The dangers of DIY leases

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.

 

 

Obtaining Information from a Judgment Debtor under CPR 71

It is often the case where someone is owed money, be that under a judgment debt or not, and the debtor quickly becomes elusive and non-responsive. This makes the enforcement process substantially more difficult as the relevant information needed to pursue the debtor is unavailable or the debtor simply will not provide it. When it comes to enforcing a debt, knowledge is most definitely power, knowledge regarding what assets or finances are available to the debtor or their employment status and this information will prove invaluable in recovering the debt.

Part 71 of the Civil Procedure Rules provides an answer to all of the above problems. This rule allows a creditor to apply to the Court for an Order that a debtor attends at Court to give evidence, under Oath, about his/hers or their assets, their value and their whereabouts as well as any other necessary information for enforcing the Judgment Debt. It is particularly useful prior to the issuance of an application for a Third Party Debt Order (see previously published blog on this topic), where the bank accounts of an individual may not be known.

When the Court makes an Order, it will fix a date and time for the information hearing and will specify that the debtor must bring documents within his control to the hearing and that they will have to answer questions under oath. Therefore, this subjects the answers given to the rules regarding perjury. The questioning is often conducted by a Court officer, but occasionally by a Judge. The Creditor (or their legal representative) can attend and ask questions.

Many people would at this point consider the possibility of the debtor simply not turning up for questioning. If this is the case, the end sanction could be committal to prison for being in contempt of Court. Applications for sanctions of this sort should be conducted pursuant to Part 81 of the Civil Procedure Rules and are outside of the scope of this article. However, Part 81 aside, there are sanctions contained within Part 71 also for non-attendance or refusal to answer questions which in itself contains provisions relating to committal. It should be noted that this course of action will not be taken unless the Creditor has complied with their obligations under 71.4 and 71.5 (to pay travel expenses and file a Judgment Creditors affidavit).

Alternative directions could be made, such as a suspended committal order (which is almost always the case, directing that the Committal Order will not take place if the debtor attends for questioning at a future date and complies). The Judge could also opt for a penal notice to be attached to an Order directing attendance and simply adjourn the first hearing.

In summary, there are a number of procedural elements which need to be closely complied with if such an application is to be successful and it is important that experienced professionals are instructed to deal with the application. Our team is readily available to assist and/or advise on any of the elements to ensure compliance and also to help with the enforcement process generally. If you would like to speak to a member of our litigation department, please contact mbh@wigansolicitors.com or call us on 01942 206 060 to discuss further.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your debt recovery / litigation disputes in confidence at:

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

Twitter: @MBHSolicitors

Third Party Debt Orders (TPDO) Under CPR 72: Enforcement of a Judgment Debt

Where a judgment debtor continues to refuse to pay, there is still a card left to play which should be within the repertoire of any specialist litigation solicitor, that of the Third-Party Debt Order (previously known as Garnishee Orders) provided by Part 72 of the Civil Procedure Rules. In short, a TPDO allows you to enforce the debt against monies owed to, or more importantly held for, the debtor. Thus it enables you to seize the monies from the bank accounts of the person who owes it to you (as long as they have enough money in the account). It is done by way of a two-part process:-

  1. Obtaining an Interim TPDO (made without notice to the debtor); and then
  2. Obtaining a Final TPDO (made with notice to the debtor).

The Interim Order will fix a date for the hearing of the final Order and will direct that the third party (i.e. a bank or building society) must not make any payment from the debtor’s accounts which will reduce the funds therein to less than the amount owed. Basically, it operates so as to freeze the bank accounts (without the need for a Freezing Order or other injunctive relief) insofar as to ensure the account maintains a funding level sufficient to discharge the debt if the Court makes a Final Order. However, a debtor in extreme financial hardship can ask the Court to authorise the release of small amounts of money to help them though this must be done by way of an application.

The Third Party will also have to undertake a search of the accounts held by the Judgment Debtor and confirm the same to the Court within 7 days of being served with the Interim Order. Details of the accounts, whether they are in credit and if so, whether there are sufficient funds to discharge the debt. This allows you, as the creditor, to ascertain whether or not other types of enforcement action are necessary.

If the debtor or the third party wish to dispute the debt in its entirety or to allege someone else has a claim to the monies, they must serve written evidence on all parties as soon as possible, not less than 3 days before the final hearing. If the creditor disputed the debtors case, they too must serve counter evidence in writing.

At the hearing for the final Order, the Judge can either award a final TPDO, dismiss the application or rule on any issues in dispute/direct a trial to take place to determine those issues. If the final Order is granted, it is immediately enforceable and the third party must pay the monies due to the creditor. At that point, the third party is discharged from their debt to the creditor.

TPDO’s rank in accordance with priority, i.e. when they were secured. This is of importance if you suspect that a number of people may apply, so it is essential that action is taken quickly. Other points to note include the fact that they cannot be made against insolvent debtors or against monies held by the Court.

If you are owed money by someone, or have a judgment debt, our specialist litigation department is on hand to assist quickly. We have considerable experience in securing this type of Order and can advise you on all aspects of the procedure, as well as the other types of enforcement that may be available to you. If you are in need of assistance, or would like to better understand your options for pursuing a debt, do not hesitate to contact us at mbh@wigansolicitors.com or by phone on 01942 206 060.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your debt recovery / litigation disputes in confidence at:

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

Twitter: @MBHSolicitors

How to Repossess a Tenanted Property under Civil Procedure Rule (CPR) 55

In short, there are two main ways by which a residential landlord can take back possession of property let on an assured shorthold tenancy (AST):-

  1. Section 8 Procedure (s8 Housing Act 1988);
  2. Section 21 Procedure (s21 Housing Act 1988).

The initial starting point in determining which procedure to follow will largely depend on whether or not the fixed term of the AST has expired. If not, section 8 procedure will generally be followed and on or after the expiry of the fixed term, section 21 can be followed.

Section 8 Procedure

The Landlord will first need to serve a section 8 notice on the Tenant, requiring possession of the property, which must specify one or more of the ‘grounds’ for possession as per schedule 2 of the Housing Act 1988.  If the Tenant does not vacate then the landlord can issue ‘standard procedure’ Court proceedings under CPR 55 or (dependant on circumstance) use the ‘Possession Claims Online’ service, though the latter is largely reserved for cases concerning only the non-payment of rent.

This is done by filing a Claim Form along with the Particulars of Claim with the local County Court (the High Court can be used but that is outside of the scope of this blog), who then ‘issue’ the claim.

The hearing is usually listed between four and eight weeks after the Claim Form has been issued with the Tenant needing to be served with the Claim Form and Particulars no less than 21 days before the listed hearing date. The Defendant Tenant is not required to serve a defence but also does not need to serve any form of response.

Assuming all procedural aspects of the claim are satisfied, a Possession Order is usually given, with the tenant having a set number of days in which to vacate the property.

Section 21 Procedure

Where the original fixed term under the AST has expired, the Landlord can serve a section 21 ‘notice to quit’ on the Tenant. Unlike section 8 notices, no grounds whatsoever are required, the landlord must simply prove the Tenant let the property under an AST (simply annexing the document to the Claim Form will prove this). If the Tenant does not vacate, the landlord can issue using either the ‘standard s21’ or ‘accelerated s21’ procedure seeking a Possession Order from the Court which will usually give the Tenant 14 days to vacate.

The decision over which type of s21 procedure to follow is simple, the standard procedure allows for claims by the Landlord where the Landlord seeks to recover more than just possession of the property, such as actions over rent arrears whereas the accelerated procedure is solely for the Landlord to recover possession of the property.

S21 Standard:-

If following the standard procedure, the Landlord must file a Claim Form and Particulars (as with s8 proceedings). Once issued, the hearing will usually be listed for four to eight weeks later and will again require the Tenant to be served with the documents no less than 21 days before the hearing.

 

S21 Accelerated:-

The accelerated procedure differs from those outlines above and is often the most sought after procedure by residential Landlords as it often does not require a hearing so keeps wasted time and costs to an absolute minimum.

The criteria for using this process is strict, and the Landlord must provide a copy of the AST and a s21 notice must have been served. It should be noted that it cannot be used where a landlord has failed to protect a deposit or provide the tenant with the prescribed information.

The Landlord must file a Claim Form, but no particulars are required, as the Claim Form asks all of the necessary questions. If the Tenant wishes to dispute/defend the claim, they must file their Defence within 14 days of service of the Claim Form.

The Judge will then consider the Claim Form and any Defence received and, provided no hearing is required, will make a Possession Order.

 

As you will note from the above, there are a number of options available to a Landlord who wishes to repossess the Tenants property and it is imperative that the correct procedure is followed. There are a variety of rules and restrictions which govern whether or not a Landlord can follow any given procedure and if your case is in any way complicated, it is recommended that you seek professional advice from someone with experience in the field. Such complications may include where you wish to take possession but have not protected the deposit or provided prescribed information.

Our experienced litigation team have a proven track record in dealing with this type of issue and are readily available to assist when any part of the process. If you do require assistance, please feel free to contact us on 01942 206 060 or by email at mbh@wigansolicitors.com.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your debt recovery / litigation disputes in confidence at:

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

Twitter: @MBHSolicitors

 

 

 

Implications of the Pre-action Protocol Changes relating to Debt Claims

Currently, there is no specific Pre-action Protocol that needs to be followed in respect of debt claims, claimants must simply follow the general Practice Directions on Pre-Action Protocol under the Civil Procedure Rules. From 1st October 2017, claimants and their advisors will need to comply with the latest protocol which will now specifically apply to debt claims, where a business is claiming recovery of a debt from an individual. It will not apply to business-to-business debts, unless the business is a sole trader.

It is geared at increasing pre-action communication and negotiations between the parties, and will involve a two-step pre-action process which negates the unnecessary disclosure of further information to a debtor, often when the debtor is non-responsive to the creditor.

Letter of Claim

The first step is in issuing a letter of claim, which must contain:-

  1. Information regarding the debt and any interest accruing thereon;
  2. Details of the agreement under which it arises;
  3. Details of any assignment of the debt;
  4. Details of any instalments being offered/paid and why they are not acceptable;
  5. Details of how the debt is to be paid or how to discuss payment options;
  6. Address for return of the response form.

The letter must now also be accompanied by an information sheet, response form and financial statement form (all of which are contained in standard form in the annexes to the Protocol). Strict provisions on service apply. The debtor then has a period of 30 days in which to respond before proceedings are issued.

Response

During the 30 day period, the Creditor and Debtor are expected to liaise over the content of the response form and to discuss any documents required to understand the position of the other party. The creditor would then have 30 day period to provide any information requested or to explain why the information cannot be provided.

Alternative Dispute Resolution (ADR)

The parties are then expected to consider ADR to reach a settlement, and if agreement is reached, the creditor should not issue proceedings whilst the debtor complies with the agreement. If no such compliance takes place, a further letter of claim needs to be send before commencing proceedings, though disclosure need not be re-sent.

Taking Stock

The Protocol contains a ‘taking stock’ provision, requiring the parties to re-assess their positions following compliance with the Protocol’s. If agreement still cannot be reached, the creditor must give the debtor a 14 day warning that they are going to issue.

This new Protocol has clearly been developed following LJ Jackson’s 2010 report on Civil Litigation Costs and on the amount of Court time/costs that business debt actions take up. The Protocol seeks to serve the overriding objective and help facilitate an out-of-court resolution to debt issues. The procedure as whole appears to greatly benefit the debtor, and the main aim of the process is to enlighten the debtor by ensuring they have requisite information to understand their position and seek advice on their position.

If you are a business contemplating debt recovery action against an individual (including a sole trader) once this Protocol comes into place, then it is advisable that you seek professional advice to ensure compliance with the Protocol and therefore with the CPR. The Courts can be quick to penalise a claimant for non-compliance, and this can have a substantive impact on the prospects of success and on claims for costs.

The Litigation department at McCarthy Bennett Holland Solicitors has a wealth of experience in pre-action conduct and is readily available to advise on compliance with the CPR ahead of issuance of proceedings. If you do require assistance with this, or with the commencement of proceedings generally, please do not hesitate to contact us directly on 01942 206 060.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your debt recovery / litigation disputes in confidence at:

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

Twitter: @MBHSolicitors

A New Direction for Legal Privilege and its scope under the Data Protection Act 1998?

The recent case of Dawson-Damer and Others v Taylor Wessing [2017] has shone a light on the extent to which solicitors can rely on the protection of legal professional privilege where an individual wishes to retrieve/see information held about them by others, regardless of their reasons for requesting it.

In short, making a request under the Data Protection Act 1998 is a relatively straight forward process, with a cost of £10, for an individual to submit a request for access to personal data held by someone else. When such a request (a ‘SAR’) is made, the entity holding the information (‘the data controller’) must make that information available to them within 40 days. However, a longstanding reason for not providing that information is because it is subject to legal professional privilege.

In this case, the action concerned the beneficiaries of a trust, who were concerned about the deterioration of the trusts value and served a SAR on the London law firm who were acting on behalf of the Trustees. In recent times, the case of Durant v Financial Services Authority has acted as a precedent, in which the Court of Appeal refused to order the data controller to disclose the information where the person requesting it was wanting it for the purposes of litigation. However, in the Dawson-Damer case, the Court of Appeal have ruled that the reason for the request is immaterial, i.e. it does not matter whether or not the information is going to be used for litigation. A firm cannot refuse to disclose the information and claim that all documents may be privileged, and any issues arising surrounding privilege should be decided by reference to English Law.

This helps demonstrate that Legal Professional Privilege does not extend to documents which are not strictly privileged themselves, but restricted for some other reason and so if the laws surrounding a trust limit the beneficiaries right to information, provided that information is not strictly privileged, they could apply to see it under the DPA 1998. It is important to note that solicitors and law firms are not ‘exempt’ from the provisions of the 1998 Act and must carefully review papers to establish what is and what is not subject to privilege.

It is important to ensure that you always instruct a firm of solicitors who are aware of their duties to you as a client and how to protect your information properly. Privilege covers correspondence seeking or offering legal advice, and so if a solicitor has a meeting with a third party and sends notes of the meeting to their client, without adding legal advice, that information can be disclosed. Whilst it is not entirely unusual for information to be disclosed during litigation between a trustee and a beneficiary, it is worth noting that in much the same way, the information can be disclosed where a beneficiary simply provides a SAR.

In any event, it is an interesting case that has set precedent for many beneficiaries to follow. If you are considering issuing proceedings for breach of trust or another problem with a trustee, please do not hesitate to contact our specialist Private Client team who have extensive experience in the administration of trusts and are aware of the disputes that can arise from them.

Contact Paul Aynsley, solicitor or James Ford, trainee solicitor at MBH Solicitors, to discuss your wills, probate & estate management requirements in confidence at:

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

Twitter: @MBHSolicitors

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

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