Consumer Advice

The dangers of DIY leases

Posted on by mbhwigan

Gemma. March blog photo

The dangers of DIY leases

It may be tempting for both landlords and tenants of commercial properties to try and save money on legal costs by dealing with the matter between themselves. There are a number of downfalls that a landlord / tenant may fall foul of. Commercial property Solicitor, Gemma Eastham, looks at the pitfalls.

SDLT liability – tenants

Whether SDLT will be payable will generally by determined by whether a premium is being paid for the grant or assignment of the lease, the value of the annual rent per annum and the length of the lease.

Where no SDLT is payable, a tenant may still be required to notify HMRC (submit a return to HMRC).

Failure to submit a return and pay the duty (if any) within 14 days of the effective date of the transaction will lead to a fixed penalty of £100 and interest being charged on any SDLT and if the date of submission is more than 3 months after the filing date, the fixed penalty will increase to £200.

When do you need to register a lease at H.M Land Registry?

Leases granted for a period of more than seven years and certain other types of leases need to be registered at HM Land Registry.

It is worth pointing out that any easements contained in a lease, such as rights to access the demised premises through common areas or the use shared facilities, i.e car parks, will not take effect at law unless they are registered, even where the lease itself does not require registration.  For a tenant, it is therefore important to ensure that any registration requirements are adhered to.

Unwritten tenancies

Unwritten tenancies are dangerous for both parties to a commercial tenancy because there is no clear record of the terms that have been agreed.

A landlord, for example, will have no right to forfeit the tenancy in the event of a breach of the terms of the agreement because an express forfeiture clause is required for this.

With a business tenancy it is important to ascertain whether the agreement is within the security of tenure provisions contained in the Landlord and Tenant Act 1954 (the right for the tenant to renew the tenancy at the end of the term).  If there is no express clause excluding these provisions in the agreement and the Landlord and Tenant Act 1954 has not been ‘contracted out’, the tenancy will be deemed to be within the Act.

This means that the tenant will generally be entitled to request a new lease from the landlord at the end of the contractual term of the existing lease. The landlord would only be able to bring the tenancy to an end by serving notice on the tenant in the prescribed form, which requires the landlord to give the tenant not less than 6 months’ notice.

This may affect any provisions which have been agreed between the landlord and tenant.

For example, a landlord and tenant may have verbally agreed that either party can bring a lease to an end by giving one month’s notice to the other party. Legally, the landlord would not be able to rely on this provision and would need to follow the above statutory procedure (6 months’ notice).

The full extent of this topic could be covered in something far longer than a blog, but these are some key areas that both landlords and tenants should consider before proceeding. Seeking appropriate legal advice at the outset could potentially save a landlord and/or tenant money in the long run. Legal advice is always recommended.

For further information, please contact our Commercial team at MBH Solicitors:

http://www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD.

 

 

Unmarried Couples & the Common Law Myth

Posted on by mbhwigan

Many couples who are unmarried (or have not entered into a civil partnership) whether heterosexual or homosexual believe that once they have been in a relationship with their partner a specific length of time or have children together they establish legal rights. Many people even state that they are a ‘Common Law Wife or Husband’.  Unfortunately, this is not the case which many people later find out if their relationship breaks down.

To be clear common law wives/husbands do not exist.

Couples who are not married do not have the same rights as married couples or those who have entered a civil partnership. The Court do not take into account how long couples have lived together or whether the parties involved believed that they had rights.

Where property / assets are jointly owned and legally registered this way, it is simple to show that you are entitled to an interest. However, where the former family home is registered in one person’s sole name, the law is particularly complex and certain requirements must be met before you can bring a claim that you are entitled to an interest in the same.  In most cases financial contribution to the property must be shown, i.e. by payment of the deposit of the property, mortgage, utility bills, home improvements etc.

Separating couples should also be aware of implications of their partner bringing a claim against them even if the property is held in their sole name. Cohabitation agreements can be drafted to ensure that their property and assets are protected against financial claims on separation or alternatively can be drafted to regulate what would happen on separation in respect of property, assets, cars and even where the children should live and how often they spend time with the other parent.  These agreements can be prepared for a fixed fee and can assist in avoiding lengthy and expensive Court disputes following separation.

Unmarried couples who are considering cohabiting with their partner should also consider seeking legal advice to determine how they are best protecting their assets.

If you are separating it is worthwhile meeting with a solicitor to obtain advice as to whether you are entitled to an interest in property or assets.

Gillian Lavelle offers 30 minute free initial advice appointments. Gillian is a specialist in this area and has been assisting unmarried couples for a number of years.

Contact Gillian Lavelle, solicitor at MBH Solicitors, to discuss your family & matrimonial requirements in confidence at:

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors Find Gillian on Facebook: “McCarthy Bennett Holland – family solicitor”

Neighbour Disputes: Getting to the ‘root’ of the problem

Posted on by mbhwigan

Many people overlook the costly potential damage which can be caused, sometimes completely unknowingly, by a tree root. It can create major issues for you and your neighbours and cause significant damage to property in the process. The ‘owner’ of the tree can be responsible for any damage caused by the roots, provided the tree root has materially contributed to the damage.

Should I have seen this coming?

There is no hard and fast rule here, it is important to ascertain the degree of risk. To succeed in a claim, it must be proven that the risk was reasonably foreseeable and not just a vague possibility. There are ways in which an owner can assess the degree of risk. They should have regard to the age of the property (naturally, newer buildings are more likely to have taken things like trees into account at any early stage), any known conditions which affect the land and whether or not there has been any damage caused in the area as a result of tree roots. The Courts have stated that the reasonable actions of the tree owner are linked to the foreseeability of the risk of the damage.

How proactive should I be?

The practicality of avoiding or reducing the risk is an obvious cause for concern for any affected land owner. The costs of preventative actions can be timely and financially inappropriate and often you may not have the time to do anything about it, if the problem is noticed at too late a stage. Under these circumstances, where there is not enough time, or nothing practical that can be done, it can be acceptable conduct for the tree owner to do absolutely nothing. 

Tree owners are not expected to take extreme measures where the risk is minimal, although it has been proven that regular pruning of the tress can be helpful in avoiding problems in the future (if done frequently). It is therefore a difficult thing to measure for the ordinary homeowner and emphasis is placed mainly on what is reasonable in any given situation. In the first instance, a reasonable person whose land is being damaged or is at risk of being damaged from the tree of a neighbouring property, should advise the owner of the potential risk. This will allow them to then assess the situation and take proportionate action to that risk. The legal consequences of this are obviously a little more complex than this and it is always a better option to seek impartial advice to avoid unnecessary spending at a later point.

What level of protection or repair can I expect from the law?

Naturally, those who are suffering from the nuisance are entitled to having the nuisance stopped, but there can also be additional claims for damages and injunctions which could be made to force the owner to prune or cut down the tree. These can be extremely effective in resolving the situation as amicably as possible. For a full overview of the different options and remedies available to you, do not hesitate to contact me on 01942 206060.

If you find yourself on the receiving end of a tree root, or even if it is your tree root which may have caused such damage, it is important that you have quality legal representation to help you resolve the issues at hand. The litigation department at MBH is headed up by an experienced partner with extensive experience in resolving all kinds of neighbour disputes and is readily available to give you your piece of mind.

Mark Boon, partner at MBH & trainee solicitor, Warren Richards, deals with company commercial matters and will be happy to discuss any issues affecting your business, partnership or limited company. Contact Mark to make an appointment on 01942 206060.

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors

 

Summer Budget 2015 round-up

Posted on by mbhwigan

The Chancellor recently presented the new government’s first Budget to Parliament. The first Conservative budget in 19 years, the emphasis was very much on deficit reduction and streamlining of the welfare system. Here, we look at some of the main points raised and how these may affect you and your business:

  • Employment

Importantly for many low-paid workers, the Chancellor has made the ‘living’ wage compulsory from April 2016, starting at £7.20 per hour for over 25s and rising to over £9 per hour by 2020.

3 million new apprenticeships are to be created by 2020 and firms who commit to the training of apprentices will be incentivised through the tax system.

Public sector pay is to increase by 1% per year for four years from 2016-17.

  • Personal & Business Taxation

Currently at £10,600, the Personal Allowance (the amount it is possible to earn before a person starts to pay Income Tax) will rise to £11,000 in 2016-17. The government’s intention is to increase the Personal Allowance to £12,500 by 2020, at which point legislation will be introduced to the effect that no Income Tax will be payable at all by anyone working 30 hours per week on the National Minimum Wage.

The 40% Income Tax band threshold is to increase from £42,385 to £43,000 in 2016.

Dividend Tax Credit, reducing the amount of tax paid on income from shares, is to be replaced by a £5,000 tax-free dividend allowance from April 2016. Tax rates on dividend income will then be increased, meaning that only those with significant dividend income should face a higher tax bill.

The main rate of Corporation Tax is to fall from 20% to 19% in 2017 and further to 18% in 2020. The Treasury estimates that over a million businesses should benefit from the reduction. In addition, the annual investment allowance, currently set temporarily at £200,000, will be made permanent at this level from January 2016. The annual investment allowance allows businesses to plan cash flow and spending on long-term investments, giving full tax relief in the year items are purchased.

The Employment Allowance will rise to £3,000 from April 2016, reducing employer National Insurance payments by £1,000. The Chancellor commented that this should allow businesses from next year to employ four people full-time on the National Living Wage and pay no National Insurance at all.

  • Inheritance Tax

From April 2017, individuals will be able to pass their home onto their children or grandchildren on death free of tax under a new ‘family home allowance’. Under the existing system, Inheritance Tax is charged at 40% on estates over the tax-free allowance of £325,000 per person. Unused allowances can be passed between spouses and civil partners; the family home allowance is to be added to this £325,000 threshold, resulting in a total tax-free allowance of up to £1million for surviving partners in 2020-21.

Large estates worth more than £2million will see the allowance gradually withdrawn.

  • Education

Free childcare provision is to increase from September 2017; currently, working families with 3 and 4 year olds receive 15 hours’ care each week but this will rise to 30 hours.

The 2016-17 academic year will see the introduction of ‘maintenance loan support’, replacing student grants. The amount available will increase to £8,200 and loans are to be repaid once the graduate earns more than £21,000 per annum.

  • Welfare reform

The Chancellor introduced a package of measures intended to make significant reductions to the country’s welfare bill. Amongst the steps announced included:

  • Tax credits, Local Housing Allowance and other ‘working-age’ benefits are to be frozen for four years from 2016-17, although this will not include statutory Maternity Allowance, maternity and paternity pay and sick pay;
  • The total amount a household can receive in benefits is to be capped at £20,000, and £23,000 in London;
  • Child Tax Credit will be capped at two children from April 2017. Therefore families with three or more children born after April 2017 will only receive credits for the first two children;
  • Universal Credit recipients aged 18-21 must apply for an apprenticeship, gain vocational on-the-job skills or go on a work placement six months after the start of their claim to continue to receive it;
  • Social housing rents are to be reduced by 1% per year for four years. Tenants on higher incomes will be required to pay rents which reflect open market values.
  • Other measures

Defence spending is to increase, with the Ministry of Defence budget rising by 0.5% above inflation each year to 2020-21. An additional £1.5bn per year should be available by 2020-21, allowing increased spending on military and intelligence.

The standard rate of Insurance Premium Tax is to increase to 9.5%; consumers may notice that the cost of household insurances such as home, contents and car increase accordingly.

Road tax will be reformed, introducing a flat rate of £140 for most new cars from 2017, save in their first year when tax remains linked to CO2 emissions. Electric cars pay no tax and more will be payable for more expensive vehicles. New cars and motorcycles will face their first MOT after four years rather than three.

More powers are to be devolved to Greater Manchester, including responsibility for fire services, land commission and collaboration on children’s services. Transport for the North is to be supported by £30m over three years and will receive more responsibility for policy.

How will you be affected by the Budget? We are interested to hear your views; connect with us on Twitter (@MBHSolicitors), Facebook or LinkedIn.

 

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact MBH Solicitors to discuss your legal requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors

Returning tenancy deposits – how to lodge a claim if your landlord won’t repay

Posted on by mbhwigan

Q: I have come to the end of my tenancy of my property but the landlord now refuses to return my deposit. What can I do?

Most, if not all, landlords will require you to pay a deposit when you sign up to a lease of a property, whether the property is residential or commercial. This provides security for the landlord in the event that you fail to make a rental payment or if the property is damaged at the end of the lease.

If the property is residential and you sign what is known as an ‘Assured Shorthold Tenancy’, the landlord by law must pay the deposit into a government-backed tenancy deposit protection scheme (the “TDP”) within 30 days of receiving it from you. The scheme is designed to ensure that your money is protected and that you will get your deposit back if you comply with the terms of your tenancy, pay your rent and other bills and don’t damage the property.

When your tenancy ends, you and your landlord must agree how much of the deposit should be returned to you; once the sum is agreed, the money must be paid back within 10 days.

However, there is occasionally a dispute between landlord and tenant over the sum to be returned. You may disagree about the condition of the property or your landlord may claim that you have breached a term of the tenancy. In this situation, deposits remain protected under the TDP until the dispute is settled.

The TDP scheme offers a free dispute resolution service for landlords and tenants; whilst you don’t have to use the service, it can help to resolve a dispute efficiently. The dispute will be resolved by an independent, professional adjudicator and you will be required to submit evidence to them to support your argument. Any decisions made about your deposit will be final and cannot be appealed by either party so you can have some certainty that the matter will be closed.

Many properties are managed separately by agents so you may never have contact with your landlord. If you are unable to contact your landlord, you should raise a dispute with your TDP scheme. If you have not received a response within 10 days, the case will be referred to the dispute resolution service and the TDP will return the deposit if agreed by the adjudicator.

You can expect your case to be dealt with promptly; once an application for a dispute has been submitted to your TDP scheme, they will refer to your landlord for a response. The case will then be reviewed and referred to the adjudicator who will prepare a report, usually within 28 days, giving their decision and their reasons for it. The TDP will then pay the money according to the adjudicator’s decision.

What information should I provide?

 Presenting a thorough case is important to give you the best chance of success. Some points to consider may be:

  • What the dispute relates to and how much money is claimed (you should at least try to agree what sum is disputed with your landlord);
  • Why you believe you are entitled to the sum claimed;
  • Whether you and the landlord have complied with the terms of the tenancy;
  • Provide all relevant documentary evidence; this should include a copy of the tenancy agreement, the inventory, check-in and check-out reports, rent and bank statements, good-quality photographs with date and time noted, plus any invoices or quotes for work carried out;
  • Only send relevant correspondence; an adjudicator is unlikely to need much of the correspondence you have exchanged and will focus only on the other evidence supplied.

If you have come to the end of your tenancy and you are in dispute with your landlord over the deposit, your first step will be to contact your TDP scheme. MBH will be happy to review your documents and assist in putting together your claim, ensuring that it is presented with all necessary information and supporting you through the process.

Paul Aynsley, partner at MBH, deals with Landlord & Tenant matters and will be happy to discuss any issues affecting your tenancy. Contact Paul to make an appointment on 01942 206060.

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Paul Aynsley to discuss your litigation or other legal requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors

Buying on the doorstep – what are my rights?

Posted on by mbhwigan

When a well-rehearsed and chatty sales representative arrives on your doorstep, it can be very easy to be drawn into their message. Many people find themselves signing up for products or services they neither wanted nor needed in the heat of the moment and later come to regret their decision. So what rights do you have and how easily are you able to withdraw from a transaction such as this?

The Law

It is a legal requirement under the Sale of Goods Act that, where products or services over the value of £42 are sold to a customer off trading premises, such as at the customer’s home or an office, or even by telephone, information as to how to cancel must be provided at the same time. If a seller does not inform a customer of their rights to cancel, they may be fined up to £5,000.

Before any orders can be placed, a seller must provide information such as:

  • a business name and contact information;
  • full descriptions of goods or services;
  • all applicable pricing information;
  • payment and delivery terms;
  • how the customer can cancel.

Once an order has been placed, the seller is still under an obligation to supply further information to you, including:

  • information as to the product purchased, its cost and when it will be delivered or supplied;
  • terms of the contract and how it can be terminated;
  • contact details for any complaints that the customer wishes to make;
  • telephone helpline charges which are more than a standard call to an 01, 02 or 03 number.

These legal obligations apply to a broad range of doorstep sellers, including those offering home and garden improvement services, household items, nutrition and health products, gas and electricity supplies and disability aids.

Cancelling the contract

If you decide you do not want goods after they have been delivered, by law you have a period of 14 days from the date of delivery within which to send them back. This is known as the ‘cooling-off period’.

If you have entered into a contract for the supply of services, such as works to your property, you have 14 days from the date of the contract within which you can cancel. Where services were to start immediately, you are still entitled to cancel within 14 days but be aware that you may not receive a full refund as the seller is entitled to retain money for the services already provided to that point.

The seller should supply you at the point of the sale with details of how to cancel, including copies of any forms required if necessary. It is a criminal offence for this information not to be provided.

Unfair practices

You may feel that you have been misled in some way, or that you were put under too much pressure by the seller to sign up to a product or service. For example, you may feel that the seller was too aggressive, that they misled you by failing to tell you important information or that they gave you false information about their company’s credentials. If this is the case, you should firstly report the trader to Trading Standards. You may also be able to ‘unwind’ (or undo) the contract, obtain a refund and make a claim for compensation where you have lost money.

How can I stop cold-calling?

You can prevent unwanted sales telephone calls by registering with the Telephone Preference Service; to register, call 0845 070 0707 or visit www.mpsonline.org.uk.

Local communities can also make an area a ‘No Cold Calling Zone’, a scheme established by Trading Standards and the police. You may need to pay a small sum for street signs and door stickers.

McCarthy Bennett Holland is able to advise on the terms of your contract and can assist in making a claim for compensation where you have suffered financial loss. For more information and to make an appointment, call Paul Aynsley on 01942 206060.

About MBH

McCarthy Bennett Holland, established in Wigan since 1971, offers a personal service across a wide range of legal practice areas, including residential and commercial property, family and matrimonial, wills and probate, employment, personal injury and company commercial.

Contact Paul Aynsley, partner at MBH Solicitors, to discuss your commercial litigation or other legal requirements in confidence at:

www.wigansolicitors.com
Tel: 01942 206060
Address: 26 Bridgeman Terrace, Wigan WN1 1TD
Twitter: @MBHSolicitors