QI have been living overseas for a number of years and in that time rented a house in south Dublin to tenants. I returned in recent months, and for medical reasons have been in hospital since my return. It looks like it might be some more months before I get back to my house. I ultimately want to sell it and find a smaller property. Is it possible to register it as my principal private residence from the time of my return – as it is where I planned to live – so that I can avoid paying capital gains tax on proceeds of a sale?
A A liability to capital gains tax (CGT) arises when the proceeds (less incidental costs of sale) is greater than the original purchase price (plus purchase costs and adjusted for inflation if purchased pre 2003). CGT is levied on this gain at a current rate of 33 per cent, and not the sales proceeds.
An individual’s principal private residence (PPR) is exempt from CGT if the individual has used the house as their PPR throughout the period of ownership.
Where an individual has not occupied the house as their PPR during the entire ownership, then they may partially avail of PPR relief on a pro rata basis. The portion of the gain exempt under PPR is calculated by taking the number of complete years the house was occupied as your home (including a deemed occupancy of the last 12 months before sale) over the total number of years of ownership.
Revenue considers any period of absence during which the claimant (whom normally lives alone) was receiving care in a hospital, and the PPR remained unoccupied may be treated as a period of occupation. Revenue also accept a period of absence due to a requirement by an employer to work abroad as a deemed period of occupancy. The period of absence related to foreign employment is only permitted where the house was occupied as the claimant’s only or main residence both before and after this period.
Application to your circumstances; in the future when you sell your property you may avail of PPR relief on a pro rata basis using the calculation outlined above. The period of time which you are in hospital may be considered within the number of complete years the house was occupied as your home. Your time abroad, dependent on the terms of your employment, may also be included provided certain conditions have been met.
An individual cannot have more than one PPR qualifying for relief at any one time. You should notify the Inspector of Taxes that you elect the Dublin house as your PPR, if you have more than one PPR which could avail of the relief.
Ciara McEntee is a tax consultant with Baker Tilly Ryan Glennon
Boundary walls
Q My boundary back wall that separates my back garden from my detached neighbour only comes out as far as quarter of my front driveway. I would like to continue this wall to the edge of my driveway for the safety for my two boys and privacy. Would following the line of my back wall to edge of driveway be okay?
AFrom the limited information provided I assume that the existing wall you refer to is a party wall, ie constructed on the legal boundary such that one side of the wall is in your neighbour’s property and the other side is in your property. I also assume that you propose to extend this existing wall alongside the driveway to the point at which it joins the public footpath/road in order to enclose the front area/lawn. There are two aspects you need to consider: (a) What you are entitled to do; (b) What impact your actions may have on your neighbour(s).
With regard to (a), you cannot extend the wall along its existing alignment if it is a party wall without the agreement of your neighbour as it would involve encroaching on his/her property. You are, however, entitled to build a wall on your own side of the legal boundary. As it is at the front of your house, it is likely to be subject to a maximum height restriction of 1.2 metres.
With regard to (b), it is advisable to discuss any boundary work you propose to undertake with your neighbour, or neighbours, depending on its possible visual impact. You may cause annoyance or upset neighbourly relationships if you construct a wall which is at variance with, or out of context with existing boundary treatments in the area.
A wall constructed at the front of a house in a residential area which has open plan frontages or more discreet boundary treatments may have an adverse visual impact. Discuss your reasons for wishing to extend the wall with your neighbour, and you may find that he/she will be agreeable to the wall, or alternative such as a timber fence, continuing on the alignment of the existing wall. It would be then considered to be a party wall/fence. Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer, and a member of the Society of Chartered Surveyors Ireland, scsi.ie
Building regulation
Q In a recently built house adjacent to me, An Bord Pleanála, in a stated condition, ruled that three windows on one side of the house must be "fixed and unopenable and be permanently glazed with obscured glass". This is unambiguous and shows that An Bord Pleanála deemed it a matter of considerable importance. When installed all three windows, while fitted with obscured glass, were all openable.
This is a fundamental breach of a planning condition.
I sent a complaint to the Enforcement Department of Dublin City Council last July with pictures. It took eight months for Enforcement to get back to me to say that the condition had been "partially" complied with and that it considers the degree of overlooking by the openable windows to be "minor in nature" and the case is closed.
Has Dublin City Council Enforcement Department the authority to disregard a fundamental breach of a condition of a planning permission issued by An Bord Pleanála?
If so, this emasculates the role of An Bord Pleanála and undermines the integrity of the whole system?
ADevelopments which are granted planning permission should comply with all conditions, including those stipulated by An Bord Pleanála. If they do not, then technically, they are unauthorised developments. Non-compliance with planning conditions is something which I observe on a regular basis. The condition in this case is clear and specific and must have been attached for a particular reason.
The local planning authority (LPA) does not have the “authority to disregard” conditions set by An Bord Pleanálá. Rather, their role is to enforce decisions, including all conditions. An Bord Pleanála itself has no power to enforce. However, unfortunately for the complainant in this situation, when a complaint is made about an unauthorised development, the LPA may decide under section 152 of the Planning and Development Act not to issue a warning letter if the development is considered to be of a “minor nature”.
This is no doubt frustrating for the complainant, as they clearly see the development as a significant matter. While any person may pursue an injunction via the courts under section 160 of the Planning and Development Act, to cease an unauthorised development, or to ensure conformity with any conditions to which the permission is subject, the potential cost, stress and uncertainty associated with this course of action means that it is not a decision to be taken lightly.
Andrew O’Gorman is a chartered building and planning and development surveyor and is a member of the Society of Chartered Surveyors Ireland scsi.ie
Send your queries to propertyquestions@irishtimes.com or to Property Clinic, The Irish Times, 24-28 Tara Street, Dublin 2. This column is a readers’ service. Advice given is general and individual advice should always be sought
