Your Property Questions
Julia Posener, Head of Property writes a weekly column in the Liverpool Echo
All questions and answers are published here for illustrative purposes only. These may not take account of current caselaw and are not offered as legal advice.
Q. Do I actually have to have an Energy Performance Certificate before my home can be marketed?
Q. Do I actually have to have an Energy Performance Certificate before my home can be marketed?
A. At present, and for the next few months at least, the requirement is simply that you must have commissioned the HIP, including the certificate. However, where a HIP is required, an Energy Performance Certificate must be provided before contracts are exchanged.
Q. In a recent auction I successfully bid for a commercial property, which is let to a green grocer. Although contracts were exchanged for a price of £180,000, it seems that I am going to have to pay Value Added Tax on top of this. Can you explain as I thought that property was outside the tax regime.
A. In the case of commercial property, although this is usually exempt from VAT, it is possible for the owner to opt in to the regime. An election to tax can be made in respect of the particular property and this will be acknowledged by H M Revenue and Customs.
Once the procedure has completed, then a landlord would charge tax on the rental income from the property, and VAT would also be payable on its sale.
However, where a property is sold part of a business transferred as a going concern, VAT may not be applicable. The fact that the property is let, and that you will take over as landlord may bring you within the ambit of these provisions, if you are VAT registered. In the circumstances, you should urgently consult with your accountant. If you do have to complete before you are able to determine if the transfer as a going concern arrangements will apply, you may be able to recover VAT at a later date.
Q. Whilst I was away from my shop, the landlord arranged for the keys to be changed. Although I was behind with the rent, I am now in a position to pay the arrears. Do I have to accept that I have lost my business?
A. There are two ways that a landlord can end a lease for non-payment of rent. One of these involves the service of notices, and the other is known as ‘peaceable re-entry’, which is what has happened to you.
In such circumstances a tenant does have the right within a six month period to apply to the court for relief from forfeiture. An application for relief can be successful even if the premises have been re-let.
As you are now able to pay the arrears, you should consult with a solicitor as soon as possible, but note that you will normally be responsible for the legal costs of the landlord, as well as your own.
Q. Several years ago my mother signed an Enduring Power of Attorney, appointing me as her attorney, but it has never been used. I am now concerned as to her mental capacity and doubt if she will be able to live on her own for much longer. In the circumstances, I think it sensible to sell her house, and we can make alternative arrangements. As I understand that there is now a different sort of power of attorney, does this mean that I am unable to act on her behalf?
A. As for October 2007, it is no longer possible to put in place an Enduring Power of Attorney (EPA). The Mental Capacity Act 2005 created a new arrangement known as the Lasting Power of Attorney (LPA), which was designed to remedy various defects under the existing scheme.
However, the legislation does provide for the operation and registration of all EPAs created before 1 October 2007, and you should therefore contact the Public Guardianship Office with a view to registering your power.
This will enable you to deal with your mother’s property. However, an EPA relates only to the property and affairs of the donor and does not enable the attorney to make welfare decisions on the donor’s behalf. This omission has been addressed under the new regime, as it is possible to make a separate personal welfare LPA, as well as one dealing with property and affairs.
We own a number of houses on a buy to let basis. On completion of the registration our conveyancer sends us copies of the title, and we have noticed that in each case the address given for ourselves is the address of the property, and not where we actually live. Is this the usual procedure?
It is most important that the Land Registry has correct contact details for you, and it is possible for it to record up to three addresses, including email. Although it is mandatory to have one postal address on the title register, this does not need to be in the UK.
The Land Registry has reported one case study where it completed an application for adverse possession, where land was effectively transferred from the registered proprietor’s title and incorporated into the garden land of a neighbour, and were notified three years later that the original owner had known nothing of this. He had not received the notice sent by the Land Registry, which would have enabled him to object, because he had moved without notifying the Land Registry of the new address for service.
Whilst this situation will not be common, you should ensure that your conveyancer provides the Land Registry with correct contact information for you.
Q. My late husband and I jointly owned our house. I have now seen a copy of the registered title and it still shows his name as registered proprietor. How do I go about changing this?
A. If you and your husband owned the property as joint tenants, then you do not really need to take any action at this stage. All that the Land Registry will need to see in order to remove your husband’s name will be his death certificate, and this can be dealt with as and when you decide to sell.
However, if you and your husband owned the house as tenants in common, the situation is more complicated, as the Land Registry will need to be certain that he did not leave his share of the property to a third party under his will, or that if he did not make a will there are no other persons entitled to benefit from the proceeds of sale of the property.
If the house was owned by you as tenants in common, there will be a restriction on the title to the effect that two proprietors are required to enter into transfer deeds relating to the property and, if this is the case, you should consult a solicitor