PROPERTY LAW Angela Brown

Nigel Read LLP Solicitors

SECOND HOME TAX

I have a house which was once my main residence, but when I met my partner I moved in with her and have lived here for five years. I rented out my own house, and continue to do so. Now my partner is selling her house and we are buying a new home together. Changes in the rules on stamp duty mean we could pay a vast amount of stamp duty; but since we are buying a property which will be our main residence, will they apply to us? The new rules on stamp duty are designed not to penalise people who already own second homes but simply want to move house. Unfortunately although you regard your partner’s house as your ‘main residence’ I take it your name isn’t on the deeds. So to all intents and purposes your new home will be a second home, and I think you will be liable to pay the new stamp duty rates. However if you sell the original ‘rented’ home within 36 months, you may be able to claim back the additional three per cent stamp duty you will have had to pay on the new property, as that will then be your main residence

MOTHER’S WILL

HOW can I get hold of a copy of my late mother’s will? I’ve already tried the local probate office, but as most of her estate will go to her husband – my stepfather – it won’t necessarily have to go to probate. As there’s no love lost between us I would like to obtain a copy of the will without having to approach him. As you’re aware, the contents of wills are only made public once probate has been granted, and probate is often unnecessary where relatively small sums of money are involved or jointly-held assets pass automatically to the survivor. So you may never see the will. If you think you may be a beneficiary you could ask the court to issue a subpoena requiring him to bring it into court. This however is quite a drastic step and could be expensive for you.

NARROWING THE PATH

The residents of six houses in our street have pedestrian rights over a lane about six feet wide behind our house. I wish to put up a garden shed which will have to jut out more than a foot into the lane. Will I be allowed to do this? No. It is not possible to build on land over which neighbours have rights of way unless all the neighbours agree to this in writing. It is immaterial that your shed will not extend over the entire access area. Ask a solicitor to check your title deeds if you’re in any doubt about the legal position.

TIDYING UP

There’s a drain across the boundary between my house and my next door neighbour’s. I am having a path laid, and want to tidy up around the drain cover as part of the job. This will mean sliding out a fence panel, but my neighbour may not agree to this, even though we should have joint access to the drain. Can I get authorisation from the council so he can’t stop me? I take it you don’t live in council houses, so the council would not become involved in this matter. As you say, your deeds probably give you joint access to the drain. So if your neighbour proved awkward, you would most likely be able to get a court order to proceed with the work. But this would be a drastic measure for so minor a matter. Discuss it with your neighbour, but if he objects you may have to just tidy up your own side.

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