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Frequently Asked Questions

FAQ

FAQ’S - Conveyancing

Conveyancing is the term for transferring ownership of property from one person to another. This can be much more complex than other types of transactions as your lawyer will have to carry out a number of checks in relation to the property and the land it is on.

For example, does anyone have right of access or rights of way through the land? Does the owner of the property have existing obligations to adhere to, such as a lease or chancel repair liabilities? What restrictions does the lease place on the property owner? The property may be in a conservation area or have tree preservation orders, which would restrict what you can do with the land.

A specialist conveyancer will check all these things and many more to ensure that you are fully aware of the legal implications of buying a property and protect you from any nasty surprises later on.

The time taken to complete a Conveyancing transaction depends on a number of factors. One of the main factors is how long the chain of other people who are involved in the move is. The longer the chain, the more difficult it is to co-ordinate and the more opportunity there is for a problem to arise in one of the links.

As a general guide, a straight forward transaction with no major problems should complete in 4 to 6 weeks. However, many transactions are completed more quickly than this when circumstances allow.

Please contact us to discuss your circumstances and we will be able to give you an idea of a timescale for your move.

We want to provide transparent pricing and will always quote you honestly. A quote for Conveyancing is made up of two parts, the legal fee (our fee for doing the work) and the disbursements (expenses incurred on your behalf, such as searches). We will quote you a fixed legal fee to cover the work. We will also quote you all the standard disbursements for your transaction based on the information we have at the time.

Fees and disbursements will only ever change if something comes to light during the Conveyancing process, which was unforeseen at the time the quote was given. We will always contact you before incurring additional expenses on your behalf.

Disbursements are expenses, which are incurred during the Conveyancing process. These range from searches on the property you are buying, aimed at uncovering any potential problems or things you should know about, to fees such as land registry fees which are payable to the land registry to register the property on completion.

A transfer of equity is a transfer in share of a property. It usually involves someone being removed from or added to the ownership of a property.

The most common circumstances giving rise to the need for a transfer of equity are:

Divorce or separation: following divorce or separation one partner may wish to be removed from the ownership of a house. Depending on the agreed settlement this may involve a cash payment by the other partner.

In cases involving the removal of a party from ownership of a property where a mortgage exists the mortgage company will first need to give consent.

Marriage or living together: this is when a party takes part ownership of a property and possibly takes out a joint mortgage.

In both cases you will need a lawyer to handle the legal work. This will involve preparing the legal documents (the transfer deed), updating Land Registry records and assessing the transaction for Stamp Duty Land Tax implications.

Yes, it does. You will be paying a rent – large or small – and very likely a ‘maintenance charge’ to cover the cost of cleaning the building and keeping it in repair. Also the Lease will have many clauses, which will affect you. Can you keep pets? Can you use one room as an office? Can you leave your car in the driveway?

How often must you decorate? Who decides how the maintenance charge is calculated and what do you get for it? All these are set out in the Lease. As the Landlord will be able to enforce these terms, you must go through it carefully with us and discuss it.

This is very important. The normal rule is that anything permanently fixed to the property (“fixtures”) such as a bath, built in cupboard and the buyer will acquire plants and shrubs. To avoid any misunderstanding over what is and is not included in the sale price of the property the seller will complete a schedule of fixtures, fittings and contents which will be attached to and form part of the contract.

It may be appropriate for both the buyer and the seller to agree a price for fittings and add this to the contract. Discuss this with us, it may also have a bearing on Stamp Duty.

If the house is new and covered by a National House Builders Council Certificate you may not need a survey. However, bear in mind the NHBC Certificate only covers ‘major structural defects’. The older the house the more essential it is to have it surveyed – by someone properly qualified and independent. If you wish, we will help you with this by a recommending a reputable surveyor.

Many people think that a “survey” by the Building Society, in fact a valuation, is all that is necessary, but this is wrong. The Building Society surveyor is working for the Society and will check the value of the house for them, and look for any obvious defects.

He is not working for you but looking to see if the property is good security for the amount you wish to borrow. There are other types of survey such as a Home Buyers report or full structural survey which are much more thorough and can be vital for older properties. A detailed survey can be expensive and you should obtain an estimate of the cost before commissioning one.

It is absolutely vital to buyers that they know of any tenancy affecting the house or land they are buying. The old lady you met when looking round the house could turn out to be a ‘tenant’ – with a right to live in the property – and not be the seller’s mother as you thought. We will, of course, demand vacant possession of the house on completion, but do ask us about anything that worries you.

Joint tenancy

Under this agreement the joint owners together own the whole property and do not have a particular share in it. If one of the owners dies the other automatically becomes the sole owner. This would be the case even if a will had been made leaving the deceased owner’s ‘share’ to someone other than the co-owner.

 

Tenancy in common

This is the opposite of joint tenancy in that the tenants in common each have a definite share in the property. For example A and B could own the property in equal shares, or A could own one fifth with B owning four fifths. This would be the most appropriate agreement where people want to own a property in separate pre-determined shares.

Under this form of ownership if one of the owners dies, his share of the property will pass on to whoever he specifies in a will, or if a will is not made, in accordance with the rules of intestacy (someone dying without leaving a will).

If you are planning to make a will (and it would be wise to do so) you should have it drawn up before you sign the transfer deed that passes the legal ownership of the property to you. This way you will save the time, money and inconvenience of having to change your will.

FAQ’S - Wills

Specify who will inherit your assets. Making a Will is the only way to ensure that your assets go to your loved ones in the way that you would like. If you have not made a Will the law decides how your estate is distributed and in some cases it may go to the Crown.

Unmarried partners. If you are living with someone but are not married to them it is critical that you make a Will to protect them, otherwise they may get nothing. Unmarried partners have very little protection in law and the idea of a ‘common law partner’ has no legal standing.

Personal possessions. Even if you do not have substantial financial or property assets you may still have important personal possessions, which you may wish to leave to particular people.

Nominate guardians for your children. A Will is particularly important if you have children as you can specify who you would like to look after them if you died.

Avoid family disputes. If you do not leave a Will you are increasing the chances of your estate being disputed by family members later on. By making a Will you can avoid any dispute by making it clear exactly what you want to happen.

Specify your funeral wishes.

Make donations to charity or favoured causes.

If you die without leaving a Will (intestate) your estate is distributed according to the laws of intestacy. The laws specify how assets are distributed to family members in a fixed order. If you have no family members then your assets will go to the crown.

The danger of dying intestate is that you will have no say in who gets what. Family members who you may not wish to could inherit your assets. Likewise, people who are not blood relatives, such as unmarried partners, may not receive anything.

If you have already made a Will it is important that it is kept up to date to reflect your circumstances. You should review your Will whenever your circumstances change in any significant way. Things which may affect your Will include:

– Divorce or separation
– Having children
– Buying or selling a large asset such as a house
– Marriage

As a general rule it is recommended that you have your Will checked at least every 5 years to ensure that it still reflects your requirements.

Yes. If you have children under 18 it is important to consider who would take care of them in the event of both parents passing away at the same time.

While family members may step in to care for them, it may not be who you would choose to do so. Appointing guardians enables you to have some say in who would bring them up. It can also help to avoid disputes between opposing family members who would all like to help. By stating your wishes in a Will you can make it clear exactly what you would like to happen.

In choosing guardians consideration needs to be given to the age, health and financial circumstances of the selected parties.

Our experienced lawyers can help you with appointing guardians in your Will.

An executor is someone you appoint in your Will to carry out the instructions contained in it. They can be a family member, friend, a firm of solicitors or anyone you choose. An executor can also be a beneficiary of your estate.

Many people appoint their spouse as executor, although it is advisable to appoint more than one executor to avoid problems if your first appointed executor dies before you.

If you have a substantial estate or one, which is financially complex, it may be advisable to appoint a firm of solicitors or someone who has the knowledge required to deal with your finances and tax liabilities in the correct way.

FAQ’S - Debt Recovery

Before issuing any court proceedings, you should try to establish whether or not the debtor can pay. You can do this by means of company or credit searches.

If the debtor has no money and you take further action, you will be wasting time and more of your money pursuing them. Although it is a bitter pill, you will be much better off to write-off the debt and concentrate on productive work.

If the debtor can pay but won’t, you should write to them, asking if there is any reason why they are not paying. There are two reasons for this step.

If the debtor has a complaint, you can resolve it; if the debtor is merely playing for time and does not respond properly, it will be hard for them to claim later, once legal proceedings have started, that there was a valid reason for not paying you.

If the debtor has a complaint that you agree with, you should acknowledge this and offer to resolve it if they confirm that, on resolution, they will settle the debt.

If the complaint is unjustified, you should write briefly back, pointing out why the complaint is unjustified and asking for payment. Try to stick to the point in your letter – do not get upset. If matters are not resolved first, this letter will be read in court and a brief and polite letter will reflect better on you

If there is no fair complaint or no response to your last letter after about two weeks, your solicitor should write a further letter in stronger terms threatening legal action if payment is not made within seven days.

The solicitor must make this letter unambiguous or the debtor may claim that they did not get fair notice of legal proceedings and may try to claim that they shouldn’t pay your legal costs.

Instead of issuing a court summons (suing), if the debt is for at least £750, you can serve a Statutory Demand giving the debtor 21 days to pay after which you can apply to have them made insolvent.

You have to follow a statutory prescribed form. It will be worth paying a solicitor to do this simple task. The Demand needs to be served personally – unless you are able to do this yourself, you will need to pay an enquiry agent to do it for you.

If the statutory demand doesn’t work, you can then either resort to suing or issue insolvency proceedings, which are very expensive.

If there is any chance that the debt can be disputed (even on spurious grounds), a Statutory Demand is probably a waste of time: unless the dispute is clearly a sham, the court will automatically set the Demand aside at a special hearing and you will have to pay the costs.

For your convenience, you should issue your claim in the county court closest to you, it will be listed in your local telephone directory.

If the debtor files a defence, the case will probably be transferred to the debtor’s local county court. If this is far away, it may make it uneconomic to continue with the case, so think of this aspect before issuing. Conversely, this transfer can work to your advantage – if the debtor’s local court has had frequent experience of the debtor, they will know that they are a ‘professional debtor’ and allow less opportunity for playing the system.

You can object to the case being transferred, but you will need a very strong argument.

The court will be dictate the procedural steps to suit the particular case. It is important that you carefully read any correspondence from the court and deal with it promptly as any failure to meet a deadline could result in your claim being struck out.

Getting a judgement is merely a piece of paper – you still have to collect your money. Some debtors may pay without problem but many may not in these cases, there are various ways of enforcing a judgement, such as –

 

Charging Order

This is similar to taking a mortgage over freehold or leasehold property, if the debtor owns such property or an interest in it.

 

Execution

This involves sending the bailiffs to the debtor’s address to see if there are any assets, which are worth the bailiffs taking to sell to satisfy the judgement.

 

Attachment of Earnings Order

This is only applicable if the debtor is employed and being paid a regular wage. Under such an order, the debtor’s employer would have to pay the judgment debt by instalments by deducting them from the debtor’s wages or salary.

 

Bankruptcy

Although not strictly a method of enforcing a judgement, this is often an effective way of “persuading” a debtor to pay a judgement debt. However, it is only of any use if the debtor actually has assets and does not want to lose them. The danger of using this method is that it is initially fairly expensive and there is no guarantee of getting the costs back (if for instance the debtor is genuinely bankrupt).

If you do not have any details of assets that the debtor might own, you can arrange a cross-examination about their financial affairs, to discover details of any assets.