There are several “hot” topics affecting property law being discussed nowadays and I hope the following article will give you an insight into some of the matters affecting our clients that we deal with on a daily basis.
It is quite surprising when I look back at property prices that the current surcharge on property transactions, where the buyer owns another property is 3%. There is still a lot of pressure on buyers to see whether any stamp duty can be saved.
The general rule is that if a property arrangement lacks genuine, economic or commercial substance then it will be considered as anti-avoidance and could result in a higher surcharge and penalties being applied.
So, some care needs to be taken if you are considering asking a Solicitor to structure a conveyancing transaction with a view to seeing whether stamp duty can be saved. In other words, just structuring a conveyancing transaction to save stamp duty without a commercial background could be considered as anti-avoidance.
Generally speaking the first-time buyers’ relief is an important one for new buyers, but only where the buyer has not previously owned a property before. For stamp duty purposes, “owning” also means having or having had an interest in a property. Therefore, buyers should appreciate that there could be some work that has to be done to ensure that at the time of the first time buyers’ purchase, there have been no previous properties in the name of the buyers.
A second area of property law to be wary of concerns lease extensions. Particular care now needs to be taken because it appears that the minimum lease term for mortgage and re-mortgage purposes is 85 years.
This means that if you have a lease asset that has less than 85 years left, with no mortgage, but there is a need to raise capital then that lease could be unmortgageable unless it is extended, either on a voluntary basis or by Statutory Notice.
The problem is that freeholders who are approached with a voluntary lease extension are going to try and make the highest return on the premium and may also try and change the ground rent.
For example, we are seeing leases with unreasonable ground rent clauses doubling every 5, 10 or 15 years. That too will be a problem, because that could prevent future purchasers of the property from being able to get a mortgage, therefore affecting its marketability.
The choice, therefore, as to whether you approach a lease extension by Voluntary Notice or Statutory is a difficult legal one. I would advise that it is in your best interests to take advice if you are in that position.
Developers now fall within the definition of a trader and solicitors must take care when acting for developers that clients are not omitting any material admission omissions, e.g. planning applications in the area.
The government has clamped down on unfair contract terms and solicitors must disclose any material information in the papers. So, if you are acting for a buyer it is possible to try and get some of the small print in new build contracts omitted because they are unfair or contain material omissions.
Japanese Knotweed (FALLOPIA JAPONICA)
This is another issue arising more frequently in property transactions. If there is Japanese Knotweed near the property, this will need to be disclosed to the Lender, as a plant growing within 7 feet of a property can affect the structure. Therefore, NHBC cover may not extend to damage caused by the plant and some building insurance policies will not provide cover. In these cases, we suggest that you look for an insurance backed warranty.
Also, if your neighbour has Japanese knotweed, then potentially there may be an action that can be taken against them.
Finally, in property law do not forget issues in relation to noise nuisance coming from property and water damage issues where responsibility and liability are often issues.
As you can see, the property law area is developing very quickly with many difficult issues which need specialist advice.
If you have any of the examples above or any other area of property law that you need advice on then call me on 0208 959 6090 or via this link >