There’s more to owning a property than simply paying the mortgage, painting the roof, and mowing the lawn. But tackling the legal situations that come with home ownership – either to address long-running problems or to meet our changing needs – can often feel like a daunting prospect.
RG Home spoke with Neil Molyneux, a senior associate with the Property Practice Group of Appleby, for advice on issues property owners might encounter.
Subdivisions are a type of planning permission that involves splitting your land into portions.
Mr. Molyneux said in Bermuda this typically happens either to develop a larger site, to enlarge the yard of a property or to rectify encroachments.
“Subdividing property may allow for construction of at least one new dwelling, so creating value for the owner,” he said. “Encroachments can stop or delay sales or mortgages. Rectifying an encroachment with a subdivision makes a property more marketable or mortgageable.”
“If an application for subdivision is made, it’s likely to be for a benefit, say to be able to sell a property with rectified encroachments.”
If you’re considering subdividing your property, Mr. Molyneux suggests getting in touch with an experienced surveyor.
“Refusal of a subdivision application is a possibility but is less likely if an experienced surveyor is providing advice,” he said. “Refusal is likely disappointing, especially with the costs associated with making an application. A bigger cost may be lost opportunity if the subdivision is refused.”
“The surveyor can advise on likelihood of a successful application, for example if the property to be subdivided say has suitable setbacks for development.”
You will need to draw up plans showing the property before and after subdivision. An application, typically made by the surveyor, is then made to the Planning Department, which usually makes a determination in several weeks.
After planning permission for a subdivision is granted, contact an attorney. Subdivision is effected by deed, which is usually a conveyance of the newly created lot.
Mr. Molyneux said: “If an experienced surveyor has advised an application is likely to succeed, the applicants can be reasonably confident of success.” He added: “A complicated subdivision, say with easements, can require an attorney’s assistance with the application to the Planning Department.”
A sale and purchase agreement is the legal contract setting up a transaction. The conveyance, which is typically signed 30 days after the sale and purchase agreement, is the document that transfers ownership from seller to purchaser.
In other words, Mr. Molyneux explained: “The seller gets the money and the purchaser gets the keys.”
The lawyer said a conveyance details the seller and the buyer; the property; the title history of the property establishing good title; the price paid to the seller by the buyer; that the property is conveyed to the buyer; if the property has benefits such as a right of way, or restrictions such as only one dwelling can be constructed on the property.
He said: “To be of effect, a conveyance must be signed by the parties, in the presence of a witness and the conveyance should be stamped with appropriate stamp duty.”
“Only Bermuda barristers and attorneys are permitted to draft conveyances of Bermuda property so, if a conveyance is required, an attorney should be instructed.”
Mr. Molyneux stressed it is important for people to take the time to understand conveyances.
“Conveyances indicate entitlement to property,” he said. “This is important for social and economic reasons.”
For further advice on conveyances, you should consult with an experienced property attorney.
An easement is a right across a property owned by somebody else, giving the person access to land they have an interest in.
Mr. Molyneux said in Bermuda they are typically used for rights of way, as many estate roads are private.
“An easement cannot be restricted without agreement,” he said. “This is an issue, say, if a property owner wants to enlarge a home across an easement comprising a right of way. ‘
“Obstruction is not lawfully possible unless those with the right of way agree by deed to terminate the easement, or divert the easement, for which planning permission is required.”
Mr. Molyneux said when an easement is defective or missing a property becomes less marketable or mortgageable.
“Defective easements can be rectified by agreement with all the parties and perhaps a planning permission,” he said. “A missing easement, such as from a public highway across a private road to a property, can be rectified by agreement with all of the parties, including the owner of the private road, and perhaps a planning permission.”
Easements can cause loss of privacy and development opportunities for landlords, which can affect the value of the property. Meanwhile, lack of an easement can reduce the value of a property by making it “land locked” without access to a public road.
Sometimes an easement will be removed to create a more convenient route. This is done by agreement between the parties and sometimes planning permission.
If you want advice about easements, instruct an attorney with experience of property law.
Mr. Molyneux said: “Easements are a complicated area of law, and every easement has different aspects.”
RIGHTS OF WAY
A right of way that gives you access to your property from a public road, across a private estate road, is a form of easement.
Mr Molyneux advised that the lack of right of way makes a property unmarketable or mortgageable and can reduce the value of the land, due to loss of privacy and development opportunities.
He said a right of way can be created by long use, or by agreement between landowners. They can only be removed if those with the right of way agree, or by an Act of Bermuda Parliament.
“Rights of way are a complicated area of law, and every right has different aspects,” he said.
“An attorney with property experience should be instructed to answer questions about a specific right or lack of right.”