After a number of false starts, and the hope by all property professionals that they would not happen at all, Home Information Packs are at last upon us. Essentially a HIP is required for all 4 bedroom properties that are marked from 1st August. Cynics have suggested that after the 1st August there will no longer be any 4 bedroom properties on the market - only 3 bedroom houses with ancillary studies, box rooms etc. The requirement that a property could not be marketed without a HIP being prepared has been relaxed and all that is required now is that a HIP is commissioned.
We very much take the view, as do the local estate agents, that a HIP is a legal document and therefore it is appropriate that your solicitor should prepare it.
If you are thinking of selling, we would urge you to contact us first and we can then discuss with you the requirements needed to prepare the HIP.
The House of Lords decision in the case of Stack v Dowden has highlighted how important it is for unmarried couples who buy property together to enter into a legally binding agreement setting out their shares in the house. The landmark ruling means that when unmarried couples split up, the court will use an "equality yardstick" as the starting point when dividing the value of a jointly owned home.
If one party has put more into the property than the other, but has not had it legally recorded, then they may have to go to court to prove their case which is likely to prove costly. As one of the lawyers concerned with the case said; "If nothing else, it should give encouragement to all couples buying a home together without marriage or civil partnership to state clearly, either on the Land Registry transfer form or on a separate deed, the shares in which they own their new home. The legal costs of those are insignificant compared with the costs of going to court to sort it out".
A Declaration of Trust, which w can prepare, is all that is needed to avoid trouble later.
A new approach is being developed to try to reduce the
unpleasantness of divorce, especially for the children. The parties and their
solicitors agree not to use the Courts; they then try to resolve all the issues,
especially money and parenting, in a series of face to face meetings. Solicitors
who practise this method are all trained mediators, and they bring that skill as
well as their experience in family law, to the process of trying to help the couple deal with the difficult business
of seeking solutions that are fair to all the family in a way that is
respectful.
Another advantage of this process is that it does not hand
over control of the time-table or the agenda to the Courts; it goes as quickly
or as slowly as the parties wish, and deals with whatever issues concern
them.
If you are interested in knowing more, please telephone
Richard Apley
One of the unintended consequences of the new legislation
banning any discrimination on the grounds of age, is that "length of service"
has become a battle ground; in particular the question whether it is legitimate
for an employer to pay one employee more than another solely because the first
has worked for that employer for longer, or whether, because longer serving
employees are more often older employees, this amounts to discrimination against younger people,
entitling the lower paid employee to
claim compensation. A recent decision by the European Court of Justice was
expected to decide this once and for all. Unfortunately what it said is
that it may be legitimate and it may not, depending on the facts of the
individual case. If you are left unsure as to
your own position and need guidance, please feel free to telephone
Richard Apley.
The Common Act 2006 comes into force from April 2007. The intention behind the Act is to make it easier to register land as a village green. Under the existing law, a landowner can prevent registration as a village green, even if there has been 20 years qualifying use, by preventing its use as such, eg by fencing it. Under the new Act, there will be a period of grace of 2 years from the date on which use ceased to an application for registration to proceed.
As always, the law is more complex than this, and this is just a very short overview of the new legislation.
Clients who own unoccupied property whether as an investment or through inheritance should be concerned by the Government’s recent legislation that enables a Local Housing Authority, in certain circumstances, to take management control of a dwelling in order to secure occupation of it.
As always the legislation is complex but we highlight here a few important points:
Under the Orders a private home can be ‘managed’ for up to seven years.
A home does not have to be blighted or boarded up, merely unoccupied for six months – including homes of the recently deceased where just six months is allowed after Grant of Representation has been issued.
Orders can be served where homes are already on the property market if a council thinks the asking price is 'unrealistic'.
Councils have forcible powers of entry once an Order is made, and people can be taken to court and charged with a criminal offence is they obstruct officials.
There is no obligation to obtain a market rent, and social tenants can be housed in the property.
The owner can even be charged and billed for their property, if service/standing charges are greater than the rent, after the council deducts its "expenses".
We will be pleased to further advise any client on their specific circumstances or a more general information sheet is available on request from your usual adviser at this firm.
Financial settlements on divorce - Miller and McFarlane cases
14th July 2006
The House of Lords does not often consider this area of law,
and both lawyers and couples divorcing or about to divorce have been anxiously
considering the long-awaited judgement in these two cases. It will take some
time to digest them thoroughly, and indeed there are differences between the
judgements of the different law lords which will cause continuing controvery for
some time yet. But some points of principle have emerged:
1) there are no simple or mechanical rules: the job of the
Court is to try to find a "fair" solution in every case, and every judge is left
free to exercise their discretion within certain statutory guidelines which are,
frankly, not especially helpful as predictors of the outcome in any individual
marriage
2) children are the first priority when considering both
division of the assets and maintenance
3) when dividing the assets, if the proposed share is not
50/50 the Court must justify why not. There are a number of such justifications,
most importantly where 50% of the assets will not re-house a family.
4) The fact that one spouse has earned most of the assets and
the other has kept a home will usually not be a reason for departing from a
50/50 division; that would be discriminatory and therefore unacceptable in the
modern world
5) "Fault" on the part of one or other spouse is not a factor
to be taken into account in the division of assets, unless it is so great that
it cannot be ignored. Those occasions are rare.
6) There are circumstances in which the Court will treat
assets that were owned by one or other spouse before the marriage differently
from assets acquired or developed during the marriage, though that will not
happen unless there is more than enough to satisfy both spouses needs, and not
necessarily even then
7) The Court must always try to create a clean break (apart
from maintenance specifically for children). But where, as is most often the
case, the assets will not stretch far enough to achieve that, on-going
maintenance will usually be ordered.
8) Maintenance calculations may start with the "needs" of the
spouse with the lower earnings, and in that case they will be as large as is
necessary taking into account the paying spouse's earnings, and will last as
long as may be necessary taking account of the receiving spouse's earnings
potential over the years. But maintenance may also be used where, for example,
one spouse gave up work during the marriage to look after children; the
principle is that they can be compensated by maintenance
payments for having lost their own earnings potential by having taken a break,
for the future, as well as for the more obvious loss of the expected share of
their higher-earning spouse's future earnings. However the Court should not
order one spouse to pay the other maintenance to make up for a lost expectation
of a higher standard of living resulting from the now failed marriage.
The main lesson however is that every couple's circumstances
are different, and every judge will have their own view of them. It is
therefore necessary to measure the details carefully against the precise wording
of the law and of these judgements, before trying to predict a range of outcomes
that could be expected if any individual case were to come to Court. It is also
increasingly worth trying to find ways of resolving the financial split without
recourse to the Courts, and for that reason, in addition to the traditional
kind of advice and representation through
the Court system, we are able to offer our clients the alternative of
"collaborative law" resolution which explicitly excludes the Courts. We are happy to discuss the best way forward
in any individual case.
There has also been considerable speculation both in the media
and the profession that many more couples will now consider regulating their
financial relationship before getting married, by means of "pre-nuptial
agreements". This is a complex and even more uncertain area. The only certainty
is that the Courts are not compelled to follow an agreement made between the
parties. The present position seems to be that where couples who enter an
agreement before marrying were separately advised by solicitors, and where it
does not seem that one of them was under heavy pressure at the time they reach
such agreement, then provided at the time of a separation or divorce there is
plenty to go round especially in relation to any children of the marriage,the Court may well follow such a
pre-nuptial agreement, though the less reasonable
the result looks to the Judge the less likely he is to rubber-stamp
it.
Here too we are happy to advise based on a detailed knowledge
of your specific circumstances.
Public awareness of the introduction of Home Information Packs, which are due to become mandatory next June is still at a very low level. The intention of the packs is to prevent gazumping by reducing the amount of time a conveyancing transaction takes and thus the amount of time a seller or buyer has to reconsider. Unfortunately, the way in which HIPs are being implemented means that not only will this objective not be achieved, but it will add very significantly to the costs of a conveyancing transaction - particularly for the seller. We, and we believe most property professionals, consider the introuduction of HIPs to be misguided. We are setting out below the text of a press release issued by opponents to HIPs to try and highlight the difficulties their introduction is likely to cause:
TV PROPERTY EXPERTS BACK ANTI-HOME INFORMATION PACK CAMPAIGN.
Kirstie Allsopp and Phil Spencer, co-presenters of the immensely popular television series 'Location, Location, Location' have thrown their weight behind the campaign to stop of the implementation of the unpopular Home Information Pack (HIPs) due to be made mandatory for all home sellers in June 2007.
An open letter from the pair is being circulated to thousands of members of the public through the supporters of the SPLINTA (Sellers Pack Law is not the Answer) campaign which comprises 1,300 firms of estate agents, surveyors and solicitor/conveyancers with 2,682 offices in England and Wales. The letter urges the public to tell their Members of Parliament that they do not want HIPs brought in.
Allsopp and Spencer warn that HIPs could have a devasting effect on the property market and cost consumers a great deal of money without solving the inherent problems involved in home buying and selling.
"The government thinks this is a great scheme but we believe the HIP is bad news for you, the consumer. It could ruin the property market and will fail to significantly improve the home buying process. The additional costs will outweigh any possible benefits." A pack is likely to cost on average between £600 and £1,000 + VAT.
Noting that, "the only people who will benefit from these packs are the companies that will make a fortune out of compiling them - and the government who will get hundreds of millions of pounds each year in extra VAT revenue" the couple say they would like to see cost-effective changes made that would really improve the home buying process, but that HIPs is not the way forward. "Gazumping, gazundering, chains, and the fact that sales fall through because people simply change their minds, will, sadly, all still be facts of property life after HIPs comes into force."
Nick Salmon of SPLINTA warmly welcomed the involvement of Kirstie Allsopp and Phil Spencer in the campaign. " In the face of the spin that is being put on HIPs by the government it is essential that the public is made aware of the real downsides of the scheme. Kirstie and Phil are well known, respected figures who understand the issues and can communicate them very effectively on our behalf. They will have a major impact on public awareness. The substantial numbers of property industry firms signed up to the campaign have direct access to the tens of thousands of home buyers and sellers and the letter is having a huge effect on the public's perception of HIPs. Ordinary people are now signing up to the campaign. This is 'Prescott's Penalty' on the property market and it must be stopped"
Anyone who owns property which
they let out, should be aware of the provisions of the Housing Act 2004 which come into effect later this year. It provides that all houses of 3 or more storeys, (in some local authority areas
all houses of 2 or more storeys), which
are let out to persons from more than one family, will be deemed to be "Houses in Multiple Occupation"
and will need to be licenced as such.This will require them to comply with various standards. Failure to license, or failure to achieve the required
standards, could be serious.
We are asked fairly frequently during the course of a residential property transaction whether some of the price can be apportioned to 'fixtures and fittings'. Less frequently we simply receive estate agent's details which show a purchase price and then a separate agreed amount for fixtures and fittings. The purpose obviously is to reduce the amount of stamp duty land tax where otherwise one of the SDLT thresholds would be crossed, putting the SDLT into a higher percentage.
We have always advised caution in these circumstances because of the consequences to all concerned, if stamp duty is found to be evaded. Loose chattels can legitimately be sold separately although the price must be the second hand value; fixtures and fittings cannot and the difference between the two is crucial.
The Inland Revenue has just published some guidance, which whilst not new, is nevertheless useful. We quote directly from their website:
The following items are, however, confirmed as being assets
that will normally be regarded as chattels
carpets (fitted or otherwise)
curtains and blinds
free standing furniture
kitchen white goods
electric and gas fires (provided that they
can be removed by disconnection from the power supply without
causing damage to the property)
light shades and fittings (unless
recessed)
On the other hand, the following items will not normally be
regarded as chattels
fitted kitchen units, cupboards and
sinks
agas and wall mounted ovens
fitted bathroom sanitary ware
central heating systems
intruder alarm systems
Externally, any plants, shrubs or trees growing in the soil
which forms part of the land, are not to be regarded as chattels.
A deduction would, however, be appropriate for amounts
properly apportioned to any plants growing in pots or containers.
From October 2006 discrimination on the grounds of age will be
prohibited. This applies across all areas of employment, including not only
hiring and firing but even retirement, though employers will be permitted to
have a standard retirement age of 65. It will also apply more generally, as
race and sex discrimination rules do, though there will be certain permitted
exclusions.
If you hire workers from employment agencies over a long
period, beware. Until about two years ago it was absolutely clear that such
workers were self-employed, and did not have any employment rights against
either the agency or the "end-user" however long they remained in the same
work. But a series of decisions in the Court of Appeal has thrown this whole
area into doubt and there are now circumstances in which the worker may gain
such rights against one or the other, and particularly there may not be a
possibility of Unfair Dismissal claims.
For advice to users of agency workers about measures that you
can take to protect your position, or to those who work in this way as to
whether you are likely to have acquired any rights, please contact Richard
Apley
For same-sex couples the law
has recently changed dramatically: under the Civil Partnership Act they are now
able to go through a civil ceremony which gives them almost identical rights to
married couples. This applies not only to Inheritance Tax (discussed in our
Article headed "Civil Partnerships" on this site) but also to all the
difficulties that can arise on divorce.
Unmarried opposite-sex couples
can obtain those rights too, by going through the marriage ceremony; but if they
chose not to do so, they take a considerable risk. Large numbers of people still
believe that if a woman lives with a man for a few years she becomes his "Common
Law Wife", and that if the relationship then breaks down she will have many of
the same rights as a legal wife. Unfortunately for many women in that position,
the law of Common Law Wives was abolished in 1763, and an unmarried partner
today has far less protection when her relationship breaks down than a wife,
even if she is bringing up children born in the relationship.
For advice in this complex and
fast-moving area of law, please contact Richard Apley
Earlier this year we reported on the recent High Court case which seemed to indicate that a claim based on adverse possession, i.e. obtaining land by 'squatting', was against Article 1 of the Human Rights Acts. This case has been appealed right up to the Court of Human Rights, which has confirmed that dispossessing someone of their land by 'squatting' infringes their human rights.
As reported in one of our earlier articles, the Land Registration Act 2002 has made fundamental changes to the way claims based on adverse possession work when dealing with registered land. It may be that because of the changes there may be no infringement of human rights in registered land cases. However, it seems certain that when unregistered land is involved, and there is plenty of land that still remains unregistered at the Land Registry, it could now be the end of adverse possession. How this will affect conveyancing, where we routinely deal with boundary changes that have happened over the years, remains to be seen.
Perhaps surprisingly for a small high street firm, we do our fair share of software licensing and other computer related law. The recent case of Clearsprings Management Ltd v BusinessLinx Ltd has highlighted the importance of clients and software developers spelling out what needs to happen with regard to the ownership of software which is being developed for them. Specifically the case has the following practical implications:
Clients do not automatically own the copyright in all the software developed for them unless they have agreed otherwise.
Clients should ensure that they have a written agreement with the software developer specifially stating who owns what.
Developers are permitted to reuse existing software but client specific parts might have restricted use.
Whilst the law states that the developer will automatically be the first owner of the copyright (unless otherwise agreed), it is essential to have a written agreement so that there can be no ambiguity in the future.
We are very proud to act not just for one of the finalists in the Henley Business Awards but three! Our congratulations to The Aroma Company, Wallingford who were finalists in the Small Business of the Year and Innovative Business of the Year categories; to Orbis Resourcing in Goring who were finalists in the Growing Business of the Year category; and to Gareth Astley of Astley Audio in Wallingford who was a finalist in the Boss of the Year category.
From the 19th June next year the world of leases will be thrown into turmoil by new Land Registry rules which come into force then. Under the present Land Registry Act, all leases which are for more than 7 years, or which have a term that comes into effect more than 3 months after the lease is granted, or which indeed grant rights over other land, are registrable at the Land Registry. From the 19th June next year such leases have to be in a prescribed form with a prescribed numbering system. For landlords who deal with their own lease renewals, simply sending out their standard form of lease will no longer be possible.
The idea behind the new rules is to make it easier for the Land Registry to identify certain clauses in the lease without having to plough through the many pages of non-standard clauses which exist at present. Bearing in mind that the Land Registry intends to make all leases over 3 years long compulsorily registerable, now might be a good time for commercial landlords to review their leases.
The Office of Fair Trading has recently (7th September), issued new guidance on how the Unfair Terms in Consumer Contracts Regulations apply to tenancy agreements. This guidance has been issued following recent revision of earlier legislation and recent court cases, in particular a judicial review of a decision by Newnham Council.
The unfair contract legislation has always very clearly been applicable to tenancy agreements, although this has not always been appreciated by landlords (or indeed tenants). The legislation applies where the supplier, in this case the Landlord, enters into the contract in the course of his business. It would be rare that this wouldn't be the case. Similarly, in the case of a letting of a domestic dwelling, the tenant is in the position of 'consumer' under the legislation.
The effect of the legislation is that any 'standard' terms imposed on the tenant, without an opportunity to negotiate them, create a presumption that they are unfair unless the Landlord can prove to the contrary. Any unfair term is in effect unenforceable.
In the Office of Fair Trading's guidance on its website it illustrates some unfair contract terms as terms which have the effect of:
excluding or limiting the landlord's liability
imposing excessive penalties in tenants
enabling the landlord to vary the terms of the contract
There is a slightly less than user friendly guidance document consisting of almost 200 pages which gives examples of existing clauses and suggests alternatives which would be considered more acceptable. It may be time for landlords to look again at their standard agreements.
The Civil Partnership Act comes into effect from 5th December 2005 and creates a new legal status of 'civil partner' for those same sex couples who register their relationship with the authorities.
Parallel legislation in the Finance Act 2005 authorises the Treasury to issue regulations enabling a n individual to make lifetime gifts and bequests on death to his or her civil partner with the benefit of the same inheritance tax exemption that currently applies to married couples.
However civil partners also need to be aware of the potential tax 'downsides' which will also apply as to married couples.
The cost in Inheritance Tax by not having tax effective Wills is one example where registering as a civil partnership could prove very expensive. Typically civil partners with assets between them in excess of £550,000 could pay up to £110,000 of Inheritance Tax unnecessarily.
Even more important is that pre existing Wills are automatically revoked upon registration of the Civil Partnership. It is essential that fresh Wills written specifically in anticipation of the civil partnership are put in place before the happy day.
We are always very happy to discuss your plans and either Anthony Guy or Nadine Hughes will be pleased to help ensure everything is correctly in place. They can be contacted on 01491 879100 or by email.
Public Accounts Committee report on Inheritance Tax
19th July 2005
The House of Commons Public Accounts Committee (PAC) has urged HM Revenue and Customs to get tough on Inheritance Tax (IHT) fraud, negligence and avoidance, while simplifying its systems to make life easier for bereaved relatives. These were among the conclusions of the PAC report on Inheritance Tax, which was published on 12 July 2005.
The all-party Committee of MPs advocated that IHT fraud and negligence should be punished more harshly, by increasing the penalties levied not only to encourage representatives to disclose errors voluntarily, but also to deter them from being negligent in submitting inaccurate returns in the first place.
However, that heavy handed approach may not be appropriate for people who are unexpectedly caught in the IHT net. Inflation has now brought many ordinary people into the IHT band just because they own a propertyand their bereaved relatives are likely to be very stressed, perhaps elderly, and they may have little knowledge of IHT because they never expected to have to pay it.
Nevertheless this re-emphasises the need for clients to ensure they leave their affairs in order with up to date tax effective Wills and experienced Executors appointed to administer their estate and to deal with HM Revenue & Customs. If you would like us to assist in a review of your planning in this respect please contact either Karen Charles, Nadine Hughes or Anthony Guy
We are delighted to welcome Nadine Hughes to our private client department. Nadine was previously a senior tax manager with Grant Thornton and specialises in trusts, tax and tax savings schemes for our private clients.
Government expects inheritance tax to catch more estates - will you help them redistribute your wealth?
8th June 2005
The Government has estimated that 37,000 estates will pay inheritance tax in the current tax year 2005/06.
Some 30,000 estates paid IHT in 2003/04, 34,000 paid the tax in 2004/05.
The number of estates paying IHT in 2004/05 would have reduced to an estimated 28,000 if the threshold for that year had been £300,000, and to 12,000 if the threshold had been £450,000.
Gordon Brown set the threshold at £275,000 for 2005/06, with further increases to follow in successive years to £285,000 and then £300,000.
Ninety-four per cent of estates "will pay no inheritance tax", Brown added in his Budget speech.
If, and we can only guess, Brown had indeed included all estates and therefore in that percentage all the estates passing to the surviving spouse of a marriage or to charity which are exempt, he may just have overlooked that the percentage with IHT payable is much higher if you count only those estates with no exemption.
In this region property prices alone mean that many of our client's children face substantial IHT bills when they inherit estates on the death of the surviving parent unless action is taken now to mitigate the impact; even the proposed increases in the threshold over the next few years will have little effect.
Single people can also use charitable gifts to make their own choice of wealth redistribution in very tax effective ways.
Please look at our 'on line' Information sheets for further information and if you are concerned that your Wills are not up to date then we are always pleased to meet you to discuss some of the options that may be available.
Service Charges - New rules on consultation for major works
6th June 2005
Under rules that came into force last year, if a landlord intends to carry out work on the building, which will cost an individual tenant more than £250, he must give each tenant written notice on two separate occasions. First, he must tell them what he intends to do, and must invite them to nominate a contractor in addition to any he has in mind. He must then seek estimates from at least one of theirs as well as his own choices. Then he must give the tenants a second written notice, containing the estimates, and there must be at least one from a nominee of theirs, He does not finally have to appoint the tenants’ nominee to carry out the work, but must be able to show that he has considered any comments they have made relating to their nominee.
If the landlord fails to go through any part of this consultation process, then he will not be able to oblige any tenant to pay more than £250, however much the work cost.
This is just one of a large number of rules about service charges; our landlord and tenant department will be happy to advise further.
Richard Apley or Bryn Howell-Pryce
Did you know that if someone won’t pay you money that they owe you, you can start a Court claim against them on-line? The Court Services web-site at www.moneyclaim.gov.uk provides a simple step by step description of how to start court proceedings from your desk. All you have to do is complete the on-line form and pay the Court fee by credit card: the papers will be delivered to the debtor within a few days.
You should keep a note of the date when the papers go out from the Court, because if the debtor does not reply within 14 days you may be able to obtain Judgement against them, also on-line, within just a few days; then you are entitled to send a Court bailiff or take one of a number of other permitted steps to collect your money.
If the debtor does seek to defend, you may be wise to consult a solicitor: our litigation department will be happy to advise.
High hedges seem to cause more trouble than almost anything else - particularly the Leylandii variety. The government has been threatening to bring in legislation for some time to deal with this, and at last it has come into force. It is contained in the Anti-Social Behaviour Act 2003 which came into force as regards hedges in April this year. It only applies to domestic property, so commercial property, which is generally less affected anyway, cannot take advantage of the Act. The provisions apply to hedges more than 2 metres high, with a hedge being defined as 2 or more evergreen or semi-evergreen shrubs. It does not apply therefore to single trees.
If you feel that your 'reasonable enjoyment' of your property is adversely affected by the height of the hedge you can make a complaint to your local authority. Ultimately the local authority can make an order for works to be carried out to the hedge or can carry out the work itself.
The law about adverse possession, sometimes called squatters rights, is increasingly under attack. The old law, which still applies to unregistered land, is that you need to show adverse possession for 12 years. If you can show this then you can apply to the Land Registry to have your title registered. Although, they have tightened up on this over the years, generally if you can show that the land has been fenced you stand a good chance of obtaining a possessory title.
The position with registered land is now more complicated due to the Land Registration Act 2002. Whilst this reduced the adverse possession time to 10 years, it is now very difficult to obtain adverse possession against a land owner who objects to the claim - provided he actually takes steps to do something about the squatter.
However, there now seems from a recent High Court case, to be a strong argument for saying that the whole concept of adverse possession is against Article 1 of the Human Rights Act. In that case the High Court threw out a claim for adverse possession on those very grounds. It may be therefore that we are seeing the end of the whole concept of adverse possession.
If you think you have a claim then the advice must be to get on with it quickly - because it may soon be too late!
A recent survey of some of the top London law firms brought into sharp focus, just how much of a problem email 'spam' has become. Clifford Chance reported that as much as 80% of the emails it receives is spam. The problem is even worse at Herbert Smith who reckon that an incredible 97.7% of the 18 million emails it receives each month are spam.
We too suffer from spam and have filters and management systems in place to filter it out. Unfortunately, occasionally genuine emails are mis-identified and are either 'bounced' or simply quarantined in our system. If you don't get a reply to an email from us please don't assume we are not collecting our emails. All of us in the office have an 'always on' system and the firm's policy is to reply to emails in a timely manner. The more likely explanation is that you have become a victim of a modern scourge, in which case please ensure you follow up any vital emails with a phone call.
Overage agreements are agreements where a payment is to be made some time in the future in the event of planning permission being granted on a piece of land. They seem to be all the rage at the moment as we have been dealing with no less than four of them in the last few weeks. Typically they happen when a property is sold with possible potential for development and the seller wants to ensure that if planning permission is granted he or she gets some financial benefit. Equally typically, clients are not entirely clear in their own minds how the overage should work; how long does the agreement last; is outline or detailed planning permission envisaged; should it be a fixed sum or a percentage; a percentage of what? If you are comtemplating an overage agreement then it really is essential that you should discuss it with us at early stage to avoid negotiations getting off to an ambiguous start.
Those of you who have instructed us recently in a conveyancing transaction (either residential or commercial) will be aware of the new SDLT forms which have to be signed. You will be glad to hear that, whilst these are the purchaser's responsibility to complete, we complete them on your behalf as, in practice it is impossible to do so without recourse to the numerous codes which sprinkle the forms. We do make a modest charge for doing so however.
What has become apparent is that the Inland Revenue are taking a much tougher line in dealing with forms which are returned late. Under the old Stamp Duty regime it was extremely rare for penalties to be imposed because a form was submitted late. Under the new regime, any form which is submitted after the 30 days deadline receives an automatic penalty of £100. Whilst we try and get the forms completed in a timely fashion, it is sometimes impossible to do so, especially where completion follows very quickly after exchange. It is therefore of the utmost importance to sign them and return them to us quickly and not file them under a removal box.
Another point to highlight with the new legislation is that the tax is not a tax on a document but a tax on a transaction. The full amount of the transaction, which includes incentives such as apportionments of fixtures and fittings, paying the estate agents' commission (if you are a buyer), etc etc, all form part of the consideration and are liable to SDLT. If you don't declare it then you commit a criminal offence. Furthermore, the whole point of the new computerised forms is that it makes it easy for the Inland Revenue to trawl through them and pick out any transactions which are on the cusp of the stamp duty bands and therefore potentially structured to avoid (or evade) higher stamp duty.
As we hope all of our clients will now know, from the 6th April our Pangbourne Office, which has for many years operated independently, will formalise that arrangement and operate as an independent firm. We will continue as before - very much 'business as usual'. The only difference which clients will notice from our notepaper, is that we have taken advantage of the rules that now allow professional firms to incorporate as a limited company. From the 6th April therefore we shall be 'Richard Wilson & Co, a trading name of Richard Wilson Solicitors Limited.' Our standards of service, and focus on our clients' needs, will remain unchanged.
We are doubtless all plagued by 'spam', the ever proliferating junk mail which fills our electronic in boxes. The Privacy and Electronic Communications Regulations 2003 came into force on the 11th December and implement a European Directive to limit the amount of unsolicited emails which individuals receive. The fact that most 'spam' originates outside the European Union means, we suspect, that its immediate impact is likely to be small.
However, the Regulations do have an impact on direct marketing by electronic means, which of course is not limited to email but covers SMS messages as well. Essentially, an individual can only opt-in to receive unsolicited messages by positively giving their consent. Further the consent must be informed and the individual must realise what it is they are consenting to. The only exception is the 'soft opt-in' where existing customers are allowed to be contacted provided
· the marketing in question is for similar products or services;
· the target was given a chance to refuse marketing material at the time of the original request;
· the target is given the chance to opt-out on each further occasion.
On all occasions there must be a valid return email address (no more disguised emails), and there must be a simple means by which individuals can unsubscribe.
These Regulations only apply to individuals. Businesses can still be contacted as before. However, there is one very important anomaly. Partnerships and sole traders are treated as individuals and so cannot now be the victim of unsolicited direct marketing.
The Regulations also regulate the way cookies are handled on web sites. From December 11th it is mandatory before installing any cookie, (which includes any similar device or 'spyware'), to tell the user the purpose for which it will be used and to allow the user to refuse it.
There is no doubt that the Regulations will prove a challenge to any organisation that uses direct marketing and in particular which buys or rents marketing lists.
This might not be the end of 'spam' but it might be the beginning of the end.
For more details contact Bryn Howell-Pryce
We have long since advocated the benefits of legal expenses cover and indeed are delighted to find more and more of our clients have availed themselves of this cost effective benefit. The question which most often arises once the cover is identified is “Can I use you, Richard Wilson & Co?”
Such cover is simply a means of funding your legal costs and you cannot be forced into using the providers choice of legal representative. Most policies do allow for the provider to nominate a solicitor and often the insured is content with their choice. However rarely do you get the personal service we can offer: panel solicitors are usually not local, are faceless and will never speak to you personally. Industry practice is for the provider to say they will not pay for your choice of solicitor until proceedings issue. We have always argued it is contrary to public policy but have yet to test the argument since most providers capitulate and indemnify for costs incurred, albeit sometimes at the level paid to their panel.
You do have the right to nominate your own solicitor. The Insurance Companies (Legal Expenses Insurance) Regulations 1990 give the insured the right (a) where recourse is had to a lawyer… to defend, represent or serve the interests of the insured person in any enquiry or proceedings and (b) where a conflict of interest arises.
Providers bank on the basis you are ignorant of this and once with their panel solicitors will be disinclined to change representation once proceedings issue. The introduction of pre-action protocol procedures means earlier enquiries and the right in (a) above to choose your own representation at the early crucial stage or if any offer is made or issue arises as to whether there is a valid claim at all to be pursued the automatic right in (b) above in any event.
Bargain holidays or indeed any holiday abroad may turn sour if you are unfortunate enough to be injured. Did you take out insurance and if you did does it actually cover you? In these troubled times policies will automatically exclude war and acts of terrorism but what is actually covered outside of those exclusions may be very limited.
Typically, cover is only for major injuries and often capped at a low figure. Most would be claimants will have to content themselves with inadequate compensation or consider suing someone rather than claiming under their policy.
Most policies will cover “legal advice and expenses”, again probably with a cap and generally there are 2 major exclusions:
1. you are not normally covered to sue your travel agent, tour operator, tour organiser, carrier, insurers, agents or the claims office; the obvious remedy for Package holidays i.e. sue the tour operator is excluded.
2. any claim against another insured member of your party is usually excluded. So if you are injured in a car crash where your party was driving you cannot claim.
If you decide to sue abroad because your costs of suing are paid under your policy remember most policies have a clause requiring you to repay those costs out of your compensation. Where you sue is important. Some jurisdictions have limited costs recovery and low levels of compensation. So it may not be worth suing at all unless you can recover substantially more than those costs.
Always check the ambit of your cover carefully; don’t just buy the cheapest option as with all things you get what you pay for. If after the event your cover is insufficient for your needs check your motor and household policies to see if you have cover there.
The Proceeds Of Crime Act 2002 came into force on 24 February 2003 and has far reaching implications for us as your solicitors and professional advisers and you our clients.
The Act backs up the provisions of the Terrorism Act 2000 and the Money Laundering Regulations 1993 but far from targeting a narrow group of very well-off criminals it extends to anyone involved in criminal activity, no matter how minor in nature.
Prior to 24 February 2003 prosecutions would lie against those involved in money laundering offences restricted to the crimes of drug trafficking and terrorism. This Act and its controls now extend to any criminal property, which includes the proceeds of any crime.
This means as solicitors we are required to take action whenever we have knowledge or the reasonable suspicion of the existence of the proceeds of all and any criminal conduct.
The definitions of criminal conduct and criminal property are so wide that they cover the multi-million pound drug runner to the sole trader window cleaner.
However we come across criminal activity be it by our own client or any party there is a complex reporting process. We cannot alert the wrongdoer to our suspicions as that in itself is an offence and we do not have any desire to be prosecuted ourselves! As your professional advisers we foresee all sorts of potential conflict problems because of the hitherto sacroscant confidential nature of the solicitor-client relationship. While there remains an exception for legal privilege it appears worthless.
This article is intended to deal with how we as solicitors have to deal with matters: Part 7 of the Act creates offences which can affect everyone. Those in the regulated sector as defined (see Schedule 9 of the Act) are bound to disclose what they know and commit offences themselves if they do not do so. The maximum sentence for failure to disclose is 5 years imprisonment, a fine or both. For concealing, becoming involved with or utilising in any way criminal property is maximum sentence is 14 years imprisonment, a fine or both.
Have we become agents of the state? It certainly feels like it!
Act 1: a trader gives you a quote for a job and it’s an inclusive price. For cash the trader will give you a discount equivalent to no VAT.
Act 2: If you agree to pay cash on that basis neither party can sue on the contract. So if you don’t pay, the trader can’t sue you for the money and if the work is defective you can’t sue either. This is because the cash basis agreement is illegal in that the builder does not have to pay VAT: an agreement to perform a contract illegally is unenforceable.
Act 3: There is nothing wrong with cash payments in themselves even if you suspect the cash may never be declared to the Revenue. But agreeing to a contract which is intended to avoid VAT being paid to Customs & Excise is wrong: you will have no civil remedy in the event of a problem and could be implicated in VAT fraud.
The Land Registration Act 2002, which comes into effect in October this year, represents the biggest shake-up in conveyancing for over 75 years. The intention is make every piece of land in England and Wales registered, and to bring onto the Register those remaining 20% or so of properties which are not registered at the moment. It also intends to ensure that the Register truly gives a definite statement of all the rights and other matters which affect a piece of land. At the moment this is not the case and certain rights which affect land, even though legally binding, do not appear on the Register.
One of the major changes will be in the way that ‘adverse possession’ is dealt with, i.e. land which has a ‘squatters’ title. After October it will be very difficult to register adverse possession against the owner of land whose title is already registered. If you are in this position then you would be advised to try and obtain title now, before the law changes in October.
For more information contact Bryn Howell-Pryce (bhp@richard-wilson.co.uk) or Anjam Beg (anjam@richard-wilson.co.uk).
Richard Wilson & Co is a trading name of Richard Wilson Solicitors Ltd.
Registered in England Company number 5393894.
Registered office Cymbal House, High Street, Goring on Thames, RG8 9AU
Changes to Company legislation From the 6th April it is no longer necessary for private companies to have a company secretary. However, existing companies will need to.....
Directors' duties From the 1st October all directors of companies have had to exercise five core duties when making decisions that bind their companies. They.....
About us