will (with Codicils) is indeed the last testamentary disposition made.  Unless the facts are unequivocal and completely without doubt, we advise that a search be carried out with registers held by Certainty Ltd and the Probate Registry to see if the testator deposited a Will or notification of a Will with either.  In some cases, it will be necessary to write to a number of solicitors local to the deceased’s last address to ask them to check and see if a Will is held by them.  An advertisement may also be placed in the “Wills and Whereabouts” section of the Law Society Gazette which is a solicitors’ weekly professional magazine.

      Where no Will can be found after searching and enquiries and Letters of Administration are issued by the Probate Registry to Personal Representatives (PRs) appointed under the Rules of Intestacy we urge PRs to take out insurance cover against the risk of a subsequent Will being located.  Where there is no Will, and PR’s wish to take out insurance, it is probable that it will be an insurer’s condition that searches referred to above and the statutory advertisements referred below in this note have been actioned.

      Tax   – Inheritance Tax and Lifetime Gifts

      General Information – Unfortunately, many bereaved families may suffer invasive tax investigations and fines as part of a drive by HM Revenue & Customs to clamp down on evasion of Inheritance Tax (IHT).   Examination of financial information such as Bank statements and pension plans, may reveal gifts made during the 7 years before the donor’s death that have not been accurately reported.  Generally, but not always, gifts without reservation, made more than 7 years before the donor’s death are exempt from Inheritance tax.

      Death after 6 April 2009 – On a death occurring after 6 April 2009, Inheritance Tax is payable if the net estate is calculated at a figure above £325,000.  The Executors will be asked to confirm whether or not the deceased made any gifts during the seven-year period before the date of death.  Where partners of this firm are the Executors, we will ask members of the family/friends, or make our own enquiries.  Such gifts may have to be (notionally) added to the gross estate at the date of death.  This may affect whether IHT is payable, or where it is already payable, this may increase the amount payable.

      In some cases, it may be possible to successfully claim a further exemption from IHT in relation to:

      • Deceased spouse/civil partner. This can be up to the current amount of the nil-rate band.  There are strict qualifying rules, evidence and documents required before the HMRC will admit a claim.  If such a claim is made, the additional work required will be charged as a separate item in our account for the work leading to the grant of Probate or Letters of Administration.
      • Property that passes to a “direct descendent” of the deceased. Again there are strict qualifying rules and each case is assessed on its circumstances.  The further relief available may be reduced if the estate is valued at more than £2mn.  The additional work required in order to claim for this relief will attract an additional fee which will be a minimum of £350 plus VAT.

      In cases where IHT is payable, it has to be paid before Probate or Letters of Administration can be obtained.   In some cases, the deceased’s bank will lend the estate the required amount, subject to the payment of an arrangement fee and interest.  Even though the deceased may have funds in a Bank or Building Society sufficient to pay the IHT, these institutions will not normally allow payment from the deceased’s account, (as distinct from a separate loan arrangement) until after Probate or Letters have been issued!  Where necessary, we will contact the deceased’s Bank to make the necessary arrangements.  Otherwise, there are very few lenders who will make such a loan.

      In limited circumstances, there may be an option to pay the IHT in stages.  We will advise you about this if applicable.

      Charitable gifts are exempt from IHT.

      Interest on unpaid IHT– The Revenue is entitled to charge interest on unpaid IHT at the beginning of the seventh month after the month in which the death occurred.  Unless we are in a position to pay all Inheritance Tax within the 6 month period, interest will have to be paid.  At present the interest rate is 3%.  Please note we cannot guarantee to pay all the Inheritance tax within the 6-month period and it is likely that interest will be payable on all but the simplest estates.  If further assets are discovered after probate has been granted and any IHT paid, then interest will be payable on any further IHT payable.

      Capital Gains Tax (CGT) – A liability for this tax may arise where an asset is sold for more than its probate valuation.   From April 2010, the penalty regime for late payment of CGT comprises:

      • A fixed penalty
      • Then daily penalties
      • Then x% due on the tax return
      • Then y% or a penalty of 70% – 100% if there is evidence of deliberate failure to pay.

      Deeds of Variation

      As the law currently stands and subject to various conditions, it may be possible to vary the gifts in the deceased’s Will  and we can provide advice on this aspect where required.

      Funeral Account

      Funds to pay the funeral account will generally be released to us by the deceased’s Bank or Building Society, before grant of Probate/Letters of Administration.  Most funeral directors reserve the right to charge interest on unpaid accounts, and many do so.  In some cases, non-professional executors or members of the family may prefer to pay the funeral account direct and claim reimbursement from the estate.

      Tax Returns

      The responsibility for filing the estate tax returns rests with the Executors.  The timetable is similar to that imposed on an individual under the self-assessment rules.  If the Revenue is to calculate the tax, the return must be filed by 30th September.  If the tax is to be calculated by the Executors, the return needs to be filed by 31st January following the end of the tax year.  We recommend that returns be filed by the earlier date, so that errors/omissions can be corrected before the later date.

      Payments are required in three instalments:

      (a)             31st January in the tax year

      (b)            31st July after the tax year

      (c)             the balance by 31st January following the tax year

      Interim payments are not required if more than 80% of the tax liability for the preceding year was covered by deduction at source and tax credits.  There are penalties, surcharges and interest payments if payments are late or payments on account are under-calculated.

      Income is taxed on a beneficiary in the year that it is received .  Where appropriate, we will supply relevant forms so that a beneficiary’s self-assessment tax return can be completed.

      The Executors may also be required to complete a tax return for the period(s) before the date of death for which the deceased did not make a return.

      Unless otherwise agreed, we will deal with the deceased’s tax affairs and arrange for the accountancy work required to complete the necessary returns and/or repayment claims.  Charges for this work will normally fall within the range of £500 – £850 plus VAT for each relevant period, which is payable from the estate in the same way as our fee, details below.  If the tax position is complicated or problematic, requiring more time and/or specialist advice, we will tell you and let you have an indication of the likely timescale and fees.   In some cases, the cost of obtaining a refund may be greater than amount of the likely refund and so uneconomic to pursue – we will tell you if this is the case.

       Charitable Gifts

      Charities have a legal and moral obligation to ensure that they receive their full entitlement and so they closely monitor bequests.  They usually wish to be consulted about the sale of assets, in case they would prefer to receive an asset in satisfaction of their bequest, rather than the money it might produce if sold.  Charities are entitled to claim repayment of UK income tax suffered on their share of the estate income.  This includes dividends, building society or bank interest and all other forms of taxed income.  Charities require copies of estate accounts, the Will and grants of Probate/Letters of Administration, and other documents they consider relevant to their entitlement.

      All beneficiaries, including Charities, are entitled to claim interest on legacies, which are paid more than one year after the date of death.

      Charities employ legacy managers to scrutinise draft estate accounts and where a charity is also a beneficiary, we are likely to agree our costs with them as well as the Executors.  We may also ask for their input on any issue affecting the estate and generally keep them informed with progress reports.

      Gifts and Legacies to Individuals

      The timescale for payment of gifts and legacies varies and may depend on whether the statutory advertisements referred to below are placed.  If they are placed, then it is not usual for payment of legacies and interim payments of residue to take place until 10 months have expired.  A claimant against the estate must bring proceedings within 6 months of the date of the Grant.  However, a claimant has a further 4 months to serve the proceedings.

      Before a gift or legacy can be paid, we will make a search in the Land Charges Bankruptcy registers against the name of the recipient.  If the search result is returned with entries against the name, we will ask the recipient to certify that the entry(ies) do not affect/relate to them.  If an entry does relate, then this will have to be further investigated and clarified before any monies can be released.

      Beneficiaries will be asked to prove their identity before a legacy or gift is paid.  This can be done at our offices by prior appointment or at the offices of a solicitor local to the beneficiary, whichever is more convenient.  Remote beneficiaries will be asked to obtain formal certification of their identity from the solicitor of their choice.

      Where a beneficiary is not a UK national or lives outside the UK, then additional steps and searches will be made/undertaken.  These may include asking the beneficiary to attend before a notary or lawyer in their country of residence to prove their identity and making enquiries about a beneficiary’s financial position to establish their solvency.

      No legacy or residuary bequest can be paid to a person who is bankrupt and their gift would usually be paid to their trustee in bankruptcy or non UK equivalent.

      Legacies are generally paid by direct bank transfer at the expense of the recipient.  Payments can be made to a foreign bank account – again the costs of changing the sterling payment into the required foreign currency and then sending the payment will be the beneficiary’s and are usually deducted from the payment by the sending bank.  A payment can be made by cheque if preferred and will be sent out by Royal Mail. 

      Insurance

      Any house or other property may have been insured by the deceased and this will need to be reviewed especially if a home is left empty. 

      Credit cards and Internet accounts

      Any personal accounts in the name of the deceased will need to be investigated and in the case of email accounts and websites, passwords may be needed in order to make arrangements for closure. 

      Statutory Advertisements

      In order to protect the position of the Executors from debts and creditors, we recommend that the statutory advertisements under the Trustee Act, 1925 are placed in the London Gazette and the paper local to the deceased’s last residential address.  The average cost of such advertisements is £300 plus VAT.  If the advertisements are not placed, and the estate has been fully distributed when a valid claim arises, it may fall to be paid personally by the Executors.  Where a member of Kagan Moss is an Executor, the statutory advertisements will be placed, unless otherwise agreed.

      PLEASE NOTE

      That irrespective of whether advertisements are placed or not, once Probate or Letters of Administration have been granted, the information is immediately available to the public and the documents are a matter of public record.  Anyone can obtain a copy of the Will, Probate or Letters on payment of a nominal fee to the Probate Registry, and the local newspapers regularly check the Registry for details of local residents’ wills including the amount in the estate, identity of beneficiaries and amount of bequests.  These are published on a weekly basis.  It makes no difference which Probate Registry issued the grant. 

      Lost/Forgotten Assets

      There are different ways to identify lost or forgotten assets such as life policies back accounts or occupational pension plans.  Executors have a duty to identify all financial assets that comprise the estate.  To assist in this process, we will undertake a Financial Asset Search the cost of which is currently under £200.  The search should identify whether there are lost or forgotten financial assets which could increase the value of the estate.  A wide range of financial institutions are contacted by the search company.   Where we are instructed on behalf of the Executors, we will undertake this search as a matter of course unless we are instructed in writing to the contrary.

       VALUATIONS

      Share Valuation

      Shares that form part of an estate will require valuation, regardless of the size of the estate.  However, the valuation and ultimate sale or transfer of a share portfolio not always as straightforward as it may seem.

      Government privatisations, ease of access to Internet share dealing and higher levels of disposable income are just a few reasons for the increase in private client share ownership.  As a result, dealing with the sale of shares in Probate has become more of a task for us.  On the surface, the valuation of a share portfolio may appear to be relatively straightforward, but name changes, mergers, demergers and corporate actions can complicate the process and it can end up as an extremely lengthy process to confirm valid holdings at the time of death, before completing the valuation for probate purposes.  The first step is to identify the Registrars for the shares, so if the deceased had say 30 different shares, contact will have to be made with several registrars to verify the holdings.  It will be necessary to use the Internet or the company’s website or the information can be obtained through a stockbroker.  Once the holding has been confirmed and the share certificate has been verified as valid, the Registrar is informed of the death.  Typically, a request is also made to place a hold on the issue of further dividends, to prevent dividend cheques being sent out to the deceased.

      This can be a convoluted process, especially where shares were acquired years ago, with missing share certificates and company changes to track.  Unless otherwise agreed, we instruct stockbrokers to perform this valuation service for publicly quoted shares and for the sale of shares – their fee is payable out of the estate.

      If the deceased held shares in a private company, those shares may require valuation where business property relief is not due throughout.  There are certain underlying principles to valuing such shares.   Briefly, market value is defined as the best price that the shares in question could reasonably be expected to fetch on a sale in the open market at the date of valuation (which is the date of death).  The use of hindsight is not allowed, although industry specific methods of valuation will be adopted.  Additionally, the articles of association of the company will require examination to determine the exact nature of any rights attaching to the shares.  It may be necessary to consider the impact of the size and status of the shareholding on its price, and the importance of the prospects for the industry and the general economic and political climate prevailing at the valuation date in order to agree a value with the HMRC Shares Valuation Division.

      There are different ways in which to achieve a return on private company shares on which we will advise if required.

      Land and Real (Freehold and Leasehold) Property (Residential and Commercial) – the Executors should obtain at least 2 professional valuations.  A low probate valuation may be self-defeating and challenged by HMRC, thus incurring additional costs.  In addition, if a value is assessed upward on a chargeable estate there will be interest to pay on the additional tax due from the expiry of the sixth month period until payment is made in full.

      Where a low valuation is given for probate and the property is sold for a greater value, then this may incur a liability to pay Capital Gains Tax.

      Joint Property – Any assets that are owned in more than one name will need to be examined.  In certain cases, property jointly owned may pass to the survivor and not form part of the estate. 

      Personal Effects – Antique or vintage items or collections, or an item of potentially financial significance should be professionally valued.  If appropriate, we will liaise with the larger Auction houses.

      Foreign assets – where the deceased held assets outside the UK, we will make contact with other professionals in the relevant county so as to assist in dealing with such assets. 

      Vacant Property – if the estate includes a property or land that is unoccupied or vacant it may become a target for fraudsters who attempt to sell or mortgage it in the name of the deceased.  We subscribe to the Land Registry monitoring service and will add the details to the monitoring list.  Where possible an appropriate restriction will also be placed on the title.  “Squatting” of a vacant property may also be an issue so it is essential that a probate property is secured and secure, inspected on a regular basis and a redirection of mail arranged with the Post Office.  Insurance for an empty property is not easy to obtain and may be subject to onerous terms and is significantly costlier than for an occupied property.

      Legal Fees

      We have already identified typical out of pocket expenses and payments.  Quite often, we may have to locate a missing beneficiary or missing assets, arrange for work to be carried out to an estate property to make it safe or insured.  We may have to search for missing title deeds or share certificates, make tax returns for previous years, deal with foreign property, make funeral arrangements, check the validity of creditors’ claims, dispose of unsaleable effects, negotiate with the District Valuer, and deal with disputes.

      This is not an exhaustive list, but it does show the type of problems that can arise after an initial estimate of fees has been given.  If such a matter arises, we will estimate the probable fee increase to reflect the time and cost necessary to deal with it.  Where it is not a matter that can be concluded within our additional time and fee estimate, we will report to you on a periodic basis.  Please be aware that if we are notified of a lost or forgotten asset after the administration of the estate has been completed and a final invoice raised, we will charge £250 plus VAT for the administration to look into the matter.  This would be our minimum figure and the invoice could be higher dependent on the amount of work required.

      We would like to give you the best information we can about the likely costs of dealing with obtaining Probate/Letters of Administration and the subsequent administration of the estate.  Our fee and time estimate is based on long experience of dealing with this sort of work and we take into account factors mentioned in the Law Society guidance detailed below.

      • Complexity
      • Skill and specialised knowledge involved
      • Number and importance of documents involved
      • Place and circumstances in which our job has to be done
      • Value of property or money involved
      • Whether any land involved is registered
      • Importance of the matter to you

      Our charges are usually made up of three parts:

      Our ‘expense’ rate which is an hourly figure worked out by looking at our overheads such as rent, lighting, heating, salaries – this is the cost to us of actually doing the work and is used to measure the cost of the time spent on the matter.  The current rates range between £150 and £350 per hour plus VAT depending upon complexity.

      ‘Care and conduct’ – this is an uplift based on the expense rate and represents factors other than time spent.  Commonly this is calculated at about 50% but it can be higher or lower, depending on circumstances, such as urgency.

      The ‘value’ element that reflects the responsibility for dealing with something of value that carries risk and importance. The value element of the charges divide into two parts:

      • The value of the deceased’s home
      • The value of the rest of the estate

      For small estates, or where executors prefer to obtain Probate personally, we offer a pre-application checking service that is charged on an hourly basis.

      Where the Solicitor is not appointed as Executor in the Will

      Home                                         0.5% of the interest of the deceased in the value of the home

      Rest of the Estate                1% of the value

      Where the Solicitor is Sole Executor/Joint Executor with Another

      Home                                         0.75% of the interest of the deceased in the value of the home

      Rest of the Estate                1.50% of the value

      Where we deal with an estate over £1 million net value we may reduce the value element so that the overall level of charge is fair and reasonable.

      Where there are available funds in the estate, our fees are deducted from the assets of the estate that we collect and are not normally payable by the Executors before the estate has the necessary funds available.  Where the estate is not in funds, we will render our account to the Executors.  We do not normally provide an itemised bill.  All our charges and some expenses are subject to VAT at the prevailing rate.

      Please note that the contents of this Guidance note should be read in conjunction with our Terms of Business.

      Purchase of Residential Property

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      Purchasing a Residential Property

       

      Introduction

      Conveyancing is the technical name given to the legal processes and procedures which solicitors and conveyancers adopt to effect the transfer and mortgage of land and property and the creation and transfer of leases of land.

      Although the processes can be complicated and time-consuming, it is our aim to provide you with a cost-effective and efficient service. and to report to you on various aspects of the transaction in plain English.  Even the most “straightforward” transaction contains technical aspects, which require understanding, experience and consideration and therefore we have prepared further guidance notes for our clients.

      The Proceeds of Crime Act 2002 and other Regulations dealing with money laundering require us to undertake various checking procedures in relation to identity and the sources and use of funds and assets involved in transactions.

       

      The Conveyancing Quality Protocol

      We are members of the Conveyancing Quality Scheme (CQS) and intend to follow the scheme Protocol unless you ask us not to.  It is the intention of the Protocol to make the transaction work more speedily and be as transparent as possible.  From time to time the Protocol requires information to be shared with others particularly in respect of timing and any delay; this is to assist in the efficient management of each transaction or chain of transactions.  We need your consent to share information on progress with other firms involved in the transaction.  This will not extend to any information you tell us you regard as private

       

      Our experience suggests that it is helpful to draw attention at the beginning of the transaction to the following areas: –

       

      Your Mortgage

      The market is large and a wide variety of products and offers may appear attractive to you.  Some will bind in other insurance products and you should evaluate all terms and conditions carefully.  Many Banks and Building Societies involved in the mortgage market are not independent but linked or tied to Insurance Companies.  At this stage, it is important for you to consider taking independent financial advice, which will take account of all your personal circumstances, before making any commitments

       

      Deposit

      On exchange of contracts it is usual for a buyer to pay the sellers solicitors 10% of the purchase price (less any preliminary deposit paid to Estate Agents).  The balance of the purchase monies is paid on the completion date.  If the cash deposit is not available please let us know as soon as possible.  We may be able to: –

       

      • arrange with the seller’s solicitors that you pay a reduced deposit; or
      • use all or part of the deposit being received on a related sale towards the deposit on your own purchase; or
      • arrange bridging finance.

       

      The funds must be paid to us in any of the following ways: –

       

      • By transfer from your bank account into the Firm’s client account
      • A Banker’s Draft
      • By your cheque drawn on a Building Society Savings Account
      • By your personal cheque

       

      We cannot accept cash or payments from third parties.

       

      All cheques/Banker’s Drafts must be made payable to this Firm.  Please note that a personal cheque will take up to five working days for clearance, and a Building Society cheque or banker’s draft requires three working days clearance.  If you wish to make a bank telegraphic transfer of funds, we will give you, on request, details of the Firm’s client account – but we will need funds to be credited to our account at least one day before completion.

       

      Please note that if we are not placed in funds in good time, the completion of the transaction may be delayed and you may incur interest charges at penalty rates.

      The Lender’s mortgage advance monies will be released to us direct either by cheque or by telegraphic transfer through the CHAPS or BACS banking systems.

       

      Because of the critical timing of completion and a history of problems with late receipt of mortgage funds, we ask to be put in funds by lenders at least one working day before the date of completion.  This means that for a Monday completion, we will ask for the funds to be credited to our account the preceding Friday.   We ask you to be aware of this, as many lenders will charge a borrower interest from the day mortgage monies are released by them.

       

      Survey and Searches

      The general law provides that for the buyer of a property, the maxim applied is “CAVEAT EMPTOR” or “BUYER BEWARE!”

       

      1. Generally, therefore, the seller will not give any warranty about the condition, fabric or structure of the property, nor will the seller be liable to you if there are defects in the property. The cost of remedying defects will be the buyer’s not the seller’s and we stress how important it is that you satisfy yourself as to the state and condition of the property you are buying.  We advise in virtually every case that a private structural survey is carried out by a professionally qualified surveyor or other experts.
      2. Please ask your surveyor to contact us before the survey is carried out so that we can pass on any relevant information we may have, for example in relation to building works known to us or a lease.

      It is also helpful to us to see the surveyor’s report as such reports often highlight points which arise from a critical inspection of the physical aspects of the property.

       

      1. If you obtain mortgage finance, the lender may arrange for the property to be inspected (normally after your status as a borrower has been approved). Generally, the purpose of the lender’s survey is only to establish that the property is adequate security for the amount of the proposed loan.

       

      Please note that there may be defects in the property, which are not revealed by the Lender’s valuer, and there may be omissions or inaccuracies in the report which do not matter to the Lender, but which would matter to you.  We do not recommend that you rely on the Lender’s report in deciding whether to proceed with your purchase or not.  We recommend that you obtain a more detailed and fuller report on the condition and value of the property to enable you to decide whether the property is suitable for your purposes.

       

      In many cases, the price at which the lender values the property for security purposes is less than the price agreed between buyer and seller.

       

      Many lenders’ surveys call for the borrower to obtain specialist reports, the results of which either require approval by the lender and/or require the work recommended by specialists to be undertaken by the borrower before or after completion.  The extent of works required may be so significant that the lender will not make an offer of mortgage, or possibly part of the mortgage advance will be retained until some or all of the work has been carried out to the lender’s satisfaction.  The property will be re-inspected and all or part of the retention released.

       

      You should be entitled to see a copy of the survey report prepared for the Lender, and you may then consider that a full structural survey is not required.  We do urge you, however, to consider your decision carefully, taking into account the age, location and type of property you intend to purchase.  Without the result of a full structural survey you may be in difficulty if you wish to renegotiate the price and, as stated earlier, once you have purchased the property and defects are then found, you will have little recourse to the seller and you may find problems arising when you want to sell.   It is unlikely that the central heating system, drains or wiring will be tested in a simple survey, and you may need further advice about this.

       

      There may be guarantees for work carried out to the property.  We may be able to arrange for the transfer of the benefit of the guarantee to you by the seller.  However, unless you instruct us to, we do not make any investigation into the nature of the guarantee, its effectiveness or otherwise, or the company or person who gave the guarantee, who may no longer be trading.  Please raise this with your surveyor.  Some companies charge a registration fee for updating their records.

       

      Searches

      In order to protect both you and your Lender, our policy is to check the bank account details of your seller’s conveyancer using Lawyer Checker at a cost of £10 plus VAT.   This expense is part of our general expenses as indicated in our fee estimate.   Unfortunately, criminals aren’t just stealing the identities of individuals, there are a number of cases where criminals are stealing the identity of legitimate legal firms in order to steal house purchase funds and we want to protect you from this threat.  Lawyer Checker allows us to check the account number of the seller’s conveyancer’s firm against a database of previous conveyancing transactions.  The results provided by the service will help us to better assess the risk associated with sending your money but provides no guarantee.   Unless you specifically authorise us not to do this check, we will carry it out and include the cost in our bill.

       

      The term “property searches” covers a number of different searches offered by Local Government, Government Agencies, Utilities and commercial organisations.  The aim of any search is to provide you with information about any potential restrictions, benefits and conditions which may affect the property and ultimately your use and enjoyment of it. However, the searches we carry out are not exhaustive.

       

      There are over 60 different searches available, although many are specialist searches which are relevant only to a small minority of properties.  They cover everything from financial charges to environmental and flood information.  We refer below to a selection of different searches which are typical for a property transaction.

       

      Local Authority Search

      As you would expect, local councils maintain a large amount of data relating to properties in their area and searches of the records provide fundamental information.  However, a search made at the Local Authority reports only on matters relating to the subject property.  It does not tell you anything about neighbouring properties or what may be proposed for adjoining land or land use policies.  Each individual property requires an individual search.  We, therefore, commission a ‘Plansearch’ report. (See below)

       

      When a “charge” is created against a property or piece of land, it is recorded in the Council’s Local Land Charges Register.  The register contains details of matters, which upon completion of a sale will be binding and enforceable against you, the new owner.

       

      The register is divided into 12 parts and all “matters” on the Register are referred to as “charges”.  Please note that the term “charge “ is generic and relates to non-financial as well as financial matters.

       

      Some Local Land charge examples are:

      Conservation Area and Tree Preservation Order – these orders help preserve the appearance of the general area but they may restrict an owner’s ability to carry out work without the specific permission of the local council.  All trees within a Conservation Area are protected whether or not they are covered by a specific Tree Preservation Order – they cannot be lopped, topped, cut down or damaged without the consent of the Council.

       

      Smoke Control Order – arising out of the fogs of the 1950’s, properties in Smoke Control Areas can only burn smokeless fuel and are affected by other restrictions.  Most of London is covered by a Smoke Control Order.

       

      Planning Permissions – you need planning permission from the Council for a variety of home improvement works.  If a house has been extended or even has a conservatory, it is important to check that the relevant permissions, Building Regulation consents and Completion Certificates (where required) have been obtained.

       

      Financial Charges – relates to work carried out on the property or land by the Local Authority or appointed/approved body.  The Council may need to carry out works to make a property secure or for health and safety reasons e.g. in the case of a dangerous structure.  In some instances, the Council is able to recover the money spent from the property owner.  Prudent buyers will want to ensure that any outstanding financial charges are paid before they complete on the property.  If these are not paid, the new owner takes over the debt.  These charges do not cover “personal” debts such as non-payment of council tax.

       

      Listed Building Notification – most buildings built before 1840 will be listed, but some more recent buildings may be listed by virtue of their “special value”.  In effect, the listing means that they appear on a list of Historic Buildings held by English Heritage.  It is unlawful for any person to carry out any works often internally and externally without the permission of the Council.

       

      The scope of the search in relation to roads covers proposals for roads within a 200-metre radius.  We also recommend you personally visit (or search on-line) the Planning Department of the Local Authority to enquire whether there are any Planning Applications pending/granted/refused in relation to surrounding properties, or whether there are any road or other transport proposals in the planning stage, details of which have yet to be made known generally.

       

      Please note:

       

      1. The search only relates to the individual property address searched against
      2. The search does not report on other neighbouring or adjoining properties
      3. The search does not report on speculative proposals that have not been formally commenced
      4. The search does not reveal other neighbourhood issues and is not a general report on the surrounding roads and area.
      5. that the information given on a search is valid only at the date of the certificate and gives no ongoing protection. In a long-running transaction, it may be necessary to make another search before the matter finally proceeds to an exchange of contracts.  Most lenders insist that the Local Authority Search result is not more than 2/3 months old at the date of exchange or more than 6 months old at completion.  In the case of new build property when the projected completion date is many months away, this may mean making 2 or 3 searches during the transaction.

       

      We are sometimes asked to carry out a personal local authority search.  There are a number of commercial organisations who offer to carry out a search of all publically held local authority records.  Whilst those companies can inspect the local land charges registers, only a Council or Local Authority can legally issue and certify an Official Search Certificate.  Please note that some lenders will not accept a personal search, or will also require search insurance, or have strict rules about who may carry out such a search.

       

      NB: –

      • There is an additional cost of usually between £150-£250, plus VAT, and search insurance premium, if required, and
      • Personal searchers are not usually given access to all the information, which would be revealed on a postal search. The result of a personal search may therefore be inaccurate or incomplete.  In addition, Local Authorities will only accept liability for the result of the searches they produce and not for a personal search.

       

      Plansearch Plus

      This search provides:

      • details of applications made for planning permission for development and alterations over the last five years (which is the normal life span of most applications) relating to the subject property and close by and
      • a summary of the Local Authority’s policies for future development and land use within a 500m radius of the property, and
      • Floodplain information, using the Environment Agency’s assessment to identify whether the property or the surrounding area in within either a natural river floodplain or a coastal floodplain.
      • Details of local amenities and other statistical information.

       

      Drainage Search

      Many homeowners do not realise that in buying a new home, they also acquire a responsibility for the repair/maintenance of drainage pipe work that runs under, over, through or close to the property.  This search is carried out to establish the whereabouts of the public drainage runs and therefore the point at which the homeowner’s responsibility ends.

       

      The following brief guide is intended to be helpful but is not a statement of the current law:  There are three main terms used to describe underground drainage pipes.  The description will usually determine who is responsible for the repair and maintenance of the pipe in question.

       

      A drain is a pipe that carries waste-water (foul or surface water) from only one property.  Such a drain is the sole responsibility of the owner(s) of that property for its full length up to the point where the pipe connects to another pipe.  At this point the drain becomes a sewer.

       

      There are two types of sewer:

      Private Sewer – a private sewer is any pipe which takes waste-water from more than one property, but which is not a public sewer.  A private sewer is usually the joint responsibility of each of those properties that drain into it.

       

      This responsibility continues up to the point where the private sewer (including the connection) joins a public sewer, after which the responsibility then changes to the Sewerage Undertaker.  Please be aware that this may mean in practice that one property owner may be responsible for the repair and maintenance of drainage pipes that are beneath land owned by someone else, such as a neighbour or even the local authority.  Unfortunately, it is often difficult to obtain accurate information from drainage plans showing drains and private sewer routes and we advise you to consult with your surveyor to establish the accurate position, which may be apparent from the position  ‘on the ground’.

       

      Public Sewer – a public sewer is a pipe that is the responsibility of the Sewerage Undertaker for the area. The waste-water from every property connected to mains drainage will eventually flow into a public sewer before reaching its final treatment point.  Most public sewers run beneath the roadway and not private property.

       

       

      Environmental Searches

      There are increasing health concerns associated with living near or on landfill sites.  There are over 250,000 landfill sites, which have been identified, and a further 400,000 past industrial sites that no longer exist and may have contaminated the ground.  Some of these sites have already been built upon to provide new housing.  The Local Authority Search will not necessarily reveal any registered landfill site or waste disposal dump in the area.  It is unlikely to point out the risks of contaminated land, brownfield sites, toxic emissions, flooding, radon gas or radioactivity.  For these reasons, we make a specialist environmental search. We will send you a copy of the search result so that you may take the appropriate specialist advice.

       

      However, the report can only be authoritative and relied upon in respect of the registers which it searches. That may not include all available information or indeed all available records.  Reports are available from a number of sources and we review from time to time the supplier of such reports.  An environmental surveyor may also be needed to interpret the results of a search where a “referred” result is given.  We are not experts in such matters and are not able to interpret the result of searches or advise upon appropriate action that you might take.  Notwithstanding this, we believe that the search reports do contain a good deal of historic and other information which may well be of interest to you across a wide range of matters as distinct from those which may affect value, saleability or require action on your part as the owner of the property.

       

      Land Registry Search

      If the property is registered at the Land Registry, we will make a search of all the Registers to check that no adverse entries have arisen.  The search result will expire after 21 days and may need to be renewed.

       

      Unregistered Land Searches – Land Charges Register

      Similar searches will be made.  Again, these have an expiry date and may need to be renewed.

       

      Bankruptcy Searches

      Every lender requires us to carry out a search for bankruptcy against the borrowers.  If you have any reason to suspect that an action for bankruptcy has been or is about to be brought against you, you MUST tell us immediately.  An entry against you in the register will prevent us from completing your purchase until or unless it is removed/resolved.  There are many names, which are popular, e.g. John Smith, and a search may produce many entries against a name, none of which relate to you.

       

      We are under an obligation to Lenders to fully investigate any entries revealed to ensure that none of the entries relate to you. If our search reveals entries, you will be asked to check all the entries and provide evidence that none of the entries relate to you.

       

      If any of the entries do relate to you, you MUST tell us immediately.  If we are unable to certify that none of the entries relate to you, we have to report this to your lender who as a consequence may withdraw their mortgage offer.

       

      If, after completion, it does become apparent that one or more of the entries do relate to you, then your Lender will have both criminal and civil remedies against you.   If you have at any time changed your name by Deed Poll or otherwise, you are required to let us know.

       

      Other searches

       

      Coal and Tin/Clay/Brine Mining – past or current mining activity can affect property and in coal mining areas a mining search is essential.  A house may have been built over or near to old coal mineshafts and opencast mining can have an environmental impact.  The Coal Authority holds and maintains the national coal mining database and its Mining Reports Service provides a property specific service for any property in England, Wales and Scotland.  A mining report enables you to determine whether a property has been subject to a coal mining related subsidence damage notice or claim since 1984.  It also proves information on past, current and proposed underground coal mining activity along with details of any recorded old coal mineshafts and licences for future mining.  Whilst coal mining may affect a property due to subsidence, owners of property damaged by coal mining may be entitled to remedies including repair and depreciation compensation payments under the 1991 Coal Mining Subsidence Act.

       

      The Coal Authority also provides a Ground Stability Report and information about whether the property is at risk from natural subsidence hazards.

       

      China Clay – this search will reveal whether the property is likely to be affected by clay deposits.

       

      Limestone Mining – a limestone mining search will reveal whether the property is likely to be affected by subsidence

       

      Transport searches

       

      British Waterways – this search should be made if you are considering purchasing a property in close proximity to a river, stream, and canal and particularly of any of those mentioned pass through the property boundary.  The results will reveal the riverbank ownership, drainage rights, fishing rights and licences – such as those relating to taking or diverting of water.

       

      London Underground – they carry out railway searches for properties affected by existing and proposed Tube services or by proposed transit, tram and rail schemes.  They can also provide advice is a property is affected by schemes for which Transport for London (TFL) is seeking compulsory purchase powers.

       

      Williamson Tunnel – a series of “tunnels” located to the east of Liverpool City centre in an area known as Edge Hill.

       

      Port of London Authority – regarding mooring licences relating to the Port of London and the River Thames.

       

      The Highways Agency – this search will reveal if there are any trunk road/motorway proposals that could physically affect the property.

       

      Chancel repair – this search will reveal whether a property is liable to pay a contribution towards the repairs of the local parish church.  The rights of Church tithes date back to 1189 and they affect some 5200 pre-Reformation churches across England and Wales.  A transitional order made under the Land Registration Act 2002 preserved the status of these repairs until 2013.  After that time, the liability is only binding on successive owners or registered land if it has been protected by an entry in the Register kept by the Land Registry.  Owners of unregistered land will not be protected as a register entry is not possible.

       

      Common Land and Village Green – a Commons Registration search will reveal whether land adjoining or adjacent to the property being purchased is affected by any of the provisions of the Commons Registration Act.  This may provide the owners with rights of access to their property and it may also mean that other third parties have access or other rights.

       

      Insurance

      Under the Standard Conditions of Sale, the risk for insurance passes from seller to buyer on exchange of contracts or on completion depending on the terms of the sale contract.  We shall advise you on this.  The buildings insurance must be adequate to cover the fabric of the property and reinstatement costs.  If you have a mortgage, the lender will normally arrange insurance, but you must check with the lender to satisfy yourself both as to the sum insured and the risks covered.  You may wish to effect separate insurance from your lender.

       

      We draw to your attention that standard buildings insurance policies have certain exclusions.  The policy terms and conditions should be carefully examined so that you are fully aware of any limits to cover.  You should note the Insurer could disclaim liability if you do not comply with the terms and conditions of the policy, or fail to give an accurate signed proposal with full disclosure on all relevant matters.

       

      Please note that most Lenders have strict requirements on what is acceptable in the context of insurance policy terms and conditions, which they do not arrange.  For example, the policy must:

       

      • Be index-linked
      • Cover at least the amount specified in the mortgage offer, or if the property is part of a larger property i.e. a flat, the total sum insured for the building must be not less than the total number of flats multiplied by the amount stated in the mortgage offer.
      • Have an acceptable excess
      • Cover these risks: fire, lightening, aircraft, explosion, earthquake, storm, flood, escape of water/oil, riot, malicious damage, theft/attempted theft, falling trees, branches and aerials, subsidence, heave, landslip, collision, accidental breakage of glass/sanitary ware/underground services.
      • Cover Public Liability to third parties.

       

      If there is a history of subsidence or exclusion for subsidence cover, this must be considered separately.

       

      Contents – you will need to arrange separate cover for your personal belongings as well as fixtures fittings and furniture that come within a contents policy.

       

      Empty property – please note that standard insurance provisions may not apply to unoccupied property or property that is left vacant beyond a given period.

       

      If the property is leasehold the landlord may insure the property under a block policy.  In this case, you may still have to arrange your own contents insurance.

       

      We remind you that if you are not purchasing with the assistance of a mortgage you must arrange both buildings and contents insurance yourself.

       

      Ownership

      If you intend to buy property jointly with one or more others, you need to know that there are various ways in which you can hold the property in combination with others.  We explain the options for partnership and for spouses/civil partners and others in more detail in a separate note.

       

      It is very important for you to tell us if any other person over the age of 17 years will be living with you, or will make a contribution to the purchase price or to the mortgage payments.  We can advise you on the consequences of such contribution, and if required, record the legal position.

       

      If you are purchasing with a mortgage, such a person is required, after receiving independent advice from a solicitor not associated with this firm, to sign a document, which consents to the mortgage, and enables the mortgage to proceed.

       

      Planning – Alterations, Building Work and Extensions

      The seller or previous owners may have carried out development by alterations or extensions to the property which required Local Authority planning permission and/or Building Regulation consent and these approvals may not have been obtained.

       

      If you or your surveyor believe that work/change of use has occurred at the property, or you wish to use the property or any part of it for anything other than your own personal use and occupation, you must tell us so that we can investigate the planning position.

       

      This is very important as even where works were carried out some years ago, it may be possible for the Local Authority to take action to require –

       

      • the new building(s) to be taken down altered or supplemented by other work, and/or
      • the property returned to a previous authorised use

       

      We can provide you with copies of any planning permission and/or building regulation approval documentation received by us.  You should review these with your Surveyor or take other advice to verify that the works carried out complies with the approvals granted.

       

      We do not accept responsibility for the absence/incomplete/wrong implementation of any permissions or breaches of the terms of such approvals.

       

      Council Tax Banding

      Some improvements to the domestic property can increase the value above one threshold and move it into a higher Council Tax band.  So that property owners were not dissuaded from improving their property, it was decided when Council Tax was introduced in 1993, that the council tax band on a dwelling would not be increased until there was a change of ownership of the property.  It is therefore important that we are advised of any such improvements so that we may contact the local Council Tax Listing Officer to try and find out whether the listing will be reviewed after the sale or not.  We will not be able to ascertain whether the review will change the banding.  As there have been no general revaluations, the system is now vulnerable to changes.

       

      Matters after Completion

      The legal processes and procedures do not end on the day of completion. For a period of 9 months we deal with various matters relating primarily to Stamp Duty Land Tax and Land Registration.  Examples of the types of non-routine items that can arise are: –

       

      • Lender’s queries
      • Land Registry requisitions
      • Returned Insurance premiums
      • Refunds of mortgage instalments and cancellation of direct debits.
      • Invalidly signed documents
      • Notice problems
      • Inland Revenue Stamp Duty Land Tax returns and enquiries
      • Lender delays in producing discharge documents

       

      Therefore, we normally retain at completion a sum of between £200 and £300 to cover the cost of any work carried out on your behalf after our bill is rendered, and to pay any expenses.  This item will be shown on our Cash Statement.  The balance of this retention will be paid on clearance of our ledger account balance, once all matters are finalised.  This usually occurs in two stages.  The first after 4-6 weeks from completion when subject to completion for payment of Stamp duty land tax the land registration will usually be complete.  The second period is after 9 months when the Revenue period for raising a formal inquiry in respect of Stamp duty land tax expires.  Please note that if an inquiry arises or any additional stamp duty land tax is assessed this will involve you in additional costs and these matters are not covered by our estimates for the transaction or by our cash statement or final invoice.

      Powerpoint on Lasting Powers of Attorney

      150 150 mattd
      Lasting Power of Attorney Kagan Moss

      Lasting Power of Attorney

      1000 667 mattd

      What is a Lasting Power of Attorney?

      A Lasting Power of Attorney (in this note called ‘LPA’) is a legal document to enable you (the ‘donor’) to appoint one or more individuals you trust (although you may appoint only one person we use the expression ‘attorneys’ in the plural in this note) to make decisions on your behalf.

      The main purpose of an LPA is for the appointed persons to make decisions if you do not have the mental capacity to make decisions yourself.

       

      ‘Mental capacity’ means the ability to make a decision.

       

      A person with mental capacity has at least a general understanding of the decision they need to make, why they need to make it and the likely consequences.  Although sometimes people are able to make some kinds of decisions they do not have the mental capacity to make others.

      An LPA enables you to control the decisions that affect you, even when they are made by someone else on your behalf.

      An LPA allows you to plan and decide what decisions you want to be made on your behalf and who will make those decisions. You can set boundaries for those decisions.


      Types of LPA

      Property and Financial Affairs

      This type of LPA is suitable to use for matters relating to your money and property.  This will cover your bank accounts, other savings, assets and liabilities.  You do not have to own property or have a lot of money for this type of LPA to be useful or necessary.

      It can be used on your behalf, with your consent, as soon as it is registered.  However, you can state that it can only be used if you do not have mental capacity.

      Health and Welfare

      This LPA covers your personal and health care. This type of LPA can only be used if you do not have the mental capacity to make decisions yourself.

      You can use it to let your attorneys decide about your daily routine, such as what you wear and eat, moving into a care home or getting help from social services.

      You can also give your attorneys the power to refuse or agree to any medical treatment you may need if ever you are unable to make that decision. If your attorneys do not have that power, doctors would decide.

      Your attorneys can only make decisions that you have given authority for in your LPA.  For example, if your LPA is for your Property and Financial Affairs, your attorneys cannot make decisions about your care or where you live.  If your LPA is for your Health and Welfare, they cannot make decisions about your money.

      Protecting your interests

      Your attorneys must always act in your best interests and follow any instructions you give concerning decisions that may need to be made.

      Attorneys must follow the Mental Capacity Act Code of Practice.

      This can be found on https://www.gov.uk/power-of-attorney/overview together with further information about making a LPA.

       

      The principles are that your attorneys MUST:

      1. Assume that you can make your own decisions unless they establish that you cannot.
      2. Help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have taken those steps without success.
      3. Not treat you as unable to make a decision simply because you make an unwise decision.
      4. Act and make decisions in your best interests when you are unable to make a decision.
      5. Consider whether they can achieve the same result without restricting your rights and freedom before making a decision or act for you.

      Before you begin

      Here are some questions to ask yourself:

      • Who will be my attorneys?
      • How many attorneys do I need?
      • Should I have replacement attorneys?
      • How should my attorneys make decisions on my behalf? Should they act together or individually, or a mixture of the two?
      • Do I want to give my attorneys any instructions about how to make decisions?
      • Do I want to state any preferences about my beliefs and values to guide my attorneys’ decision-making?
      • Who is the independent person – the certificate provider – who can sign my LPA to confirm that you understand it and no one is forcing me to make it?
      • Are there any ‘people to notify’ about my LPA when it is about to be registered? These people are an optional safeguard who can raise concerns about your LPA before it can be used.

       

      Section 1 – Type of LPA

      Which type of LPA you are making?

       

      Section 2 – Details of the Donor

      An LPA is for one person only. You can make an LPA if you are at least 18 years old and you have the mental capacity to do so

      Bankruptcy does not affect a Health and Welfare LPA.  But for a Property and Financial Affairs LPA there are rules for bankruptcy and debt relief orders.

      So if you are bankrupt or subject to a debt relief order, you can make, sign and register a Property and Financial Affairs LPA.  However, your attorneys will not have power over all of your property. If you are in this situation you should consider obtaining legal advice before you make your LPA.

      If you become bankrupt or subject to a debt relief order after your Property and Financial Affairs LPA is made or registered, it will be cancelled.

      If an attorney becomes bankrupt or subject to a debt relief order, they can no longer be your attorney under your Property and Financial Affairs LPA.

      Names

      If you use more than one name or used to be known by a different name, you should make a list of these. This will help your attorneys deal with banks and other organisations on your behalf if your LPA is used.

       

      Section 3 – When can a LPA be used

      Health and welfare – this takes effect if you do not have the mental capacity to make decisions and the LPA is registered.

      Property and financial affairs – you decide whether you want this to take effect when it is registered or when you do not have mental capacity.

       

      Section 4- Who are your attorneys (and replacement attorneys)?

      • You can have one or more attorneys
      • Attorneys must be 18 or over
      • Attorneys must have mental capacity – the ability to make decisions
      • An attorney must not be bankrupt or subject to a debt relief order

      Many people choose family members, friends and other people they trust with no legal background. Attorneys do not need to be solicitors.

      You can ask anyone to be your attorney, including:

      • your wife, husband, civil partner or partner
      • a family member
      • a close friend
      • a professional, such as a solicitor

      Make sure that each person agrees to be your attorney before you name them in your LPA.

      An attorney can no longer act on your behalf if they:

      • lose mental capacity
      • decide they no longer want to act as your attorney (known as ‘disclaiming their appointment’)
      • were your wife, husband or civil partner but your relationship has legally ended and you have not stated in your LPA restrictions that they can continue
      • become bankrupt or subject to a debt relief order and were an attorney for a property and financial affairs LPA

      If you have said that your attorneys must act together for some or all decisions, they will not be able to make those decisions if one dies or can no longer act for you for another reason. If you cancel your LPA, your attorneys can no longer act on your behalf.

      Questions to ask yourself

      • How many attorneys do you want to appoint?
      • Are these people willing to act? Have you discussed your LPA fully with them?
      • Do they understand the role and responsibilities of an attorney?
      • Do you trust them to act in your best interests?
      • Do they know you, your beliefs and your preferences well enough to make decisions for you?
      • Do they have the skills to act under your LPA and do they manage their own affairs well? For example, are they good with money?

      How attorneys make decisions

      If you have more than one attorney, you must decide whether you want them to make some or all decisions on their own or whether they should agree on some or all decisions unanimously. The legal terms are ‘severally’ and ‘jointly’.

      Your options are:

      1. Jointly and severally – Any action taken by any attorney alone is as valid as if they were the only attorney.  It is possible for one attorney to make decisions for you without asking your other attorneys.
      2. Jointly – Your attorneys must always make all decisions together. They must agree unanimously and they must all sign any relevant documents. Choose this option if you want your attorneys to agree on every decision, regardless of how large or small it is.
        With this option:
        > If your attorneys cannot all agree on a decision, it cannot be made
        > If your attorneys cannot work together, your LPA will not work
        > If one attorney can no longer act or dies, your LPA will stop working, unless you have appointed replacement
      3. Jointly for some decisions, and jointly and severally for other decisions – Your attorneys must make certain decisions together and agree on them unanimously – but they can make other decisions individually. If you choose this option you must clearly state which decisions your attorneys should make together and agree unanimously: that is, when they should act jointly.
        With this option:
        > If your attorneys cannot agree on a joint decision, it cannot be made
        > If one attorney can no longer act or dies, your remaining attorneys will not be able to make any of the joint decisions, unless you have appointed replacements

      Questions to ask yourself

      • Do you trust each of your attorneys to make decisions in your best interests?
      • Do your attorneys know what you would decide if you could?
      • What might stop your attorneys working together? Do they get on? What would happen if they fell out?
      • Even if your attorneys can make most decisions on their own, are there some big decisions that you want them to agree on?
      • Do you want your attorneys or replacement attorneys to make all their decisions together and agree everything unanimously?
      • Are you happy for your attorneys to choose whether they make decisions together or individually?
      • Do your attorneys understand how you would like them to make decisions?
      • Do you know what will happen if one attorney cannot act any more?

      Section 5 – Replacement Attorneys

      A replacement attorney will step in if one of your attorneys dies or cannot longer act.  A replacement attorney:

      • Cannot temporarily stand in for an attorney who is still able to act (for example, while the first attorney is on holiday)
      • Cannot replace a replacement attorney

      A replacement attorney cannot replace another replacement attorney.

      Protecting your LPA

      Having replacement attorneys means that your LPA should still work if an original attorney can no longer act on your behalf.  Without replacements:

      • if you have only one attorney and that attorney can no longer act for you, your LPA will no longer work
      • if you have attorneys who must make all or some decisions together (‘jointly’) and one attorney can no longer act, the rest will not be able to make those joint decisions

      If your attorneys have to make all or some decisions jointly and one can no longer act, your replacement attorneys make those joint decisions instead. Both your remaining original attorneys and your replacements can make any decisions that do not have to be made jointly.

      Questions to ask yourself

      • Do you want replacement attorneys? How many?
      • Would it be better to choose several attorneys to act jointly and severally instead of just one attorney?
      • Do the people you are considering as replacement attorneys understand that it may be years before they’ll need to act for you, if at all?
      • Would you want new attorneys to replace original ones in a particular order? (This is only possible if you have said that attorneys should make decisions jointly and severally.)

      Section 6 – Who is the certificate provider?

      A certificate provider is a person who confirms that you understand your LPA and are making it of your own free will.

      They must be 18 or over, and should be someone who would speak out if anything was wrong. You can choose either:

      • a person who has known you well personally for at least two years, or
      • a person with relevant professional skills and expertise

      There are some people who cannot be your certificate provider:

      • any of your attorneys or replacement attorneys for this or any other LPA or enduring power of attorney
      • a member of your family or of any of your attorneys’ families – including spouses, civil partners, in-laws and step-relations
      • an unmarried partner, boyfriend or girlfriend of you or any of your attorneys
      • your business partner or any attorney’s business partner
      • your employee or any attorney’s employee
      • anyone running or working for a care home in which you live, or a member of their family
      • anyone running or working for a trust corporation appointed as an attorney in your LPA

      Section 7 – Who should be notified about your LPA?

      It is a good idea to let people know when you apply to register your LPA.  You can notify up to 5 people of your choice.

      These people have a chance to raise any concerns before your LPA is registered, as a safeguard for you.

      However, you do not have to include any ‘people to notify’ for your LPA to be valid.

      How people are notified:

      Just before we apply to register your LPA, we will send each of the people to notify a form to let them know about it.

      Where there are reasons to object to the LPA

      There are rules about the sorts of concerns people can raise. They cannot object to your LPA simply because they do not like it. People can only object to an LPA being registered on ‘factual grounds’ or ‘prescribed grounds’ and they have 3 weeks to object to the OPG from the date they were notified.

      Factual grounds

      A person to notify can object to an LPA’s registration if:

      • you or an attorney has died
      • you and an attorney were married or had a civil partnership and your relationship has legally ended
      • an attorney does not have the mental capacity to be an attorney
      • an attorney has decided to stop acting (known as ‘disclaiming their appointment’)
      • you or an attorney is bankrupt, interim bankrupt or subject to a debt relief order (this only applies to property and financial affairs LPAs)

      Prescribed grounds

      A person to notify can object to an LPA’s registration if:

      • the power meant to be created by the LPA is not valid – for example, if they do not believe you had the capacity to make an LPA
      • the power created by the LPA no longer exists – if you, the donor, revoked it at a time when you had mental capacity
      • there was fraud or undue pressure on you to make the LPA
      • an attorney proposes to behave in a way that would go beyond their power under your LPA or would not be in your best interests

      Additional information that can be added

      If you do not add any additional information your attorneys will be free to make decisions they think are right.

      Instructions

      These are things your attorneys must or must not do when making decisions for you.

      Use words such as ‘must’, ‘shall’ and ‘have to’ when writing instructions for your attorneys.

      Preferences

      This means things you would like your attorneys to think about when acting under your LPA: your wishes, beliefs and values.  Your attorneys do not have to follow this guidance but they should keep it in mind when making decisions for you.

      Using words such as ‘prefer’ and ‘would like’, makes it clear that you are giving your attorneys advice rather than instructions.

      Why you should register your LPA

      Your attorneys can only use your LPA to make decisions on your behalf after the OPG has registered it and sent it back to you officially stamped.

       

      LASTING POWERS OF ATTORNEY

       

       

      What is a Lasting Power of Attorney?

       

      This is a legal document that lets you appoint one or more persons to make decisions about your welfare, money or property.  It can be used at any time when you are not able to make your own decisions.  The person you appoint should be someone you trust, who is called an ‘Attorney’ – that person will make decisions on your behalf.  The decisions will be made when you no longer wish to make those decisions or without the mental capacity to do so.

       

      Someone can lack mental capacity if they have had an injury, or suffer from a disorder or condition that affects the way their mind works.  This could mean they have difficulty in making decisions all of the time, or that it might take them a long time to make the decision.  There is guidance as to how mental capacity is assessed.

       

      The assessment should be made at the time a particular decision needs to be made and starts with the assumption that the person has the capacity to make the decision in question.

       

      An assessment should never be simply based on:

      • Their age
      • Their appearance
      • Assumptions about their condition
      • Any aspect of their behaviour.

       

      There are several things to be considered when assessing if a person can make a decision:

       

      • If the person understands what decision they need to make and why they need to make it
      • If the person understands what might happen if they do or do not make the decision
      • If the person can understand and weigh up the information relevant to making the decision
      • If the person can communication their decision (by talking, using sign language or any other means)
      • If the person can communicate with help for a professional (such as a speech and language therapist)
      • If there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)

       

      One must not treat the person as unable to make a decision just because they make a decision that one does not agree with.  The Mental Capacity Act 2005 Code of Practice gives more detailed guidance on how to assess someone’s ability to make decisions.  You can download a copy from www.gov.co.uk

       

       

      If you need to make decisions for someone else

      Any decision you make for someone who lacks capacity must be made in that person’s best interest.

       

      When working out what is in someone’s best interest, all relevant circumstances must always be considered and:

       

      • Every effort should be made to encourage and enable the person who lacks the capacity to take part in making the decision
      • Whether there is a chance that the person will regain the capacity to make a particular decision in the future
      • The person’s past and present wishes and feelings, beliefs and values
      • The views of other people who are close to the person who lacks capacity as well as the views of an Attorney or Deputy

       

      There are two main ways that one can make a decision for someone else:

       

      • As someone’s Attorney under an Enduring or Lasting Power of Attorney document
      • Being a Deputy appointed by the Court of Protection

       

      These are legal arrangements and the person cannot fulfil these roles without agreement from the Court of Protection or the Office of the Public Guardian.  Each of these roles has responsibilities and duties for the Attorney or Deputy on behalf of someone else.

       

      More information for Donors and Attornies

       

      The LPA is a legal document that someone (the Donor) makes using a special form.   It allows that person to choose someone now (the Attorney) that they trust to make decisions on their behalf at a time in the future when they either lack the mental capacity or no longer wish to make those decisions themselves.

       

      The decisions could be about the Donor’s Property and Financial Affairs or about their Health and Personal Welfare.

       

      Making an LPA is the only way to make plans for a time in the future when you may lack the capacity to make decisions for yourself.  An LPA can only be used after it is registered with the Office of the Public Guardian.

       

      There are two types of LPA:

       

      The Property and Financial Affairs Lasting Power of Attorney

      A Property and Financial Affairs LPA allows the Donor to appoint an Attorney to manage their finances and property whilst they still have capacity to make decisions for themselves.   For example, it may be easier for them to give someone the power to carry out tasks such as paying their bills or collecting their benefits or other income.

       

      This might be easier for lots of reasons: the Donor might find it difficult to get about or to talk on the telephone, or might be out of the country for long periods of time.

       

      Alternatively, the Donor may include a restriction that the LPA can only be used at a time in the future when they lack the capacity to make decisions for themselves for example, due to the onset of dementia in later life or as a result of a brain injury.

       

      An Attorney will not be able to make decisions about a Donor’s personal welfare unless they have also been appointed as a Personal Welfare Attorney using a separate LPA.

       

      The Health and Personal Welfare Lasting Power of Attorney

       

      A Personal Welfare LPA allows the Donor to appoint an Attorney to make decisions on their behalf about their health and personal welfare.

       

      A Personal Welfare LPA can only be used when the Donor lacks the capacity to make these decisions for themselves.

       

      An Attorney will not be able to make decisions about a Donor’s property and financial affairs unless they have also been appointed as a Property and Affairs Attorney using a separate LPA.

       

      A Lasting Power of Attorney is different to a short form Power of Attorney and an Enduring Power of Attorney.  We can advise you on the differences between these documents.

       

      Restrictions and/or conditions

      An LPA may contain restrictions and/or conditions that place limits on the decisions the Attorney can take, for example, he or she may only be allowed to make decisions about where the Donor lives or the attorney may not be able to sell the Donor’s house.  The Attorney must adhere to these restrictions and conditions.

       

      The Donor may also talk to the attorney about their wishes and feelings and may also include guidance in their LPA to assist the attorney when making decisions in their best interests.  The Attorney should take account of this guidance when making decisions for them.

       

      Who can make an LPA?

      Anyone aged 18 or over, with the capacity to do so, can make an LPA.  You cannot make an LPA jointly with another person; each person must make his or her own LPA.

      Who can be an Attorney?

      This depends on the type of LPA that the donor is making.  If the donor is making:

       

      • A Personal Welfare LPA – then anybody over the age of 18 can be an Attorney as long as their details are correctly written on the LPA form;
      • A Property and Financial Affairs LPA – then anybody over the age of 18 can be an attorney. However, the proposed attorney cannot be bankrupt when the donor signs the LPA form.  You should also note that if the attorney becomes bankrupt in the future, this could result in the LPA being cancelled if it has been registered with the Office of the Public Guardian

       

      If you are unsure whether someone you wish to appoint can be an Attorney under an LPA please ask us for advice.

      What it means if you have been asked to act with another attorney

      The Donor may wish to appoint you to act with one or more other Attorneys and can appoint you to act in different ways.  You can be appointed to act:

       

      Together

      This means that all attorneys appointed in the LPA must agree on a decision or all attorneys must sign a relevant document.  For example, all attorneys appointed together would have to agree where the donor was to live.

       

      Appointing attorneys to act together is sometimes used as a safeguard by the donor.

       

      However, appointing several attorneys can mean:

       

      • it is difficult for them to act/make decisions; or
      • the LPA could be cancelled if attorneys appointed together cannot work together or one of them dies or loses the capacity to act.

       

      Together and independently

      This means that each attorney appointed can act on their own when making decisions on behalf of the donor and that the attorneys can also act together.  This means that any one of attorneys appointed together and independently can decide on a particular issue.

       

      Even if you are appointed with other attorneys to act together and independently it is important to discuss any decisions you are making with the other attorneys, where relevant, before you make them, to avoid any conflicts whilst the LPA is being operated.

       

      Together in some matters and together and independently in other matters

      This means that all attorneys are required to agree on certain specified decisions but can act on their own when making other decisions.  For example, the donor may state that all attorneys must agree on any decision relating to medical treatment, but can act on their own in deciding in which nursing home they live.

       

      The donor will need to clearly set out what these matters are in their LPA.

      Professional Conveyancing Teddington

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      Conveyancing Teddington

      Are you looking to buy or sell a property in or around the Richmond, Twickenham, Hamptons, Teddington area?  Our expert conveyancing services offer first-rate advice and professional assistance. This can make your move swift, safe and stress-free.

      We understand that buying or selling a property can be difficult. It may be your first experience of the process or the first time for a long while. It can be a strain at times when little seems to be happening.  So it’s a plus to know we are at your side with support and guidance all along the way.

      When choosing a solicitor you can rely on you, need to be sure of a trusted and established team with experience and knowledge of local market conditions. Our team offers expertise and years of experience in buying, selling, mortgages and leases as well as new build houses and flats.

      We are qualified, regulated and insured professionals offering our services locally and as well as nationally and to clients from overseas.

      We pride ourselves on personal service tailored to your needs and situation. If you ever have any questions – don’t hesitate to ask!

      We will make our fees and other charges clear and can offer fixed fees in some cases.  In addition, our estimates in advance will help you avoid any unforeseen professional expenses further down the line.

      Contact us for a conveyancing estimate.

       

      General Property – Frequently Asked Questions

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      When will completion take place?

      We may already have your instructions about a target date for completion. If not, please tell us when you want to complete and any subsequent change in your requirements.  We suggest that you also contact the estate agents involved in the transaction so that they can liaise with relevant parties.  The contract that will be sent to you to sign will be blank as to the proposed completion date – this will be inserted by hand by us when agreed at the actual time of exchange of contracts.

      What you need to know about the contract

      Most contracts for the sale of residential property in England and Wales incorporate Standard Conditions of Sale. These are detailed and designed to strike a fair balance between the respective interests of seller and buyer.  Matters such as remedies for default are covered.  We do not negotiate or comment on every provision but draw your attention to specific matters and raise points of concern in correspondence. 

      What happens if the price is renegotiated?

      If you agree to alter the purchase price, you must tell us straight away. If you are borrowing to assist the purchase, a change might affect the amount you can borrow.    Please note that changes in price and allowances have to be reported to and acknowledged by your lender before exchange.  This may result in a delay in exchange, whilst a revised mortgage offer is issued or considered by the Lender or its underwriting department or surveyor.

      Is a deposit payable?

      The Standard Conditions of Sale provide for the payment of 10% deposit by the buyer on exchange of contracts, unless a reduced deposit of 5% or less is agreed. If you have an associated sale we will try to use the deposit from that.  This may have to be “topped up” by you to bring the purchase deposit figure up to the required amount.

      Who will hold the deposit monies and on what basis?

      The deposit will be held by the Seller’s solicitors either as:

      ‘As Stakeholders’ – the deposit paid cannot be released to the Seller until completion or until any Notice to Complete has expired (see below) OR  ‘As Agents’the deposit paid may be used on the seller’s related purchase.

      The Standard Conditions of Sale allow the Seller to use any deposit received as a deposit on the Seller’s related purchase in England & Wales.  If the Seller has no related purchase, the Seller’s solicitors must hold the deposit as Stakeholder.  In a chain of transactions, a deposit may be passed ‘up the chain’.  We may advise acceptance of this provided the money is ultimately held in a Solicitor’s client account and shall assume you have no objection unless you tell us in writing.   Please note that if the seller fails to complete you may have difficulty in reclaiming the deposit.  Please also read our Guidance Note on Exchange of Contracts and Deposit.

      How do you report to me about the property?

      We will send you copies of the Seller’s Property Information Form (SPIF) and replies to any additional enquiries we have raised. If you have queries, please tell us.  If there is any matter that is of importance to you, ask us to raise the point directly with the Seller’s solicitors.

      We will report on the title number and tenure of the property and send you two copies of the Land Registry plan.  We will ask you to check it for accuracy against your knowledge of the property ‘on the ground’ and sign and return one copy to acknowledge its accuracy.

      How will I know if there are rights benefiting and/or restrictions affecting the property?

      Once we have seen the title we will tell you what rights are expressly granted for the benefit of the property or another property/piece of land in somebody else’s ownership/occupation: also whether there are any rights which benefit the property.

      What is a covenant?

      ‘Covenant’ is a technical word that means a promise to do/not to do something. Before 1948, there was no planning legislation and on the sale of land, it was usual for a seller to impose covenants relating to the use and occupation of the property on the first and every subsequent buyer.  These sorts of covenant were and continue to be common where a large plot or estate is sold off as individual plots.  Many old covenants have been overtaken by modern planning legislation and may be irrelevant now.    We will tell you about any covenants that do affect the property (such as fencing or planning restrictions) and any other relevant entries on the Land Registers.

      We use the following risk bands:

      *             Minimal risk of breach

      **          There is a risk of breach, but we do not feel you require advice on indemnity options

      ***        There is a potential breach and indemnity options are a matter of choice.

      ****     Potential breach – Insurance is recommended and/or Lender requires it.

      *****   We advise against proceeding.

      Covenants are important and in some cases, can affect the value or the use of a property.    Where there is uncertainty concerning a restriction that appears to affect the property, further enquiries should be made.

      What information is available about Utilities and Services?

      It is always necessary to consider whether drains, water, gas and other services may cross private property. The legal title should be checked to establish the position and clarify the repairing obligations, and who are required to contribute to the cost of repairs to shared services. The seller may not have any information about the run of the services. Asking the relevant authority may discover this but could involve substantial fees and even the cost of a survey. To the extent that any of the services may pass over neighbouring property to or from the mains, it may be possible to argue that the necessary rights have been acquired by the passage of time, but this cannot be guaranteed.

      What can I learn about the physical condition of the property?

      We recommend that you commission a full building survey before the exchange of contracts. As the property is being sold to you in its present state of repair and structural condition, the Seller is not generally liable to you for defects.

      Anything the Seller or the selling agents may tell you about the property will need to be checked against information available. 

      You should not place reliance on anything you have only been told verbally.  If you have been told something upon which you want to rely, then you must let us know before the contracts are exchanged.  

      We can then ask the Seller’s solicitors to verify what you have been told.

      Should I rely on my Lenders survey report?

      The survey or valuation arranged by your Lender (unless otherwise specifically agreed) is for their benefit and to satisfy their valuation requirements. It may not detail matters that would affect your enjoyment or use of the property, or be as comprehensive as a full structural survey, which is why we make the recommendation above.

      What can you tell me about the boundaries of the property?

      The Land Registry filed plan is based on the Ordnance Survey Map.  The word “boundary” has no special legal meaning, and when related to ownership of land it is understood in two ways:

      • The “legal” boundary – this is an invisible line that divides one person’s land from other land. It is an exact line having no thickness and is an abstract concept, which can rarely be identified precisely.
      • The “physical” boundary – this is a physical feature such as a fence, wall or hedge. These boundaries do have a thickness and, although they may be intended to follow the legal boundary, the precise limit of ownership, e.g. whether to the centre or to one side of the feature, is not usually specified.

      Although physical features define the boundaries of most land, the precise position of the legal boundary is often difficult to establish for certain because title documents rarely attempt to define boundaries in any detail and the maps/plans used to establish and record the position of boundaries are subject to survey and plotting inaccuracies.

      Generally, Land Registry filed plans are prepared under the “General Boundaries rule”. This means that the exact line of the legal boundary is left undetermined, i.e. the filed plan will not state whether it includes the wall, the hedge, the ditch, or runs along the centre of the wall or fence or its inner or outer face.

      However, where the position of a physical boundary on a filed plan can be clearly interpreted as a fence or wall on the ground, then the legal boundary will be within the thickness of the fence or wall, which will usually only be a matter of centimetres.    Where the position of a physical boundary on a filed plan can be clearly interpreted as a hedge on the ground, then the legal boundary will be within the thickness of the hedge.

      How will I know what Contents are included in the price for the sale?

      A copy of the list completed by the Seller will be sent to you for your information. When agreed, it will be attached to the contract.  It may identify other items that are available for sale at an additional price.  We will ask you to check the list carefully and let us know immediately if you believe there are any errors/omissions.

      What time will completion take place?

      The sale contract stipulates the completion time, that is when the purchase money must be received by the Seller’s solicitor‘s bank by that time and then the Seller must give you vacant possession of the property. If the purchase is completed after the time specified in the contract, you will be liable to pay interest on the balance of the purchase money (purchase price less deposit paid on exchange) until the Seller’s solicitors receive it.  Please note that if monies are received after the time in the contract, but on the completion date, nevertheless, completion is deemed to take place on the next working day for the purposes of interest due.   Late completion on a Friday will result in interest payable for Saturday and Sunday as well.

      How will interest for late completion be calculated?

      The annual rate of interest is set out in the contract and interest is payable in addition to the purchase price. For every day that you are late in completing, you will have to pay daily interest at the rate specified in the contract.

      By way of example, if there is an unpaid balance of £100,000 and interest at 10%, if a full 10% deposit has been paid, about £27 a day is payable.  The Seller can also claim damages for breach of the contract, including any direct loss such as hotel accommodation or wasted/increased removal expenses.

      What happens if I don’t complete on the contractual date?

      If you have not completed by the contractual completion date, the Seller may serve a “Notice to Complete” which requires you to complete within a further 10 working days. After that period, the Seller may keep the deposit and resell the property to another party and claim damages from you.   Additional legal fees will be incurred if a Notice is issued.

      Will I be required to arrange buildings insurance?

      Under the terms of the contract, you will generally be responsible for insuring the property (not the contents) from the date of exchange. It is therefore vital that this insurance is put in place at the proper time.  If you are borrowing money, your Lender may arrange for the property to be insured on its block building insurance policy from the exchange of contacts. It would be prudent to check with your Lender and clarify their insurance provisions.

      In the case of a leasehold flat, the Freeholder, Landlord or Management Company is usually responsible for the building insurance under the terms of the lease.  Once we have seen the lease we will advise.

      What about contents insurance?

      You should make sure that you arrange for contents insurance to be in place from the date of completion. If you require any assistance about insurance, we will be happy to help.

      The property has an NHBC insurance policy/certificate – what does this mean?

      The National House Building Council (NHBC) was set up in the 1960s as a self-regulatory body of the private house building industry to help builders to build better homes. It is a private, non-profit organization, which offers technical and inspection services to its registered builder members, and insurance protection to the buyers of newly built and converted homes.

      Protection is available for ten years from completion of the building (if the policy was issued before 1 April 1999) or ten years from the date of legal completion of the first purchase (for policies issued after 31 March 1999).

      Only builders who can show their technical and financial competence are supposed to be accepted onto the NHBC register and they must agree to abide by the NHBC rules and standards.   The standards provide technical requirements and guidance on practical design, suitable materials and quality of workmanship.

      The NHBC insurance policy gives buyers cover against loss caused in three main ways-:

      • It protects against loss of deposit if the builder is declared bankrupt after exchange of contracts, but before completion of the building
      • During the first two years, it provides cover against defects due to faulty workmanship or materials, in the case of builder default.
      • From the third to the tenth year, the protection is reduced and the buyer is protected against loss due to “major structural damage”. However, disputes do arise between homeowners and the NHBC concerning liability and, accordingly, we always recommend that you carry out a full structural survey of your own and do not solely rely on the NHBC.

      We would also recommend that you carry out a survey before the two year period of the warranty, so that defects due to faulty workmanship can be put right – please bear in mind that the protection for years 3 -10 is lesser in extent than the first two year period.

      More information is available from the NHBC Buildmark House London Road Sevenoaks Kent TN13 1DE or at www.nhbc.co.uk.

      What happens if either the Seller or the Purchaser does not complete?

      The Standard Conditions of Sale previously referred to provide remedies for breach of contract. In particular if there has been any material error in the SPIF/replies to enquiries, you may be entitled to claim damages from the Seller.  You may only be entitled to rescind (withdraw from) the contract where the error results from fraud or recklessness or where the property differs substantially in some material respect from your expectations.

      If the Seller fails to complete on the contractual completion date you may serve a Notice to Complete on the Seller.   If completion does not then take place within the time specified in the Notice, you may revoke the Contract and require your deposit to be repaid with interest.  You may also have a right to claim damages against the Seller to compensate you for other losses and unavoidable expenses.

       

      Generally,  litigation is a costly way to resolve completion disputes and claims for relatively small amounts of money.  We try to ensure that arrangements are in place that reduces the likelihood of disputes arising.

      What is a Local Authority Search?

      We will make a search relating to the property with the Local Authority and copy the results to you. The search only provides protection up to the result date.  Other matters can be registered by the Council between the result date of the search and completion.  The search result should reveal the planning history of the property, any pending compulsory purchase orders, maintenance of public/other highways, smoke control orders, financial charges affecting the property and breaches of planning control, and any road proposals within 200 metres of the property.

      However, the results are often not as full as required and some authorities have poor planning records.    The search relates only to the individual property.  It will not usually reveal details about neighbouring properties, or what may be proposed for adjoining land, or land use policies.  We therefore always commission a plan search report, (referred to below).

      What sort of entries are commonly disclosed?

      • that the road on which the property fronts is a public highway maintainable at public expense.
      • that the property is located in a Conservation Area (see below). This may result in more stringent criteria being adopted when planning applications are dealt with.
      • that the property is a Listed building (see below). This means that Listed Building Consent will be needed for any alterations to the property in addition to Planning Permission and Buildings Regulation Consent.

      IMPORTANT

      The search relates exclusively to the property you intend to buy and does not cover any other property or land.   The replies from the Local Authority will not indicate development plans for any neighbouring property.  If you have any concern about neighbouring land, you must tell us so we can advise what steps can be taken to investigate further.  The SPIF should disclose details of any notices received by the Seller from the local authority regarding applications affecting adjoining or surrounding property, but as the information may not be reliable or forthcoming, please tell us about any other property/land where you would like to know the planning position or history.

       

      What is a Conservation Area and how will it affect my use and occupation of the property

      This is defined as “an area of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance”. Many different types of area are covered by this definition.  They may be large or small and they are often centred on listed buildings, on groups of fine buildings, terraces of townscape quality, attractive squares and open spaces, trees, a historic pattern or ancient monument.

      The prevailing view is that increasing pressure from developers and homeowners, if not properly controlled, could threaten to overwhelm “our heritage”.    Designation as a conservation area gives statutory recognition and protection to such areas.  Whilst recognising the need for change and acknowledging that historic areas should not stagnate, designation places a duty upon the Local Authority to ensure that the character and appearance are protected and that the design of any new development makes a positive contribution to such areas.

      All planning applications for new buildings, extensions or alterations to existing buildings within conservation areas are carefully considered by the Local Authority to ensure that they will harmonise and reinforce the architectural and historic character of a particular area.  Before carrying out any alterations or extensions affecting the external appearance of the property, you should contact the Local Authority to discuss matters.

      Please also note that before any work is carried out to trees in a conservation area, including topping, lopping, uprooting or felling, you must discuss the matter with the Local Authority and obtain their written approval.

      If building works that require planning permission are carried out without the approval of the Local Authority, enforcement action to require their removal may be taken.  This could involve an owner in considerable avoidable expense. Therefore we recommend you always check with the Local Authority first.

      What is a Listed Building and how will a listing affect my use and occupation of the property?

      When a building is “listed” it means that it is included on a list of buildings, which are considered to be of sufficient historic/architectural interest to merit special protection. The list is drawn up by central government on the advice of English Heritage.

      Planning policy guidance issued by central government provides a description of the various grades and summarises the criteria for listing.  Listed buildings are divided into three categories:-  I, II* and II.  Grades I and II* represent 6% of all listed buildings and are considered of national importance.  Grade II are of local importance but regarded as still warranting protection.

      Listing covers the whole of the building (interior and exterior) and listed building consent is required to alter the property “in any way that reflects its character”.  Repairs carried out in matching materials do not usually require consent but it is always best to check with the Local Planning Authority first.

      Local Authorities have powers to prosecute where work has been carried out to a listed building without consent.  Additionally, owners who deliberately neglect a listed building may be forced to carry out necessary repairs or may find that the Local Authority acquires the property by compulsory purchase at minimum cost.

      If you have any queries relating to listed buildings, it is always advisable to check with the Planning Department of the Local Authority first.

      What is a Drainage Search and why is it important?

      This search made with the local Water Company usually reveals the location of soakaways, surface water, foul drains and sewers and other recorded matters.

      Many homeowners have a responsibility for the repair or maintenance of drainage pipe work that they do not appreciate.  The following is outline guidance of a general nature.  Each case would require specific consideration and advice.

      There are three main terms used to describe underground drainage pipes.  This description will usually determine who is responsible for the repair and maintenance of the pipe in question.

      What is Radon and is there a specific search that can be made?

      Radon is a radioactive gas given off by the natural decay of uranium found in rocks and soil. The gas can seep into buildings via cracks in the floor, and it will usually be drawn into the building because the air pressure inside is slightly lower than the pressure outside.  The end result can be a harmful concentration of Radon which is said to be the second greatest cause of lung cancer in the UK.

      Local Authority and Plansearch results may indicate whether a property is in a Radon affected area (i.e. an area where it is estimated that 1%+ of homes come above the Radon action level).   Please note that as any indication will be based on statistics (i.e. the likelihood of the property being in a Radon area, as oppose to actual knowledge), a negative reply will not necessarily mean that the actual level of Radon is below the Radon action level for the property in question.

      The highest concentration of Radon is found in Cornwall, Devon and Somerset and it is primarily in those areas that further investigation should be made.   But Radon is present elsewhere, and you may decide to have the level of Radon tested.  The National Radiological Prediction Board can provide a ‘DIY’ test kit which takes measurements over a three month period, and also provides a report summarising the results for other homes in the area, together with the statistical probability of the effect on the subject property.

      If your proposed property is located in an area affected by Radon and has not been tested, it is possible to avoid further delay by purchasing a “Radon Bond”, which might be sufficient to cover the costs of any works (probably no more than £1,000 for a domestic property) and that sum could be retained on completion until a further test result is clear, which could be up to 12 months after completion.

      As enquiries of the Environment Agency, kit requests and Radon reports are not part of our standard Core work, if you require us to make further investigations about Radon, any additional time and expenses will be reflected in our fee.

      What is the difference between a drain, a public and a private sewer?

      Drain – A drain is a pipe that carries the foul or surface wastewater from just one property.  This drain is the sole responsibility of the owner(s) of that property for its full length up to the point where the pipe connects to another pipe.  At this point, the drain becomes a sewer.

      There are two types of sewer:-

      Private Sewer – A private sewer is any pipe which is taking wastewater from more than one property, but which is not a public sewer. Such a sewer is the joint responsibility of those properties that drain into it.  This responsibility continues up to the point where the private sewer (including the connection) joins to a public sewer, after which the responsibility changes to the Sewerage Undertaker.  This means that often people are responsible for the repair and maintenance of drainage pipes that are beneath land owned by someone else, such as a neighbour or even the Local Authority.  Unfortunately, there is little likelihood of there being plans showing drains and private sewer routes and you must rely on your own survey of the property.  Insurance may be available for the cost of repairs.

      Public Sewer – A public sewer is a pipe that is the responsibility of the Sewerage Undertaker for the area. The wastewater from every property connected to mains drainage will eventually flow into a public sewer before reaching its final treatment point.  Most public sewers run beneath the public highway and not over private land.

      What other searches will be carried out and why are they important?

      Where appropriate, we will carry out certain of the following searches before exchange:-

      Environmental Search – Legislation provides for the identification and remediation of contaminated land and has introduced liabilities for homeowners living on such land.   Local Authorities are establishing which sites are contaminated and determining what steps need to be taken to ensure proper remediation.   The law is designed to make the polluter pay but, if he cannot be found, the owner of the land may have to pay for remediation.

      An environmental search report will disclose the available information from statutory sources such as the British Geological Survey, the Coal Authority, the Health and Safety Executive and the Environment Agency.  But it may not disclose all existing information or be strictly accurate – as the information may be based on historical records.  We do not offer advice on the search result and we ask you to consult with your Surveyor for such advice.

      Plan search report – this will provide details of:

      • applications made for planning permission for development and alterations over the last five years (which is the normal life span of most applications).
      • a summary of the Local Authority’s policies for future development and land use within a 500-metre radius of the property
      • flood plain information, using the Environment Agency’s assessment to identify whether the property or the surrounding area is within either a natural river flood plain or a coastal flood plain.

       

      Land Registry Search (registered land) – A certificate of search which is clear of adverse entries creates a priority period within which we will apply to register you as the new owner of the property and any lender’s mortgage secured on the property.  The priority period effectively “freezes” the Land Registers and prevents any adverse interest being registered against the property during that period.

      Bankruptcy Search – This search is carried out against the names of the buyers and any guarantors to protect your lender.  If it reveals any entries against a name or any part of it we will need to establish that the entry does not apply to you, otherwise your lenders will not proceed with the mortgage advance.

      Index Map Search (unregistered land) – This search confirms whether any part of the property is unregistered and whether anyone has registered a “Caution Against First Registration.”  Such a caution (which is rare) would prevent us from perfecting title to the property and we would require your Seller’s solicitors to arrange for it to be removed before completion.

      Land Charges Search (unregistered land) – This search reveals whether there are any restrictive covenants or other adverse matters registered against the current and previous owners of the property.  If any matters appear which have not been revealed by the Sellers solicitors we will request full details.  The search also creates a minimum priority period of 15 days.

      Company Search – Where you are buying from a company this search is made to reveal any restrictions on its ability to transact the contract.

      Commons Registration Search – a search to establish whether any part of the property has been registered as common land.

      Mining Search – a search made to establish if there are old or current any coal workings near the property. Similar searches can be made in relation to Tin and Clay.

       What isVacant Possession’?

      The contract will provide that the property is sold with vacant possession on completion. This means that only fixtures and fittings which are included in the sale price or which you have agreed to purchase separately ought to be left at the property.  The property should otherwise be clear, including the loft and garage, gardens sheds etc.

      Do you provide advice about Mortgage Finance?

      We will consider the terms of your mortgage offer. Please ensure that you read our pink Mortgage Information Sheet.  Please raise any queries that you have with us and respond quickly when required to do so.  The mortgage advance will be subject to your Lender’s General Mortgage Conditions and they will provide you with a copy.  In summary in plain English, the main General Conditions are as follows:-

      • You must make your monthly payments on time.
      • You must pay your property insurance premiums on time.
      • You must, if you have chosen an endowment, interest only, pension or PEP mortgage, pay the policy premiums on time.
      • You must keep the property in good repair.
      • You must seek your Lender’s approval before altering/extending your property or changing how it is used.
      • You must abide by any restrictions/covenants mentioned in the title deeds and all planning laws/building regulations.

      Once you have read your Lender’s General Conditions, let us know if there are any matters that concern you.  Your property could be at risk of sale by your Lender if you break any of the Conditions.  If there is any document that your Lender has given you or advice you are unsure of, you must contact us to discuss matters.

      What taxes are payable on a purchase?

      Stamp duty land tax  If the purchase price is more than £125,000 or if you are buying a new lease, stamp duty land tax is payable at completion. (Budget 2010 concession for first-time buyers)  Stamp duty land tax levels are shown on our fee estimate and on a separate advice sheet.

      Although we will advise you with more information on the amount specific to your purchase, a futher information including a text calculator can be found on the UK governments Stamp Duty information page.

      SDLT is payable on a purchase by the buyer and is currently levied on property sale price in slices that are liable to alteration and  additional SDLT may be chargeable on the purchase of  a second property and on the grant of a lease depending upon the rent

      Capital Gains Tax (CGT) – Provided you are occupying the property as your main residence you will normally be exempt from CGT when you sell it. However if you are buying the property as a second home, there will be a potential charge to CGT when you sell it on any increase in value.

      There are certain reliefs and deductions available when you calculate the gain e.g. solicitor’s fees, estate agent’s fees and the costs of improvements. In addition, an annual exemption is available and so you will only pay tax on any gain exceeding this sum.  CGT is currently charged at the highest rate of income tax that you pay.

      Inheritance Tax – On death the property will form part of your Estate. There may be a charge to inheritance tax depending on the total net value of your Estate and to whom it is left.  For example, if you make a gift of the property to your surviving spouse or a charity, the value of that gift will be exempt from inheritance tax.

      I am buying from a Relocation Agency – are there differences?

      A relocation agency is not usually the legal owner of the property but may have a contract with the legal owner entitling them to sell on the owner’s behalf. You may not be able to place great reliance on the SPIF/replies to enquiries so we emphasise the importance of a full inspection of the property.    If there are matters of specific concern upon which you intend to rely, please let us know about them.

      I am buying from a mortgagee – are there differences?

      Where a property has been repossessed, the seller will be the previous owner’s lender. Because mortgage payments fell into arrears, the lender has obtained an order for possession of the property and is selling it under a statutory power of sale.   This means that you cannot place great reliance on the SPIF/replies to enquiries so we emphasise the importance of a full inspection of the property.  If there are any matters of specific concern that you rely upon, please let us know about them.

      The same may apply where you are buying from trustees or executors, where the Seller has not been in actual occupation, or has rented out the property.   There may be little information available to respond fully to the usual enquiries.

      Bereavement

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      Bereavement

      In times of emotional stress, you are faced with practical pressures and hard decisions.   We can help you deal with the tasks at hand.   Other notes in this series offer guidance with the practical aspects of probate and administration, and in this note, we offer some help about the personal and practical requirements following a death.

      When the funeral is over, grief does not simply disappear, so we include some details of where you and your family may obtain support.   Only time can ease emotional loss, but we can help to relieve practical burdens.   We will be there as you step along a path into the future, one step at a time.

      Registering the death

      One of the first tasks to deal with is registering the death.  The address and telephone number of the local Registrar is in the phone book listed under ‘Registrar General’.  In some areas, it may be necessary to make a short appointment to see the Registrar.   A death must be registered within 5 days in England.   Usually, only a relative of the deceased can register a death.  However, if you were present at the death, lived in the deceased’s house, or are responsible for making the funeral arrangements, you can register the death even if you are not a relative.

      You should take the following with you:

      • the medical certificate stating the cause of death
      • National Health card if available
      • Birth and marriage certificates
      • if the Coroner has been involved, you will receive a pink form (Form 100) which should be taken to the Registrar

      You will need to give the Registrar the following information about the deceased:

      • Full name
      • Postal address
      • Occupation
      • Date time and place of death
      • Date and country of birth

      There are a number of other questions that have to be answered, but these are straightforward.

      The Registrar

      In England you will receive:

      • A certificate of Burial or Cremation (green form) unless the coroner has given you an Order for Burial form, or a Certificate for Cremation form.
      • a Certificate of Registration of Death – take this to your local Social Security office if you want to claim state benefits.

      Letting Others Know

      “Tell Us Once” – this is an online service run by the government from .gov.co.uk which notifies various government agencies of the death.  It includes DWP, DVLC and the Passport Office.  The Registrar will include in the pack of certificates a form with a unique reference number to be used for this purpose only.  You will need some additional information about the deceased person such as their National Insurance number and date of birth in order to use the service.

      It would be perfectly understandable if you were to overlook some of the people who should be informed of the death.   The following checklists will help ensure that you do not miss anyone who should be informed, either for business or personal reasons.

      Business:

      • Bank/Building Society
      • Credit card companies
      • DVLA – the deceased’s driving licence must be returned
      • Subscriptions
      • Mailing lists
      • Passport Office
      • Landlord
      • Mortgage Lender
      • Council Tax office
      • Utility companies – gas, electricity, water, cable, telephone, etc.
      • Hospital the deceased was attending
      • Family doctor
      • Deceased’s employer, trade union/professional regulator
      • Accountant
      • Solicitors
      • Stockbroker
      • Therapist
      • Anyone who makes a regular delivery if it is to be stopped
      • Social Services – if the deceased was receiving home help, meals on wheels, or had an appliance or aid issued by that department
      • Insurance companies for car, life, house and contents insurance and funeral policies. Remember to quote the policy number.  The companies will need a certified copy of the death certificate.
      • Season tickets and membership cards of clubs and associations
      • Log book of any car owned by the deceased to allow a change of ownership to be recorded
      • Library books and tickets
      • Insurance companies

      Personal

      • Family members, including any living abroad
      • Family friends
      • Neighbours
      • Place of worship
      • Colleagues
      • Teacher – if a parent, sibling or someone close to a child has died

      You may want to put an announcement in your local paper.  Ask for the Births, Marriages and Deaths column.

      The Funeral

      The Will may include details of the kind of funeral the deceased wanted.  A funeral is seen as a valuable part of the grieving process and can be anything from a solitary vigil, quiet family gathering to a boisterous and upbeat celebration of life.  The deceased may have stated clearly, either in their lifetime, or in their Will, what sort of funeral they wanted.    Otherwise, you must do what you feel is appropriate.   Planning a funeral with family and friends may be helpful.

      Many people choose a funeral director to organise the funeral and deal with much of the paperwork.  Funeral directors should understand the relevant laws and the requirements of different faiths and are expert in the care of the deceased.  They can also arrange repatriation of bodies from abroad or organise funerals in other countries.   You will be asked to sign an agreement and set a date for the funeral.

      Depending on the wishes and religious beliefs of the deceased, you must decide whether there is to be a burial or a cremation.

      Burial

      In England, the funeral director must be given the Certificate for Burial or Cremation (green form) unless the Coroner has given you an Order for Burial form or a Certificate for Cremation.

      If the deceased had not already reserved a plot, one must be arranged and paid for.   If no plot has been reserved, and the deceased stated no preference where they would like to be buried, you must decide where you want the grave to be.   The plots can be in:

      • Local churchyard
      • Local authority cemetery
      • Denominational cemetery

      Cremation

      The date and time must be set with the Crematorium.   There are several forms that must be completed, not all of them by you:

      • If the Coroner is not called in, you need forms A, B C and F. Forms B, C and F are filled in by doctors
      • If the Coroner is involved, you need A, E and F. Form E is filled in by the Coroner
      • You must sign a form for the disposal of the ashes
      • Before the funeral, the crematorium will give you a form confirming the date of the cremation
      • After the funeral, the crematorium will give you another form to confirm that the cremation has taken place.

      Costs

      There are regional differences in costs, but the following is a rough guide:

      • Doctors’ fees for signing forms B and C are about £40
      • Cremation costs on average £200
      • Burial of the ashes costs about £50

      Ashes

      You can decide what do about the ashes after the cremation has taken place.  There are two forms involved:

      1. Certificate of Disposal of Cremated Remains (this states that the ashes can be buried in a churchyard or cemetery), and
      2. Certificate of Cremation for Burial and Scattering (this states that the cremation has taken place and is passed to the executor or next of kin)

      You can arrange to collect the ashes any time after the day following the cremation.  You then have several options – the ashes can be:

      • scattered at the grounds of the crematorium
      • Buried in a churchyard or cemetery
      • taken home
      • scattered somewhere of personal significance to the deceased

      Costs

      It is important that you are aware of the costs involved.  You can certainly ask for estimates from several firms if you are planning to use a funeral director and ask them to explain exactly what is included in the price.

      Check for details of any funeral policies.  These might be with the deceased’s Will or other insurance papers.   Unless there is a funeral plan, it is likely that you or the deceased’s estate will have to bear the cost of the funeral.   You can contact your local Benefits office if you are in financial difficulties.

      There are three associations of funeral directors and a Funeral Ombudsman to whom you can complain if you think a funeral has not been properly handled.

      Alternative Funeral Arrangements

      For their own personal or religious reasons, not everyone will wish to follow the arrangements outlined above.  There are a range of organisations that can help those who wish to make alternative plans.

      Medical Research

      If the deceased’s body is to be donated to medical research, phone the London Anatomy office or your local teaching hospital.   They are obliged to organise a funeral within 2 years.  You should let them know if you wish to attend.

      Organ Donation

      If the deceased’s organs are to be donated for transplant, you must tell the attending doctor as soon as possible.  Permission is needed if a Coroner has been involved.

      Useful Support Organisations

       

      WebsiteContact Details
      Age UKwww.ageuk.org.uk0800 678 1174
      Asian Family Counselling Serviceswww.asianfamilycounselling.org.ukBirmingham Office: 0121 454 1130

      Email: afcs@btconnect.com

      Bereavement Trust www.Bereavement-trust.org.uk0800 435 455
      Carers UKwww.carersuk.orgMonday to Friday: 10am – 4pm

      020 7378 4999

      0808 808 7777

      Child Death Helplinewww.childdeathhelpline.org.ukMonday to Friday: 10am – 1pm

      Tuesday and Wednesday: 1pm–4pm

      Every evening from 7pm – 10pm

      0800 282 986

      0808 800 6019

      Email: contact@childdeathhelpline.org.uk

       

      Citizens Advice Bureau (Twickenham)www.rcabs.org020 8712 7800
      Compassionate Friendswww.tcf.org.uk028 8778 8016

      034 5123 2304

      Email: helpline@tcf.org.uk

      Cot Death Helplinewww.lullabytrust.org.uk0808 802 6868

      Email: helpline@lullabytrust.org.uk

      Cruse Bereavement Helplinewww.cruse.org.uk0808 808 1677
      The National Council for Palliative Care www.dyingmatters.org08000 214466
      London Friend (LGBT Bereavement Project)   www.londonfriend.org.uk10am – 11pm

      020 7833 1674

      0330 330 0630

      Marie Curie www.mariecurie.org.uk08000 90 2309
      MINDwww.mind.org.uk
      Miscarriage Association www.miscarriageassociation.org.ukMonday to Friday: 9am – 4pm

      01924 200 799

      Email: info@miscarriageassociation.org.uk

      NHSwww.nhs.uk/livewell/bereavement pages
      Royal Voluntary Service www.royalvoluntaryservice.org.uk8am – 6pm

      0845 6080122

      Samaritanswww.samaritans.orgOpen 24 hours

      116 123

      Email: jo@samaritans.org

      Stillbirth and Neonatal Death Society www.uk-sands.org020 7436 5881

      Email: helpline@uk-sands.org

      Support Line www.Supportline.org.uk01708 465200

      Email: info@supportline.org.uk

      SOBS (Survivors of bereavement by suicide) www.uk-sobs.org.uk9am to 9 pm

      0300 111 5065

      Terrence Higgins Trust Helplinewww.tht.org.uk0808 802 1221

      020 7812 1600

      Email: info@tht.org.uk

      War Widows Association of Great Britainwww.warwidows.org.uk084 5241 2189

      Email: info@warwidows.org.uk

      Our Services: Land, Residential and Property

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      Find here a list of the services we offer which relate to land, residential and property law.
      If you need any further information on our services please contact us.
      • Acquisition of land by adverse possession
      • Acting for a Lender in securing or repaying a second or subsequent charge
      • Acting for a Lender who is not a member of the Council of Mortgage Lenders
      • Acting for charities
      • Acting for guarantors
      • Acting for insolvency practitioners
      • Acting for the Court of Protection
      • Acting on a case where the other side is not represented
      • Acting where there is more than one Lender
      • Advice on shared ownership and any Declaration of Trust
      • Advice on tax other than Stamp Duty Land Tax
      • Advice on rights to extend leasehold interest
      • Advice on rights to collective enfranchisement of flats
      • Advising on/obtaining an insurance indemnity policy (and reporting the position to your Lender and obtaining its consent and approval)
      • Advice on additional SDLT
      • Advising on/preparation of Deed of Variation in Leasehold property
      • Advising on contaminated land and Radon gas
      • Application for a Certificate of Lawful Use – planning
      • Application for a personal Local Authority search
      • Application for first registration
      • Application to convert Good Leasehold title to Title Absolute
      • Application to convert Possessory or Qualified title
      • Applications to the Leasehold Valuations Tribunal
      • Arranging bridging finance
      • Arranging empty property insurance
      • Arranging Local Authority search insurance
      • Assignment of benefit of guarantees
      • Auctions
      • Banking problems on completion day
      • Boundary disputes
      • Boundary plans
      • Breach of planning permission/building control regulations
      • Breaches of contract
      • Brine searches
      • Chancel searches
      • Claims against NHBC or similar insurances
      • Clay mining searches
      • Clearing cheques by special clearance to obtain cleared funds
      • Coal mining searches
      • Commercial or mixed use premises
      • Commons searches
      • Company searches
      • Completion delay beyond contractual completion date
      • Completion/post completion problems
      • Compulsory purchase sales
      • Conditional contracts
      • Consideration of structural survey/engineer’s report
      • Contract races
      • Dealing with misrepresentations
      • Death/bankruptcy of seller or buyer during the course of the transaction
      • Declaration of Trust
      • Deeds of Assignment
      • Deeds of Covenant
      • Deeds of Postponements on Remortgages
      • ‘Deer Leap’ and ‘Freeboard’ licences
      • Delays by a Lender in supplying all documents, including redemption statement(s)
      • Delays by seller to provide all necessary documents
      • Discharge or charge of mortgages over unrelated properties
      • Disputes in relation to the contract
      • Energy Performance Certificate- – arranging or advising
      • Equity release loans
      • Eviction of squatters
      • Eviction of tenants
      • Exchange of contracts within 21 days of delivery of draft contract and papers
      • Fire (the results of)
      • Flying freehold problems
      • Foreign companies
      • Grant of a new lease
      • Grant of or report on Assured Shorthold tenancy agreement
      • Grants of easements or obtaining new rights for a property
      • Investigate the grantor of guarantee(s)
      • Investigating/clarifying the result of any search
      • Investigating public and private rights of way
      • Investigation and where possible, rectification of title defect
      • Issues arising from the negligence of other solicitors in the transaction
      • ‘Key’ undertaking to enable access prior to completion/ with licence for works
      • Lease extensions
      • Licence to Assign
      • Licence to carry out alterations
      • Licence to occupy before completion
      • Licence to Underlet
      • Liquidation/receivership of corporate seller or buyer during the course of the transaction
      • Lock out agreements
      • Managing Agents enquiries
      • Merger of leases
      • Misdescription issues arising from estate agent particulars
      • Missing deeds
      • Mooring and berthing rights -investigation and clarification of
      • Mortgage fraud and/or money laundering report with Mortgage fraud investigations
      • Notice to Complete
      • Notice to Quit
      • Obtaining waiver or amendment to a Special or General Lenders mortgage condition
      • Obtaining amendments to leases
      • Obtaining architect’s certificates
      • Obtaining assents from third parties to sales
      • Obtaining clear ground rent receipt from Landlord where not provided
      • Obtaining copies of old planning/building regulation consents where not provided
      • Obtaining remuneration certificates
      • Occupier consents required for contract/lender
      • Option or pre-emption agreements s
      • Personal attendance at third party premises e.g. Local authority/solicitors/agents
      • Personal completions
      • Personal inspection of the property
      • Planning permission and building regulation requests.
      • Power of Attorney
      • Preparing Property Information questionnaire (PIQ)
      • Private mortgages
      • Purchase of additional land adjacent to the main property from a second vendor
      • Purchase of plots for new build
      • Purchase or Sale of Land not in England and Wales
      • Reassignment of Life Assurance
      • Reconstitution of title
      • Registration of an Enduring Power of Attorney
      • Registration of Disclosable Overriding Interests
      • Registrations of Notices or Restrictions at the Land Registry
      • Reporting to more than two clients
      • Reserving mineral rights
      • Resolving breach of existing covenants
      • Revising completion or cash statements because of changed source of funds
      • Sale or purchase of tenanted properties
      • Sales of part of land
      • Separate solicitors instructed by Lender
      • Separation of a registered title
      • Service charge retention
      • Settled land
      • Share transfer
      • Shared ownership leases
      • Simultaneous exchange of contracts and completion
      • Sourcing block insurance details and up to date premium demand/payment
      • Sourcing ground rent and service charge information
      • Statutory declarations
      • Sub Sales
      • Sureties

       

      Guidance Notes For Attorneys

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      Acting in the donor’s best interests

      A core principle of the Mental Capacity Act 2005 is that any action or decision taken by someone acting for a person who lacks mental capacity must be in that person’s best interests.

       How well do you know the donor? – Acting in the donor’s best interests includes taking into account their past and present wishes, feelings, beliefs and values.  It may be advisable to keep a written record of your discussions with the donor to revisit and update as required.  It is particularly important to keep a record if the donor has specific views or religious preferences that may be important such as about ethical investing,  worship or charities they want to support.  If there is no information then you could look at how the donor has invested their funds during their lifetime.

      For a Health and Welfare LPA the donor might wish to create a Letter of Wishes at the same time as making the LPA.  Again this should be revisited so that any change of wishes can be recorded to avoid subsequent disputes over the donor’s true intentions.

      Keep up to date with the donor – many LPAs are created well in advance of their use because of a lack of capacity and the donor’s views and preferences many change in the intervening period.  If there is a long gap between the creation of the LPA and the active involvement of the attorney, try and stay in touch and refresh your understanding of the donor’s preferences.

      After the LPA is created

      A Property and Financial Affairs LPA can be used immediately it is registered unless otherwise specified in the document.  A Health and Personal Welfare LPA can only be used once the donor has lost mental capacity.

      Judging a donor’s mental capacity – consider how you will know of the donor’s capacity is declining, so you can make a decision about when you need to start to act.  For example, if the donor has become vulnerable to exploitation and scams you may need to step in.

      Stay in touch with the donor – make sure you stay in touch and refresh any preferences or instructions, so you can record these.  The donor should always know how to contact you.  If the donor has declining capacity don’t rely on their memory to remember where you live and how to contact you if you have moved address or changed your contact details.  If you are a co-attorney make sure the other attorneys are also updated.

      Access to important paperwork – How will you find the practical information you need to begin to act under the LPA?  Will you have access to account and investment details or the donor’s internet or web based accounts and passwords?  Perhaps the donor could create or add to a file of useful information that will be accessible to you when you need to act.

      Useful guides and further information

      Mental Capacity Act Code of Practice (www.gov.uk/opg/mca-code)

      How to act under a Lasting Power of Attorney (www.gov.uk/government/publications/how-to-be-an-attorney)

      How to act under an Enduring Power of Attorney (www.gov.uk/enduring-power-attorney-duties)

      Standards for Deputies appointed by the Court of Protection (www.gov.uk/deputy-standards)

      Glossary of Terms

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      Common terms which appear throughout our legal practices (listed in alphabetical order).

      Attorney

      A person appointed to act on your behalf with general or specific powers. A Lasting Power of Attorney is a type of power for someone to manage your financial affairs or health issues when you are unable to manage yourself.

      Asset

      All things of value that you own such as property, cash, investments, personal items and goods.

      Beneficiary

      A person designated to receive money or other benefit under your Will.

      Capacity

      An ability to be able to make your own decisions; the maker of a Will must have the mental capacity to know and understand the content of the document.

      Charge

      A security on property to prevent sale unless the loan debt or obligation under the charge is paid off.

      Charity Relief

      Where 10 per cent of an estate is left to charity any Inheritance Tax (IHT) due is at a reduced rate of 36% instead of 40%.

      Codicil

      A document that amends, alters or adds to your Will without the whole Will needing to be rewritten. It must be signed and witnessed in the same manner as a Will and should be kept with your Will.

      Cohabitation

      Two people who live together in a long-term or permanent relationship.

      Court of Protection

      The Court of Protection was created under the Mental Capacity Act 2005 and has jurisdiction over the property, financial affairs and personal welfare of those people who lose the mental capacity to make decisions for themselves.

      Debts and Expenses

      Any liability of the deceased such as loans, mortgages and business or personal debts along with expenses such as funeral expenses and the costs of administration of the estate.

      Deed

      A legal document which must be signed and witnessed.

      Deed of Variation

      A Will can be varied within 2 years after death provided all beneficiaries agree; the new arrangements must be set out in a deed.

      Dependents

      A person maintained by the deceased at the time of death such as children, spouses (and former spouses), partners living with them.

      Donee

      The person who receives a gift or delegation of powers such as under a Power of Attorney.

      Donor

      The person who gives or donates gifts or powers such as under a Lasting Power of Attorney.

      Duress

      Coercion to force a person to perform an act otherwise against their free will using violence, threat or other pressure.

      Estate

      The total value of all of assets on death.

      Executor

      The person, people or organisations (such as a firm of solicitors or a bank) appointed in your Will to deal with carrying out your wishes.

      Foreign Assets

      Property that is situated outside of England and Wales.

      Fraud

      Intentional deception in order to secure an unfair or unlawful gain.

      Gifts

      An asset you give in its entirety to someone – you can make gifts during your lifetime as well as under your Will. Lifetime gifts may give rise to tax on your death. If any benefit is reserved or the gift only partially made this gives rise to tax complications.

      Guardian

      The person appointed under a Will to have parental responsibility for children if they are minors at the time of death of their parent.

      Inheritance Tax

      This is a tax levied on your estate if it is over the ‘free’ limit of £325,000. The rate is 40%. Lifetime gifts can be added back to the value of your estate in certain circumstances. Figures as at 2014.

      Intestacy

      This occurs when a person dies without a valid Will. There are fixed rules for the distribution of an intestate estate.

      Joint Ownership

      There is more than one type. If you are joint beneficial owners it will mean that you own property as a joint holder with other(s) and on your death your share automatically passes to the other(s). So you cannot leave it to anyone else in your Will.If your ownership is shared in specified percentages then you can leave your share to another person under your Will.

      Lasting Power of Attorney (LPA)

      A document, separate from your Will, enabling you to appoint an attorney to manage your affairs if you become unable to manage them yourself. You can also have an LPA that appoints an attorney to help manage any health/welfare issues.

      Legacy

      This is the term given to a gift you make in your Will.

      Letter of wishes

      This is a side letter setting out the instructions you would like your executor(s) to follow but which is not binding on them.

      Letters of Administration

      If you die without making a valid Will an application has to be made to Court to obtain Letters of Administration to enable the estate to be administered. There is a fixed order of priority for the people who can apply.

      Mirror Will

      Two (or more) Wills having the same content and which are for couples who wish to ensure that their assets go to the same people.

      Mutual Will

      Similar to mirror Will but on the death of the first maker of such a Will the survivor cannot change his/her Will.

      Personal representative

      Either the executor under a Will or the Administrator of an intestate estate appointed by Letters of Administration.

      Prenuptial Agreements

      An agreement by the parties to an intended marriage setting out how their joint assets and income are to be distributed in the event of the breakdown of the marriage. These are not regarded as binding but the Court may consider them persuasive if there is no evidence of duress or undue influence. The Court retains jurisdiction with regards to children.

      Pre-owned Asset

      This is an asset that you owned, purported to give it away in your lifetime while retaining the use of it. Inheritance Tax can be payable on such assets.

      Probate

      This is the authority obtained from the court to validate the Will and enable your executors to administer it in accordance with your Will.

      Residue

      The remainder of an estate after tax, liabilities and specific gifts or legacies have been paid. The person(s) who receive or share in the residue are called the residuary beneficiary(ies).

      Revocation

      The act of cancelling a document such as a Will so that it is of no further effect.

      Settlement

      Another word for a trust.

      Severance of tenancy

      If you are a joint owner such that on the death of one owner their share passes to the other that joint tenancy can be severed to create a tenancy in common with specified shares for the owners.

      STEP

      The Society of Trust and Estate Practitioners issues standard form wording for Wills and Trusts that can be incorporated into a document by reference.

      Tenant in common

      A person who owns a defined share of property held with other(s)

      Testator

      The maker of a Will.

      Trust

      A legal structure where two or more persons hold and own assets not for their own benefit but for the benefit of others – the beneficiaries. There will usually be a deed to set out the terms.

      Trustee

      The person who is appointed to hold the assets of the trust and distribute them according to the terms of a trust deed.

      Trust period

      The period for which a trust is set up – the maximum time allowed is 125 years after which the trust must be wound up and any funds distributed to the current beneficiaries.

      Undue Influence

      A legal concept whereby one person takes advantage of a position of power over another person.

      Will

      A document to set out how you wish your estate to be managed and distributed after your death. To be valid it must be freely made by a competent person and be signed and witnessed.

      Will trust

      A clause or set of clauses in a Will that passes some part of an estate or assets to the named trustees for the benefit of beneficiaries.

      Witness

      Under current legislation, a Will must be signed in the presence of two independent people. They must each then sign the Will stating that they have seen you sign the Will and that you are the person named in it as the testator. The witnesses cannot be people who stand to benefit under your Will or be married to or be in a civil partnership with anyone who is a beneficiary in your Will.