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In Connect magazine this month, local Advocate Olaf Blakeley looks at property matters such as wills, unpaid rents and bankruptcy.
"Recently I’ve been asked a number of questions relating to real property (that is, land, houses etc.) and so it may be useful to share those questions and answers more widely.
I want to leave my property to my children but want my partner (not my children’s father) to be accommodated. What can I do?
"This is very easily achieved. In order for your children to inherit your property you should prepare a will of realty leaving your property to your children. However, in that same will you give your partner ‘life enjoyment’ of the property. This means that when you pass away your partner will be able to remain living in the property.
"If you own more than one property then you have a choice: you can do as I have described for all the properties or you can stipulate which property over which your partner should have life enjoyment. You do need to be careful, however, if you make an election on a particular property: if, subsequent to making your will you move house or sell that property for another then, depending on how your will is drafted, you could run the danger of leaving him life enjoyment of a property that you no longer own (which is impossible of course).
"In any event, this is something for which consulting a lawyer is necessary and they will be able to advise. I should also mention that ‘life enjoyment’ does not mean your partner has to live in that property. Life enjoyment means he may ‘enjoy’ the property for his lifetime and accordingly this means he may choose to live somewhere else but rent the property and receive the rent. In effect, the property is ‘his’ for his lifetime but he cannot sell or make alterations. He is a ‘caretaker’ of the property for as long as he lives or chooses to exercise his right."
I have a property which I rent out. The tenant is irregular in paying rent and for some months not paid rent at all. What should I do?
"The law regarding residential tenancies has recently changed and so it is important to understand when your lease of the property was made, because the advice could be slightly different.
"The first thing you should do – if you haven’t done so already – is simply write to the tenant and set out that rent is in arrears and you would like the arrears to be cleared. This is the ‘softly softly’ approach and is appropriate in most cases; but my advice would depend on the type of tenant you have and how he or she is behaving generally.
"If that is either inappropriate, or you have tried this approach and it has failed, then you need to step up the pace a notch, by making a formal demand that rent be paid
and the breach of the lease is rectified. You should give a certain amount of time for this to be done. If, after making that demand there has been no rectification then you should prepare eviction proceedings upon the tenant.
"I should mention that the process can take some time and, even if the court orders eviction it may give the tenant time in which to vacate so that alternative
accommodation may be obtained. The length of time granted as a ‘stay’ will depend on the particular circumstances of the case, and if there are also young children at the property you can expect a court to be more lenient. Similar to my answer to the previous question, this is a matter on which legal advice should be obtained."
My wife and I own our property jointly. My business has run into difficulty and my creditors are threatening to make me bankrupt. Will our house be lost?
"This is a difficult question to answer without more information because there is a significant difference if your business is as a ‘sole trader’ or it is through a company. If you run your business through a company then it is the company that will be made bankrupt (probably) and not you personally. Unless the property is owned by the company it should be safe.
"However, if you have given personal guarantees you are also at risk of bankruptcy. If you are made bankrupt then jointly owned property is ‘severed’ so that only your half share of the property falls into the ‘pot’ available for creditors; your wife’s share is safe unless she is also made bankrupt or has allowed the property
to be used as security.
"Under the law your wife also has the right to make an application for there to be a delay in the property being sold. Whether a delay will be possible will depend on the personal facts. My advice is to seek further advice. You may wish to visit the Citizen’s Advice Bureau which provides an excellent service and is a good ‘first port of call’ in matters such as this."
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