Carp­ing about our neigh­bour’s new pond

Send your prop­erty prob­lems to: Prop­erty Clinic, The Daily Tele­graph, 111 Buck­ing­ham Palace Road, Lon­don SW1W 0DT

The Daily Telegraph - Property - - Property Clinic -

PLAN­NING

Our new neigh­bour has em­barked on the con­struc­tion of a large carp pond. He has had more than 100 tonnes of earth re­moved, ex­ca­vat­ing a hole that is about 6ft deep, 12ft wide and 14ft long. It is al­most touch­ing the bound­ary fence be­tween the two houses. All that sep­a­rates our garage from this fence is a nar­row path.

Al­though he has tried to as­sure us that an ap­pro­pri­ate lin­ing — 12 inches of con­crete — and fil­ters will be in­stalled, we have no ex­pe­ri­ence of th­ese mat­ters and have strong reser­va­tions about the longterm ef­fect this large body of wa­ter might have on our prop­erty.

The lo­cal plan­ning de­part­ment of­fi­cials seem to feel that it is a per­mit­ted de­vel­op­ment, al­though they have said that this could be a civil mat­ter.

John Win­ter writes:

The cause for worry here is know­ing that the work is be­ing done prop­erly. If the struc­ture is well en­gi­neered, en­sur­ing that the sides of the ex­ca­va­tion are prop­erly sup­ported, and the ex­ca­va­tion is drained in­tel­li­gently, tak­ing out nei­ther too lit­tle nor too much ground wa­ter, there should not be a prob­lem dur­ing the con­struc­tion phase.

Once com­pleted, a 12in con­crete lin­ing will sup­port any­thing and should stop wa­ter leak­ing out of the pool and mak­ing the ground wet. I do not see that this body of wa­ter will have any ill ef­fects on your prop­erty.

Hav­ing re­as­sured you, I am con­cerned at your neigh­bour’s rather un­neigh­bourly be­hav­iour.

The Party Wall Act re­quires a per­son dig­ging be­low the foun­da­tions of an ad­ja­cent prop­erty to serve a no­tice of his/her in­ten­tions, and the re­cip­i­ent of the no­tice has the right to em­ploy a sur­veyor at the ex­pense of the per­son sub­mit­ting the pro­pos­als.

I am not sure of the lay­out of your prop­erty, but it seems that the foun­da­tions to your garage are likely to en­ti­tle you to re­ceive such a no­tice and your neigh­bour is at fault if he just went ahead with­out your agree­ment. This is pre­sum­ably what the plan­ner had in mind when he talked about a “civil mat­ter”.

John Win­ter runs his own ar­chi­tec­tural prac­tice.

BRICKS & MOR­TAR

My daugh­ter has had her 1920s de­tached house reroofed. New slates have been fixed over roof­ing felt. She has also had new PVC sof­fits and fas­cia boards fit­ted by the same firm, with no ventilatio­n grills.

Bear­ing in mind that there is now no ventilatio­n, I have heard that this could cause prob­lems to the roof tim­bers. Is this cor­rect and if so, what cor­rec­tive ac­tion is nec­es­sary?

David Snell writes:

One an­swer might be that if your daugh­ter has not ex­pe­ri­enced any con­den­sa­tion prob­lems over the win­ter months, things could be left as they are.

If you do de­cide to ven­ti­late the roof, it is not that dif­fi­cult to do ret­ro­spec­tively with round sof­fit ven­ti­la­tors fit­ted into the plas­tic. You could even ar­gue that the com­pany that car­ried out the work should have known that this was best prac­tice and re­quire them to pay for it or carry out the work them­selves.

How­ever, ventilatio­n at sof­fit level alone will not truly work and it would also be nec­es­sary to have it at ridge level as well, ei­ther in the form of ridge tiles or by grills in the gable ends.

David Snell is con­tribut­ing ed­i­tor to ‘Home­build­ing & Ren­o­vat­ing’ mag­a­zine and au­thor of ‘Build­ing Your Own Home’, avail­able at £25 plus £2.25 from 0870 155 7222.

MONEYMATTE­RS

In 1988 I mar­ried a wo­man who lived with her two teenage sons in a tiny house she had bought two years be­fore. In 1990 I sold my own pre­vi­ous res­i­dence, in­tend­ing that we should buy a larger home to­gether. The next year the prop­erty next door to my wife’s house came on the mar­ket; we bought it, knocked through and ex­tended our home. This sec­ond house is in my name and the deeds re­main sep­a­rate.

We pay full coun­cil tax on each, al­though some util­ity bills and the television li­cence are recog­nised as for a sin­gle prop­erty. Now we wish to move, rais­ing the is­sue of a large cap­i­tal gain on our “sec­ond” mar­i­tal home.

It would ob­vi­ously be eas­ier for us to sep­a­rate the houses and sell one at a time, and we have toyed with the idea of keep­ing one house for rental in­come dur­ing our re­tire­ment.

I had in mind to ask Rev­enue and Cus­toms for a dec­la­ra­tion that we have one prop­erty only, but un­der­stand they will not dis­cuss Cap­i­tal Gains Tax (CGT) mat­ters prior to a sale. Where do I stand?

Mag­gie Flem­ing writes:

There is no ex­plicit guid­ance in the leg­is­la­tion as to what con­sti­tutes a dwelling house qual­i­fy­ing for CGT re­lief.

There is some case law, but that is mostly con­cerned with man­sion houses with out­build­ings. We shall there­fore have to rely on com­mon sense and a com­mon-sense approach would in­di­cate that, al­though the prop­er­ties have sep­a­rate deeds, they con­sti­tute a sin­gle res­i­dence.

The im­por­tant fact is that you have con­verted two prop­er­ties into one by knock­ing through the walls and es­tab­lish­ing in­ter­nal com­mu­ni­ca­tion. I can­not see that Rev­enue and Cus­toms will ar­gue with that.

If you sell the prop­erty as it is, there should be no dif­fi­culty. If you sep­a­rate the houses and sell them one at a time, there should still be no prob­lem with Rev­enue and Cus­toms – the leg­is­la­tion specif­i­cally per­mits re­lief to ap­ply on the sale of part of a dwelling house.

How­ever, if you de­cide to sell the ti­tles sep­a­rately or to re­tain one of the houses as a rental prop­erty, I rec­om­mend that, to be on the safe side, you take pho­to­graphs of the prop­erty be­fore ‘‘re­sep­a­ra­tion’’ to prove that this had been a sin­gle house­hold. You should also keep doc­u­men­tary ev­i­dence — such as the util­ity bills and the TV li­cence.

Mag­gie Flem­ing is a di­rec­tor of Isis Fi­nan­cial Plan­ners and a mem­ber of the Char­tered In­sti­tute of Tax­a­tion.

POINTS OF LAW

We re­cently had a full sur­vey done of our house. The sur­veyor was with us for nearly nine hours and in­sisted on tak­ing pho­to­graphs of the house even though I told him that for se­cu­rity pur­poses I would pre­fer if he did not.

If the present buyer does not buy the house, what hap­pens to the pho­tos? Is he not con­tra­ven­ing the Data Pro­tec­tion Act by gath­er­ing data not rel­e­vant to the sur­vey, and what can I do about it now he has the pho­tos? David Flem­ing writes: Your prob­lem is a very dif­fi­cult one. I do not think you have a claim in tres­pass since you clearly in­vited the sur­veyor into your prop­erty and it is not clear that a claim for tres­pass can arise where a “guest” abuses his po­si­tion by do­ing unau­tho­rised acts such as tak­ing pho­to­graphs.

Nor do I think the Data Pro­tec­tion Act will help. In cer­tain cir­cum­stances, pho­to­graphs of peo­ple have been held to be sub­ject to the Act but I do not think this can ex­tend to pho­to­graphs of the inside of a house.

It seems to me that the prac­ti­cal way for­ward for you is to write a for­mal let­ter of com­plaint to the se­nior part­ner of the firm of char­tered sur­vey­ors con­cerned. Cer­tainly it would be rea­son­able to ask for an as­sur­ance that the pho­to­graphs would not be sent to any­one other than the buyer and you should ask the same thing of the buyer him­self. David Flem­ing is head of prop­erty lit­i­ga­tion at William Heath & Co.

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