What action can I take to reduce my neighbour’s leylandii hedge to a more acceptable level? He gets aggressive when I mention it.
New legislation on high hedges (under part 8, Anti- social Behaviour Act 2003) has been promised for the start of this year. This will enable you to take your complaint to your local council. After weighing up the interests of your right to amenity and your neighbour’s privacy, it can order the cutting back of the hedge (backed up with £1,000 fines for non-compliance). Try to reach agreement with your neighbour for reducing the hedge (perhaps offering to pay some of the costs) as this may well be the council’s eventual order. Meanwhile, the Office of The Deputy Prime Minister has produced a leaflet, Over the Garden Hedge (see www.odpm.gov.uk), containing advice on how to resolve disputes amicably.
The water supply comes into my house through my neighbour’s. When she turns off her stopcock I am deprived of water, too. If I pay a standing charge to my water supplier should I not control the supply myself?
Unfortunately, although the company supplies the water it does not control your pipes. If the neighbour turns off the water, however, this could interfere with an easement, which may be expressly provided in your title deeds or implied by necessity or 20 years’ uninterrupted use. Your best practical answer is probably to ask your supplier to install a water meter on your property, in which case it would have to install the necessary pipes.
Is a 125-year lease valid when the HM Land Registry entry records no rent?
Although sometimes providing for a “peppercorn” or nominal rent, a lease, which must be by deed, does not actually need to involve rent (see the House of Lords analysis for the requirements of a legal lease in Street v Mountford (1985) 2 All ER 289).
What is the difference between joint tenants and tenants in common, and are there any advantages in one or the other?
“Joint tenants” means that the share of the joint owner who dies first passes automatically to the surviving joint tenant. This process is entirely independent of the will so there is no need for the survivor to obtain probate over this property. Indeed, the deceased’s share cannot be left by will. However, a joint tenant can “sever” the joint tenancy (creating a tenancy in common) by a unilateral declaration during the lifetime. If not specified as joint tenants a person will own a share “in common” with the other owners and can pass his share by will. They are thus more flexible, although subject to more administrations since probate is needed. Most joint tenancies are between spouses, in which case the property passing automatically to the surviving spouse is subject to an exemption from inheritance tax. With high house values, some advisers recommend tenants in common so that the first to die can leave his or her share to the children, taking advantage of the nil rate band — £263,000. The surviving spouse will benefit from the same £263,000 nil rate band on his or her death, maximising the tax saving.
Can a couple purchase French property as joint tenants in the same way?
No. Something close to the automatic succession to a joint tenancy can be achieved under French law either by inserting in the purchase a clause tontine (a sort of “gambler’s” clause that the survivor will take all) or by adopting the matrimonial regime of community of property. In both cases they can be severed only by agreement between the parties and are thus suitable only for longlasting relationships. These arrangements are sometimes adopted by English purchasers in order to avoid the strictness of French succession rules, which automatically give the children up to three quarters of the property (or share) on death. These rules apply even to English purchasers as succession to land in international private law is governed by local law. Adopting the tontine particularly in a non-married relationship can, however, have unpleasant tax consequences as the rate of inheritance tax in France is determined by the closeness of the relationship to the deceased, a rate of 60 per cent applying if they are not related. A CD and pack on this, Maison Impossible? — French Property Law and Succession Rights, will shortly be available from the Franco-British Lawyers’ Society, 020-7222 3860 (www.franco-british-law.org).
I was surprised to learn recently that stamp duty is no more. What is going on?
Stamp duty lives on but mainly for share transactions. Stamp Duty Land Tax (SDLT) applies to land transactions after December 1, 2003. Being designed to prevent some of the avoidance opportunities of stamp duty, it is of some complexity and a guide can be found on www.inlandrevenue.gov.uk/so. The buyer’s solicitor has to complete a detailed Revenue form within 30 days of purchase even if there is no duty. The SDLT rates are 1 per cent, 3 per cent or 4 per cent of the price if this exceeds £60,000, £250,000 or £500,000 respectively.
What are the advantages of seller’s packs?
Home Information Packs (consisting of documents such as the draft contract, searches and a home condition report) are intended to speed up our house-selling system. The seller has to produce the pack at his expense (likely to be £350 to £1,000) or face a £200 fine. However, Parliament (particularly the House of Lords) remained unconvinced that packs would work and allowed through the Housing Act 2004 only once the Government had agreed to extensive trials. Should these prove successful the system will come into force on January 1, 2007.
When can we expect to see electronic conveyancing and save all this paper?
Do not hold your breath. However, this is clearly the direction in which conveyancing is going since the Law Commission report, Land Registration for the 21st Century, a Conveyancing Revolution, came out in 2001 and provision was made in the 2002 Act. The Land Registry’s own report of February 2004, produced after extensive consultation with stakeholders, now suggests a target date of 2007. In principle it should be quicker and cheaper but the obvious danger of such a system is fraud and solicitors will be liable for negligence if they fail to protect their digital signature from fraud. For more detail on this, including a model of the anticipated system, see A Practical Approach to Conveyancing (OUP, 2004) by Professor Robert Abbey and Mark Richards.
The author is a barrister and senior lecturer at the University of Westminster. His thanks in particular go to his colleague Professor Robert Abbey for helping with the text
