Life in Law, by Michelle Bowyer, Family Team

A life in Law:

6th June 1996: my first day at work in a Solicitors office. A sunny day in Portsmouth and I recall my new colleagues looking hot, sweaty and over-worked. I was fresh faced and bursting with excitement at securing a role in law having spent an unimaginative year in pension administration as a stop-gap following my graduation from university. I was a trainee legal executive and I faced a baptism of fire. I was in a busy crime department and I was soon attending court, visiting clients in prison, preparing statements and analysing evidence. If the civil team needed someone to undertake an oral examination at court, I was sent jogging over with the reminder that one of the Partners had once reduced a defendant to tears: this had become folklore in the office and the pressure was on to be as equally as robust. I never did make anyone cry in those sessions and it wasn’t until my appearance in the family team later that year that I witnessed tears from a client. I still witness tears on a frequent basis almost 22 years later. I never forget that in family law, we are dealing with people’s lives. I meet the loveliest of people facing one of the most challenging times anyone can face: family breakdown. My role is to guide them through the process, advise them in relation to divorce, the financial consequences, arrangements for their children and if necessary, protection from harm. Dividing one home between 2 can be a challenge; helping parents agree what is best for their children when communication and trust has broken down between them can be a challenge. Assuring an abused party that the piece of paper called an injunction will keep them safe; can be a challenge.

Save for that forgettable year in pension admin and a year on maternity leave; this is the only job I’ve had. I’m no longer a trainee legal executive: I continued to study whilst working and qualified as a legal executive in 2000 and as a solicitor in 2005. However, the job remains the same even with the numerous changes in law and legal precedent over the past 2 decades: People’s lives. They place their trust in us to guide them through their darkest days and I take huge satisfaction in doing just that and in seeing the fog of desperation lift. Occasionally, a client will touch base with me long after their case and it is always a delight to discover that contrary to their belief at date of us meeting; there is life after family breakdown. If handled sensitively, with care, compassion and in a conciliatory fashion; this can be achieved with the fewest of tears and with hope not just for my client’s future but for their children and wider families, all of whom can suffer following the breakdown of a relationship.

 

It helps to be clear

Putting things in writing can help to avoid misunderstandings, bad feeling and litigation.

A recent case (Habberfield v Habberfield) highlighted the importance of being clear when arranging your affairs.

The case involved an application by a daughter claiming a family farm, owned by her deceased father, or (failing that) a sum of money. The claim was brought against her mother using what is called “proprietary estoppel” or, alternatively, under the Inheritance (Provision for Family and Dependants) Act 1975. Under that Act, certain family members and dependants can make a claim against the estate of someone who has died if they will not otherwise have reasonable provision from the estate.

The daughter said that she had devoted her entire working life to the farm on the assurance that she would eventually take it over when her father retired and that she would receive the freehold at some unspecified later date. Following a dispute in 2013, however, she had left the farm. When her father died, he left his interest in the property to his wife. His wife disputed the daughter’s claim.

The Judge decided that many of the promises which the daughter said had been made were ambiguous. However, he also decided that the assurances had led to the daughter acting to her own detriment (working long hours at the farm for low pay and few holidays when she could instead have built up her own business).

He awarded the daughter the sum of £1.17m; if that wasn’t paid, it was likely that a sale of the family farm would be required.

Having decided this, the Judge did not feel it necessary to go on to make a decision under the Inheritance Act in this particular instance. If the first part of the claim had failed, however, he would no doubt have considered the Act.

Some useful lessons can be drawn from this case:

1. Be careful what you promise – particularly where someone relies on the promise to their own detriment;

2. Set out significant agreements in writing, so everybody knows what has been agreed;

3. On the matter of Wills: Wills can be challenged for various reasons. When making a Will, it is important to consider your financial obligations and to make reasonable financial provision for those close to you.

A good reason for making a Will – and, indeed, for having proper, written agreements about business and property during your lifetime – is that you can make your intentions clear. One of the problems in this case was the lack of clarity about what the man who had died (and indeed, his wife) had intended or, indeed, what they had agreed with their daughter.

Our Commercial Department can advise you regarding partnership agreements and other matters relating to business. Our Homemove department can advise you regarding property if you are considering transferring land and/or setting out in writing who is entitled to the proceeds of sale of property. Our Wills and Estates Department can advise you regarding Wills and dealing with the estate of someone who has died. And if you need advice about a possible claim against the estate of someone who has died, please contact Peter Shah in our Litigation/Dispute Resolution department.

LANDOWNERS BEWARE – TELECOMMUNICATIONS EQUIPMENT

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

Email:                      hugh.ellins@bevirs-law.co.uk