FAQs - Residential property

Below are some frequently asked questions covering the main aspects of residential property.

I want to pay off my mortgage, what steps should I take?

You should firstly obtain a redemption figure from your lender and check that any early redemption penalties and fees have been properly applied.  You may wish to pay the money direct or to employ the services of a solicitor to do this for you.  Once the monies have been paid, it will be necessary to make an application to the Land Registry where the property is registered so that the entry noting the charge against the property can be removed.

Where the property is unregistered, an application should be made to the Land Charges department for removal of the Land Charge entry protecting the mortgage.  These applications are usually dealt with by your solicitor.

Companies discharging a mortgage should give consideration to whether any resolutions or board minutes are required under company’s articles and memorandum.  It is likely that an application to Companies House will need to be made to amend the register of mortgages for the company which it holds.

What is the difference between owning a property as joint tenants and tenants in common?

With a joint tenancy there is a presumption that each co-owner owns an equal share in the equity in the property.  If a co-owner dies, the interest of the deceased automatically passes to the survivor without the need for any further document or transfer, and the survivor can do whatever he or she thinks fit with it.  This position is not affected by any will left by the deceased owner.

With tenants in common, co-owners are allowed to keep their individual initial investment intact and separate.  When a co-owner dies, the deceased’s share will pass under the terms of a will (or intestacy laws where no will exists).  Shares of the tenant in common are normally evidenced in a Declaration of Trust drawn up by a solicitor.  These documents can be very simple (eg 60/40 ownership with A owning 60% and B owning 40% after all costs of the sale are paid) or more complicated and detailed depending upon the circumstances.

Most of the provisions can be tailored to your particular circumstances and we can discuss these terms individually with you.

Holding property as tenants in common is suited to purchasers where one or both wish to keep their individual initial investment in the property separate. For example:

• because one or other purchaser wishes to benefit a third party after death by his/her will, perhaps children from a previous marriage
• because the purchasers have simply joined together as house owners out of expediency and will wish to sell up and go their separate ways in the future, and have no reason to wish their share of the property to pass to the co-owner on death, eg two unmarried friends buying together
• because the purchasers have made unequal contributions to the purchase price and may wish to ensure that, on a future resale of the property, the proceeds are split in the proportions in which the purchase price was paid.  The arrangement can assist in avoiding any argument about how the sale proceeds should be split or how much one owner should pay to another, if the property is sold, or if one owner wants to leave and purchase another property on his or her own.

Legal and financial advice should be sought before a decision is reached as to how co-owners are to hold property. Evidence of such discussions should be retained in case of dispute later on.

What steps should I take if I am concerned about the existence of Japanese Knotweed on the land I own or intend to purchase?

Japanese Knotweed is an invasive plant which can grow up to three metres high in just 10 weeks damaging pavements, walls and drains.  Homeowner can hire specialist contractors to treat the plant with chemicals.  Treatment over several seasons may be needed as the roots can grow as deep as three metres.

Many contractors will provide a certificate that the plant has been treated and no longer poses a threat to the property.  There is, however, no legal obligation on homeowners to take steps to eradicate Japanese Knotweed.  However, homeowners should be aware that a claim for nuisance can be brought via civil proceedings in the event that Knotweed spreads onto neighbouring land.  There is also no obligation on homeowners to inform authorities about its existence.

If you are purchasing a property where you are concerned about its existence, you can obtain a specific assessment from a specialist surveyor or environmental consultant.  It may be prudent to ensure that your solicitor raises specific enquiries around the existence of the plant as there is some debate as to whether a seller is required to disclose its existence.

The existence of Japanese Knotweed can have also a negative impact on property values and the ability to secure finance against property.

For more information see the Environment Agency website.

What are restrictive covenants?

A restrictive covenant is a promise not to do certain things with your land or property. Common examples include:

• not to run a business from the property
• not to keep animals or livestock on the property
• not to park commercial vehicles, boats, caravans on the land or property.

They bind the land not the person so will continue to affect the land following a change of ownership. This is so even if the covenants were entered in to hundreds of years ago.  Legal advice should always be taken on the interpretation and application of a restrictive covenant as they can affect what you can or cannot do on your property.

What are easements?

An easement is a right that one land owner has over another piece of land.  Common examples are rights of way over shared driveways and footpaths and rights to run pipes and cables for water, gas and electricity.  An easement is not a personal right and will continue to affect land following a change of ownership.

Legal advice should always be sought on the interpretation and application of an easement before preventing or altering its use.  They can affect what you can or cannot do on your property.

What is the legal boundary of my land or property?

Boundaries are lines separating land owned by one party from that owned by a neighbouring party.  All land and property, whether registered at the Land Registry or not, have legal boundaries.  Most simply, a legal boundary is an invisible line without thickness or width.  It is not identified on the ordnance survey mapping.  It is rarely identified precisely either in title deeds or on the ground.

Any walls, fences or hedges may follow the line of the legal boundary but this may not necessarily be so.  It is important to note that, in general, the Land Registry plan for property that is registered does not show the precise boundary of the property, it will only show the ‘general’ position of boundaries.

The precise boundary position can be determined by a special Land Registry procedure or by mutual agreement between neighbours.  Both of these are evidenced by entries on Land Registry title and professional advice from lawyers and surveyors is essential.

For further information on boundaries, see the Land Registry website.