Generally, landowners think that telecommunication equipment is “a nice little earner”. The Operator takes a small area of land, pays over an annual rent – which is periodically reviewed upwards – and all that with little, or no, inconvenience. Whilst that is right, there have always been traps for the unwary. The increase in telecommunications is considered to be beneficial to the economy and therefore the legislation and code are beneficial to the Operator.

The new Electronic Communication Code brought into effect under the Digital Economy Act 2017 has made the position of the Operator stronger and financially more advantageous.

The principal changes are that:

  1. The Operator will now be able to assign its interest in the equipment without restriction albeit subject to giving a guarantee similar to an AGA.
  2. The right to share equipment without paying an increase in the rent.
  3. The right to upgrade the equipment without paying an increase in the rent.
  4. The method of calculating the rent has been altered in a way which should lead to lower rents.

The new Code only affects new arrangements so those who already have arrangements, tenancies or licences may well try to keep those going for as long as possible. The Legislators have thought of that and have incorporated transitional provisions to make the new Code applicable to old tenancies or licences albeit with certain modifications.

Given the advantages to the Code Operator under the new Code, can a landowner just refuse to allow new telecommunications equipment to be placed on his land? Regretfully, if the Operator wants to place telecommunications equipment on land, and if there is no agreement, it can make an application to the Court who will, in certain specific circumstance, approve the necessary Order permitting the equipment to be installed on terms it decides.

Because of the newness of the provisions there is no guidance as to how the Courts will react but generally a negotiated settlement is preferable.

The blog does not deal with the details of the new Code. Because of the intricacies of the new Code, any landowner should seek advice before entering into an arrangement with a telecommunications operator.

If you require any further information please contact me on:

Telephone:          01793 848900


The Right to Extend the Lease of your Flat

This week I was chatting with my colleague, Zoe Tibbles, who has a specialisation in the extension of residential leases. We were discussing the timing of the lessee’s request for an extension of its lease as this can substantially affect the premium payable.

Although a long residential lease decreases in value year by year, it does not normally worry the leaseholder. What is the difference in a lease which, say, has 199 years left to run and one with 198 years? Very little. However, if a lease gets to a point where there is, say, only 95 years left to run then its value can be substantially reduced. That is because many potential purchasers view askance a term that may run out in their lifetimes. Added to that is the reluctance of many mortgage providers to lend where the lease has 80 years or fewer left to run. To cover this problem there is legislation (The Leasehold Reform Housing and Urban Development Act 1993) which provides that most lessees of flats let on a long lease at a low rent can apply to extend their leases.

There is, of course, a cost for this which has to be paid to the freeholder. What the freeholder is entitled to receive is the loss of value of its interest in the property. Not surprisingly, the closer to the expiry of the original term the request is made the more that has to be paid to the freeholder. Some examples are set out below.

Assume a lease with a value of £200,000 and a ground rent of £150.

With 199 years left to run, the freeholder is likely to receive £3,000.

With 80 years left to run, the freeholder is likely to receive £7,000 to £8,000.

With 70 years left to run, the freeholder is likely to receive £13,000.

With 51 years left to run, the freeholder is likely to receive £33,000.

The examples are not exact because the actual figure will be influenced by location and whether the ground rent payable increases.

The break point where the amount payable begins substantially to increase exponentially is where there is only 80 years left to run. That is because the freeholder is then entitled to add to the amount payable ‘marriage value’. The amount actually payable is usually agreed by the parties relying on the formula provided by the legislation. If the negotiated route does not work the Leasehold Reform Housing and Urban Development Act 1993 provides a framework as to how the figure is decided. Ultimately, if the parties cannot agree the figure is as decided by the First Tier Property Tribunal.

A note of caution is that the right to extend the lease does not apply to all residential property and there are various technical steps that need to be followed. You do need the advice of qualified professionals – being valuers and solicitors such as Zoe.

If you want more information then please contact Zoe either on the telephone on 01793 848900 or by email:

Parental alienation: CAFCASS crackdown

Parental alienation:

This is an interesting issue relating to the impact of one parent alienating their children against the other parent. This has caused quite a media storm and rightly so in my opinion as the ground-breaking response by CAFCASS may seem severe to one side of this debate; but heaven sent to those parents who have “lost” their children due to their ex partners or spouses successfully alienating them.

The court has always had the power under the Children Act 1989 to vary the place of residence for a child if it felt that one parent was more capable of promoting contact with the other but this is the first time CAFCASS have committed to positively promoting such outcome to the court in the event that it makes findings of parental alienation. And it goes one step further by suggesting that not only should there be a change of residence but that the “offending” parent may face the consequence of limited contact or no contact with their child if they fail to address their behaviour.

I have seen too many cases of parental alienation during my legal career and this is the most positive step I have seen to address this issue which can often involve only subtle manipulation of a child but can have such a devastating impact upon family life for both the child and the parent who has been alienated.

It is important to note that recommendations made by CAFCASS to the court within Children Act proceedings are not binding but they are very much persuasive as their report is often the only impartial evidence viewed by the Judge. Therefore, this new approach being trialled by CAFCASS should impact upon the decisions we see in the family court.

If you require advice relating to Children Act proceedings or any other family related matter…etc

If you require advice relating to Children Act proceedings or any other family related matter please contact us on 01793 532363.

Unsent text accepted as dead man’s will

A court in Australia rules a draft text message can be accepted as an official will.

This is a topical issue in England and Wales. The Law Commission is currently considering whether the law relating to Wills should be updated, particularly as regards the capacity to make a Will; and the formalities of doing so.

Much of the present law is based on the Wills Act 1837. This sets out details of how a Will should be signed and witnessed.

Once a judge has decided that a Will is valid, he or she may already take account of other evidence to help interpret what the Will was intended to mean. However, one question being considered is whether more use could be made of digital technology in the creation of the Will.

A more flexible approach to the creation of Wills is possible but of course it is important that there are safeguards to prevent fraud and to ensure that a Will is genuinely what the individual wants; that he or she understands it; and that he or she has not been put under pressure to make the Will.

A public consultation by the Law Commission is currently underway and is open until 10th November 2017.

If you have any questions about this article then please don’t hesitate to call Janet Strong on 01793 532363.

Debt Recovery from 1st October 2017

On 1 October 2017 a new Pre-Action Protocol comes into effect for debt claims, where the Creditor is a business (including sole traders and public bodies) and the Debtor is an individual (including a sole trader).

The principle aims of this protocol, as with those covering other areas of the law, are to encourage early engagement between the parties, enable the parties to resolve matters without the need for Court proceedings, encourage the parties to act in a reasonable and proportionate manner and to assist in the efficient management of Court proceedings if those cannot be avoided.

Whereas beforehand the letter before claim may have only contained scant detail, now the letter needs to include a prescribed list of information including:-

The amount of the debt, interest and other Charges claimed.
The date of the agreement to which the debt relates, and the parties to that agreement.
If the debt is assigned, details of the original debt and creditor, when it was assigned and to whom.
If regular instalments have been offered, while being paid, an explanation of why that offer is not acceptable and why a Court claim is being considered.
Details of how the debt can be paid.

The letter will also need to include an up to date statement of account for the debt including details of any interest and administrative or other charges added plus a Reply form and a Financial Statement form as annexed to the protocol.

The letter of claim needs to be sent by post unless an alternative method has been agreed with the debtor. If the debtor does not reply to the letter of claim within 30 days, the creditor may then start Court proceedings subject to any obligations which the creditor may have to the debtor.

If a reply is received, the debtor will be allowed a reasonable period to take legal advice and in any event the creditor cannot start Court proceedings less than 30 days from receipt of the completed reply form or having provided any documents requested by the debtor whichever is the later.

Where the debtor indicates in their reply form that they require time to pay, the parties should try to reach agreement for the debt to be paid by instalments based upon the debtor’s income and expenditure. If the creditor does not agree to a debtor’s proposal for repayment of the debt they need to give the debtor reasons in writing.

If a partially completed reply form is received, the creditor should contact the debtor to discuss the reply form and obtain any further information needed to understand the debtor’s position.

Where any aspect of the debt is disputed the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position and if the debtor requests any documents the creditor should provide those or else explain why they are not available within 30 days of receipt of that request.

If the parties still cannot agree about the existence, enforceability, amount or any other aspect of the debt, they should both take appropriate steps to resolve the dispute without starting Court proceedings and, in particular, should consider the use of an appropriate form of Alternative Dispute Resolution (ADR). This could be informal discussions or else more formal process such as a complaint to the Financial Ombudsman or, especially, where the debt is large, mediation.

If the parties reach agreement concerning repayment of the debt the creditor should not start Court proceedings whilst the debtor complies with that agreement. If the creditor wants to start Court proceedings at a later date in the event of default by the debtor, they must still send an updated letter of claim and comply with the protocol afresh but you do not need to send the supporting documentation if that was sent within the preceding 6 months.

If Court proceedings are brought, the Court will expect the parties to have complied with the protocol and it is likely that the Court would sanction a party that has not complied with the protocol.

If agreement cannot be reached then the creditor must give the debtor at least 14 days’ notice of its intention to start Court proceedings save where there are exceptional circumstances, for example where a limitation period is about to expire.

Clearly, one of the principle rationales behind this new protocol is to reduce the number of debt claims which come before the Courts and these requirements as set out in the protocol require the parties to ensure that they comply else face the consequences of not doing so should litigation ensue.

To name or not to name Michelle Bowyer clarifies current position

There have been sensationalist headlines in the press over the last week or so relating to having to name a third party to divorce proceedings where the petitioner is relying upon adultery as the cause of the marriage breakdown.  This is not true!  The divorce petition has been redrafted in order to make life easier for litigants in person although I would suggest that its predecessor was much more user friendly.

However, it does not require the petitioner to such proceedings to name a co-respondent.  There is, as there always has been; opportunity to name the third party but best practice remains the same:  naming a third party should be avoided.

An adultery petition requires evidence of sexual intercourse between a man and a woman in absence of an admission.  Therefore, best practice is to establish if the proposed respondent is willing to admit to the indiscretion and if he/she is not then generally, we would advise to choose another route to dissolving the marriage.

As a Resolution accredited specialist, I observe a code of conduct which promotes a conciliatory approach to resolving family legal issues and therefore, regardless of the wording in the guide to a divorce petition, I will continue to adopt this approach.  “Naming and shaming” will only inflame the situation and create more tension at a time when we should be seeking to resolve matters in pursuit of a swift and fair settlement.  It also makes the third party a party to the proceedings which can in itself cause all manner of complications if they choose not to participate.

If you require advice in relation to a divorce or any other family law matter please call and speak to a member of our family team on 01793 532363.