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Take Notice of Notice Provisions

Commercial leases typically contain a clause dealing with notices and how they should be served by one party to the lease upon the other during the term.  Notices may need to be served pursuant to a lease for a number of reasons, such as to exercise a break clause or option to renew, or in cases where the landlord is notifying the tenant of a breach which the tenant is required to remedy.

Correct service in accordance with the express provisions of the lease is important, to avoid invalidating the notice.

Going Green with Solar Panels

With the regulations surrounding energy performance in households changing from 1 April 2018, an increasing amount of homeowners are installing solar panels, offering them a chance to increase their property’s energy efficiency whilst earning money by producing electricity.

Installing solar panels may seem like an attractive proposition, but there are a number of important legal considerations which need to be assessed before proceeding.

Planning Permission

You will not normally need planning permission from the local authority before installing panels because their installation is classed as General Permitted Development. However, to come within this definition, solar panels should not be installed above the highest part of the roof and should not project more than 200mm from the roof slope or wall surface.

Further, if your property is a listed building or in a Conservation Area, National Park or World Heritage Site, you will need planning permission.

Myerson in ground-breaking court case against banks

Myerson Solicitors have been in the Court of Appeal this week taking on two major high street banks in cutting-edge litigation case brought by one of its property investment clients, CGL Group Limited, against the Royal Bank of Scotland and NatWest for the mis-selling of two interest rate hedging products (IRHPs) in 2006 and 2007.

The Appeal focused on the question of whether the bank negligently conducted its IRHP redress scheme.  When granting CGL permission to appeal, Lord Justice Floyd recognised not only that CGL’s grounds of appeal have real prospect of success but also that “there is a wider question of principle at stake amounting to a compelling reason to hear the appeal”.  The Court of Appeal’s decision in this case will shape the future in terms of how other IRHP mis-selling cases will be decided in Courts across the country.

Appointing a Guardian to deal with a missing person’s estate

On 1st October 2014, the Presumption of Death Act 2013 came into force which allows the court to make a declaration that a person who is not known to be alive for at least 7 years, to be presumed dead.  This then allows for family members to deal with the estate in accordance with that person’s Will or the rules of Intestacy if they did not have a Will but what happens during that 7 year period?

What are your duties as a Trustee?

When you have been appointed as a Trustee, you will have certain duties to carry out and obligations to comply with and if you do not comply, you may be held personally liable for any breaches of those duties.  One of those duties was reviewed in the recent case of Henchley v Thompson [2017] EWHC 225 (ch), where Chief Master Marsh had to consider the circumstances in which a Trustee will be ordered to account to the beneficiaries for his dealing with the trust assets.

Beards and stubble deemed Health & Safety risk

A construction company, Mears Group, has banned its workers from having beards or heavy stubble, on the grounds of health and safety.

In a memo leaked to the media, the company explained the purpose of the new policy was to ensure that face masks were effective in dusty environments, and to reduce the risk of respiratory conditions. The company insists that staff should attend work clean-shaven so that the edge of the face mask is properly sealed against the skin.

Further fines issued as ICO maintains tough stance on data breaches

At some time or another, most of us will have received one of those annoying marketing calls, texts or emails asking if we’ve been involved in a road traffic accident or been mis-sold PPI, and have no doubt responded with “how did you get this number?” or simply blocked the caller. However, what many of us don’t realise is that at some point we will have either expressly or (more likely) inadvertently given our consent to being contacted by these parties for marketing purposes. This can be, for example, when we make an online purchase or enter a competition and omit to tick that tiny box to confirm that we don’t actually want to receive such marketing communications!

Allotments De-listed as an Asset of Community Value to make way for Development

A tribunal held in the case of New Barrow v Ribble Valley Borough Council that the land listed as an asset of community value (ACV) and used as allotments should be delisted to allow the land to be used as part of a development for new houses.

Land can be registered as an ACV if its use is for the wellbeing or social interest of the local community, and there is a realistic prospect of this use continuing. Planning permission was given to New Barrow for the development of 504 new homes in 2014. The council listed the allotments as an ACV in 2016 after the allotment holders had received termination notices.

Is your Business ready for GDPR?

GDPR is the EU’s General Data Protection Regulation which will replace current data protection laws with effect from 25th May 2018.  The countdown has started and, irrespective of Brexit, UK businesses must now prepare to comply with GDPR by next May’s deadline – there is much to do.

The EU Regulation is a response to advances in technology, the way businesses use technology and data and the consequential privacy risks for consumers and employees.  The new law represents the biggest shake up in the data protection arena in 20 years, introducing stringent compliance requirements and tough penalties in the event of breach of data protection principles.

The de-linking of divorce and financial claims

The President of the Family Division, Sir James Munby, has called for a “complete de-linking” of divorce and financial claims within the court process. This would mean that they would be dealt with as entirely separately processes, albeit you would still be unable to issue financial remedy proceedings until after divorce proceedings have been issued.

Sir Munby outlined his reasoning as follows:-

  1. Only a small number of divorces give rise to financial claims;
  2. Divorce itself is a largely administrative process and judicial involvement has always been limited. By contrast, judicial involvement in financial remedy proceedings is significant;
  3. Divorce cases are now being dealt with by centralised regional divorce courts;
  4. Financial remedy proceedings are not the only financial proceedings dealt with by the family courts. There can be claims on overseas divorces under Part III of the Matrimonial and Family Proceedings Act 1984, claims under Schedule 1 Children Act 1989, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996.

Replies to Commercial Property Standard Enquiries (CPSEs)

Replying to commercial property standard enquiries can be frustrating, time consuming and feel purposeless. CPSEs are designed to cover many different scenarios, so there are often questions that do not apply to a given transaction. It is important, however, to take care answering each question and not to provide routine responses as this can have consequences for the seller – read below to find out why.

Why were CPSEs introduced?

Sellers will usually be asked the same enquiries in all transactions, with numerous non-standard questions being asked from different firms of solicitors. CPSEs were introduced in 2002 to help speed up commercial property transactions and streamline the enquiry process. Responding to CPSEs aims to ensure that the buyer has all the information about the property before proceeding with the purchase.

Record £453 million divorce settlement

The wife of a wealthy oil trader has been awarded £453m in a record divorce settlement, once again supporting the theory that London is the “divorce capital of the world”.

The parties met in Moscow in 1989. They were married and moved to London 1993 and had two children. For tax purposes, the 61 year old husband was not resident in the UK and could only spend 90 days per year at their home in London. By contrast, the 44 year old wife obtained UK citizenship early on in the marriage. The parties therefore spent time together in London and at their holiday homes in France and the Maldives.

The husband had numerous affairs throughout the 25 year marriage, even fathering a child to another woman in 2013. The wife also admitted to having affairs but maintained that their marriage had “survived” and that they were still very much a couple throughout, sharing the same bed and enjoying holidays and family outings.

Mooring a boat – do you have squatters’ rights?

In Port of London Authority v Mendoza, the Upper Tribunal considered whether the owner of a houseboat had acquired a stretch of the River Thames by adverse possession.

Mr Mendoza attempted to claim possession of a stretch of Thames riverbed and foreshore on the basis that, although the Port of London Authority had title to the land, Mr Mendoza’s boat had been moored there for over 12 years and he had therefore acquired the land by adverse possession.

Accountant Awarded £182,000 in Age Discrimination Claim

Mr Peters was employed by Rock Oil for 16 years as the Company Accountant. At the time of his dismissal on 13 January 2015 he was aged 67. The company argued that they dismissed Mr Peters for conduct reasons, but Mr Peters succeeded in his claim that the true reason for the dismissal was his age.

In 2009 the company, which was predominantly a family-run business, became concerned that most of the senior roles were occupied by managers approaching retirement age, and succession planning needed to be considered. In December 2011 the company hired another accountant. Initially he was deployed into a different area of the business. However, he was introduced to many people as Mr Peters’ successor.

Keeping Your Options Open

With a surge in development being seen across the UK and following the release of the government’s Housing white paper setting out plans to boost the supply of new homes in England, it is perhaps no coincidence that lately we have experienced an increase in the number of enquiries received in relation to land option agreements.

A land option agreement is a contract in which a potential purchaser or developer of land pays the landowner a non-refundable sum of money in return for a legally binding right (but not an obligation) to buy the land on or before a certain date or after certain conditions are met (such as the grant of planning permission).

Unenforceable side letters – a warning for landlords

It is common for commercial landlords and tenants to document agreements, different to those agreed in the lease, in a separate side letter. One of the most common agreements seen in a side letter is that the tenant will benefit from a rent concession. The agreements contained in the side letter are often subject to certain conditions and the arrangement is, on the face of the document, terminable as set out in the letter.

The recent case of Vivienne Westwood v Conduit Street Development concerns whether a term entitling the landlord to terminate the effect of a side letter documenting a rent concession, was enforceable.

The New Electronic Communications Code

As we move further into the digital age, telecommunications technology continues to make significant advances. To reflect these advances, the government has confirmed that they are planning to implement substantial changes to existing telecommunications legislation by introducing a new updated Electronic Communications Code (“the Code”).

The Electronic Communications Code was originally enacted in 1984 in order to give telephone companies a statutory basis to install and keep landline equipment on land. This meant that even if a landowner refused to permit the installation of telecommunications equipment on their land, operators had the power to apply for a Court Order overriding the landowner’s wishes. Due to advances in digital technology, the Electronic Communications Code is now widely thought to be outdated, overly complex and difficult to apply. The government hope that the introduction of the new Code (as part of the Digital Economy Act) will promote investment in new communication technologies and provide operators with the freedom to expand and improve their networks.

What does the Snap Election mean for the UK housing market?

Last week Theresa May called for a snap General Election, and her surprise announcement affected markets worldwide. This raises questions as to how the upcoming elections on 8th June affect the UK property industry.

May’s call for a snap election in 2017 will mark the third consecutive year where the British public have been required to vote, following the EU referendum last year and a General Election in May 2016. Homeowners across the UK will be concerned with how instability in the political arena could affect the value of their property. This has also prompted mixed reactions from experts in the industry. Whilst welcoming the potential for a clear government mandate to deliver Brexit, the election could cause a short-term delay in market activity.

Law Student with Asperger’s succeeds in Disability Discrimination Claim

A law student has succeeded in her claim of disability discrimination against the Government Legal Service (GLS) after being turned down for a trainee position. Not only did her claim succeed, but she represented herself in person at the hearings, both at the Employment Tribunal and at the Employment Appeal Tribunal.

The claimant, Ms Terri Brookes, was diagnosed with Asperger’s syndrome in 2009. She applied for a trainee position with the GLS in 2015. Each year the GLS receives thousands of applications for around 35 trainee places. These statistics led the judge to refer to the GLS scheme as “a fiendishly competitive recruitment process”. As part of the selection process the GLS followed a common practice in recruitment by conducting an online psychometric test based on a multiple-choice answer format.

Combatting Unfair Lease Terms

In December 2016 we produced a blog about the onerous terms which are appearing in leases for new build properties which could have an effect on saleability. One of the examples we looked at was the review of ground rent over the term of the lease which, if increased too highly and too often, could result in the property becoming difficult to sell or re-mortgage.

It is becoming increasingly more common for new build houses to be sold with leasehold tenure and not as freeholds and so it is important that purchasers are advised appropriately as to the potential risks involved, particularly those arising out of the drafting of the lease.

Crossing the thin blue line: Greater Manchester Police fined for data security breach

Greater Manchester Police (GMP) has been fined £150,000 by the Information Commissioner’s Office (ICO) for breach of the Data Protection Act 1998 (DPA), showing that no organisation is above the law when it comes to the ICO’s tough stance on data security.

In 2015, GMP sent DVDs containing footage of interviews with named victims of violent or sexual crimes to the National Crime Agency. The DVDs were unencrypted. They were sent by recorded delivery, but were never received and have not been recovered to date.

‘Inequitable to disregard’ – Can bad conduct affect a financial settlement of a divorce?

Behaviour is one of the most common grounds for filing for a divorce. Under current national law, section 1 (2) Matrimonial Causes Act 1973, any person wishing to proceed with a divorce without a period of two years’ separation from their spouse must justify this on the grounds of infidelity or ‘unreasonable behaviour’.

Providing for Fido

You may have recently seen on soap-drama Coronation Street that David Platt has unexpectedly been left a pet in a Will (David the dog), along with a cash legacy of £20,000. Leaving animals in Wills is becoming more common as in many UK households, pets are considered part of the family.

If you would like to leave a provision in your Will to make sure that your pet is provided for after your death, please read this blog as it aims to make you aware of factors you may wish to consider before taking this approach.

Mind (and report) the Gap

The Government’s website for uploading affected employer’s gender pay gap information is now live.

As of 6 April 2017, employers with 250 or more employees (calculated as at the 5 April each year) are obliged to report annually on their gender pay gap. The first report is due by 4 April 2018 and must be published on the employer’s own website (and retained for three years). It must also be uploaded onto the Government’s website which can be found here.

Tax Rises for Buy-to-Let Landlords Start to Bite

From April 2017 Landlords will not be able to offset the full costs of their mortgage interest against rent.

Previously, landlords could claim tax relief on any payments they made on their mortgages by off-setting their mortgage payments against the rental income they received on that property.  The result was that they would only pay income tax on the difference between the two.  However, the changes, which were announced in 2015 and will be phased in over four years up to April 2020, provide that Landlords will no longer be able to deduct their mortgage interest costs in full, but will instead only be able to deduct 20% of them.

Fail to control Japanese knotweed at your peril!

Japanese knotweed is an invasive plant that can be found all over the country. It causes havoc because it grows quickly, causes physical damage to buildings and affects not only the value of the property but also its saleability and insurability. Furthermore, the costs of removing Japanese knotweed and treating the area in question are substantial.

RIP Probate Tax?

Many will have breathed a sigh of relief following the announcement on the evening of Thursday 20th April, that the proposed increase in probate fees has been scrapped in the wake of the planned election on 8th June.

Currently the fees are fixed at two costs; £155 and £215 (dependent on whether a solicitor is applying for the Grant of Probate on your behalf). Under the proposed changes, the system would have become a banded structure based on the value of an estate, with up to £20,000 fees to pay out. These changes were due to take effect in May 2017.

Message Received and Understood

In order for a dismissal to take effect it must be communicated and received by an employee. In most circumstances that should never give rise to a problem. However, in the recent case of Newcastle Upon Tyne NHS Foundation Trust v Haywood the delay in an employee finding out about her dismissal proved particularly costly to the employer.

Ms Haywood was an associate director at the Trust from 2008 to 2011. Following a merger of NHS bodies her role was placed at risk of redundancy. At a consultation meeting on 13 April 2011 the Trust informed Ms Haywood they had not yet made their final decision, and that they would confirm their decision by letter. At the meeting Ms Haywood reminded her employer that she had a holiday planned in Egypt from the 19th to 26th April. In fact, she did not return until 27th April as her return flight was delayed. This delay of one day proved to be crucial.

Minimum Energy Efficiency Standards Set to Change

There is less than a year to go before changes are brought in which will affect the ability of landlords to let properties with an energy performance certificate (EPC) rating of F and G. From 1 April 2018, landlords of commercial properties will be unable to grant a new lease of such a property, subject to some exemptions and exclusions. Further changes will be brought in on 1 April 2023 where landlords of commercial properties will have to comply with these regulations for existing leases.

Since they were first introduced in 2008, EPC assessments have become much more accurate and the efficiency requirements of properties have been significantly enhanced. There is therefore a risk that the 47% of properties which are currently rated D and E may drop to F or even G and will be caught by these new regulations.

The new inheritance tax rules: how will they affect you?

The new Residence Nil Rate Band for inheritance tax came into force last week. If people plan in advance and structure their Wills correctly the new rules could potentially save an individual £70,000 in inheritance tax, and married couples could save up to £140,000.

The new rules will not automatically apply to everyone and a lot of people who have made Wills in the past will need to amend them in order to benefit. The Private Client team at Myerson have implemented solutions to the difficulties that arise from the new rules, and we are able to advise you on how to qualify for the Residence Nil Rate Band threshold.

But I intended to enter into that contract!

When entering into a business relationship, it is best practice to ensure that the parties’ obligations and arrangements are clearly defined and set out in writing. Not only does this give clarity to the terms of the agreement but also provides certainty for the parties. That being said, businesses can still form contracts by verbal agreement of the parties, where what the parties have agreed has not been set out in writing, but the following 4 elements have been satisfied:

  1. An Offer;
  2. Acceptance of the offer;
  3. Consideration (usually payment of a price); and
  4. An Intention to create legal relations – a legally binding contract will come into existence.

Leasehold Reform Act 1967

A recent Court of Appeal case has considered the definition of a “house” under Section 2 of the Leasehold Reform Act 1967.

The Act allows a qualifying tenant of a house to buy the freehold or take a new lease for an additional 50 years.

In Grosvenor (Mayfair) Estate v Merix International Ventures Ltd and another, the tenant claimed that it was entitled to buy the freehold of a property from the freeholder under the Act.  Between 1968 and 2000 the property had been used at times partially for office purposes, with residential accommodation on upper floors.  From 2000 onwards it was unoccupied.  The freeholder resisted the claim on the basis that the property was not a house.  The Judge at First Instance had found in favour of the tenant and the freeholder appealed.

Will Planning Fix Our “broken” Housing Market?

If you ask any house builder about its experience with local authorities and the existing planning system, the chances are that you will get a negative response!

In short, the government’s recent long-awaited Housing White Paper sets out the government’s plans to fix England’s “broken” housing market to intensify house-building by shifting away from the longstanding focus on mass home ownership and towards recognising longer term renting as a genuine alternative to buying a house. It is aimed at reforming the current planning system, rather than overturning it, by encouraging house-builders to build and local planning authorities to permit them, or require them in certain circumstances, to build. It has also proposed a number of incentives to release brownfield land for development, increase housing in urban areas and better utilisation of space where house building is undertaken.

Have you donated more than just your money?

Charities heavily fined for misusing donor’s personal data

Last week the Information Commissioner’s Office (ICO) announced that it had fined eleven more charities for breaching the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations.  This is further to the penalties issued to the RSPCA and the British Heart Foundation in December 2016.  It acts as a stark reminder to all businesses that they must understand and comply with data protection legislation otherwise face large fines and serious reputational damage.

The Flood Facilitation Fund

Clients may be interested to read that farmers in the north of England are currently benefitting from the Countryside Stewardship Facilitation Fund Scheme, a programme which enables individuals or organisations from the farming, forestry and other land management sectors to apply for funding to develop and strengthen natural flood defences on their land.

The scheme came into being in the wake of the devastation caused by the winter storms of 2015 / 2016, which left many holdings significantly damaged.

Myerson Office Launch Party

Myerson_Launch_51

Following the redevelopment of its new offices Myerson celebrated in style at its new office launch party on Thursday 28th March. Local MP Graham Brady officially cut the ribbon to open the new offices.

The night had an “around the world” theme to showcase Myerson’s membership of the MSI Global Alliance (one of the words leading associations of independent legal and accountancy firms).

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Myerson is the Manchester and Cheshire law firm member for MSI Global Alliance, a top 20 ranked, international association of professional firms.

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