The Final Practice Row

Last Sunday was the final practice. Reading Rowing Club is closed on Thursday because of the Reading Festival. Sad that some people attending a music festival thing it is an occasion to practice  their vandalism skills. Where are the days of the hippies?

Hugh Ellins

The last row passed without collision but not without incident.  Regretfully one of the seats broke so that instead of sliding back and forth in conjunction with the rower’s stroke poor Warren was left with his knees in close proximity to his ears. That necessitated the bow pair to gently row us back to base.  After much head scratching and with the assistance of a knowledgeable member of the rowing club we got a replacement seat and away we merrily went on our way.

Our way consisted of several trips over the same couple of miles of the Thames. A stretch, by now well known to us. Whether loved I leave open.  Our efforts over the last few weeks have resulted in us now resembling a crew of rowers. The blades going into the water and coming out at the same time.  In Out In Out. The sound of John Snagg resonates in my ears. That was true until the young Turks decided that they wanted to see  if they could row the boat  at  10 miles an hour.  On that  occasion I was the cox. “On the Stroke” I call.  “3,2,1 Row “ I shout in a fair imitation of the Great  British Bake Off.  Away we went the boat almost shuddering with the strain. Looked impressive for about five strokes and then the timing went a little awry. As the timing went awry  so the water  was splashed. The rowers and cox got  wet and the Thames placid surface became distinctly ruffled. The  Old Man of the Thames  was obviously  unhappy so  we  went to our  more accustomed rhythm and peace descended.

After the session we undid all the good done by retiring to the nearby bar to partake of liquid   refreshment and to do some bonding.

Now to the main event next  Saturday. There is still plenty of time to give if you haven’t and would like to. The address is  www.justgiving.com/fundraising/sbccthamesrow2019. The NSPCC needs the  money which is what this is all about.

Hugh Ellins

20.08 2019

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

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: zoe.tibbles@bevirs-law.co.uk

Bevirs Law sponsors Christmas Trees in Royal Wootton Bassett for the next five years.

We were so pleased to be asked to sponsor the Christmas trees in Royal Wootton Bassett and have signed a contract to sponsor them for the next five years.

To celebrate this, on 1st December, we invited some long standing clients and local businesses along for some festive food and the odd glass of vino!

Thank you to everyone that attended, we had a lovely evening and hope you did too!

Thank you to everyone that attended, we had a lovely evening and hope you did too!

Parental alienation: CAFCASS crackdown

Parental alienation:

https://www.theguardian.com/society/2017/nov/17/parental-alienation-divorce-custody-crackdown-cafcass?CMP=share_btn_link

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.

Legal Surgery regarding Powers of Attorney

In association with Swindon Supermarine Sports and Education Trust and Swindon Carers, Bevirs Law were asked to run a Legal Surgery regarding Powers of Attorney, The Court of Protection, Wills, Trusts and Probate.

Nicholas Sewell and Janet Strong who both presented at the Legal Surgery were delighted to have such a lovely and interactive crowd.

Janet “It was a pleasure to meet everyone and it is always interesting to hear the experiences of different people. I would like to thank everyone who raised individual queries, as I think these help bring the law to life as a practical subject, not just an academic one.

It highlights the huge benefits of talking face to face. Everybody’s circumstances are different, which is why we still like to meet clients to discuss their individual circumstances and priorities and then advise them on what is available and how they can achieve their own particular goals.”

We received some great feedback from the Carers that attended the surgery to include:

“Absolutely invaluable today to know you are getting professional advice”

“A really worthwhile event as it can be a mindfield for everyone especially carers”

“A really great day and useful information and advice given thank you”

Swindon Carers is a charitable organisation, which is part of the Carers Trust Network, and were established to provide help and support to the 21,000 carers in Swindon. To find out more about Swindon Carers Centre and what they can offer please click on the following link http://www.swindoncarers.org.uk/about-us/

Bevirs would also like to thank Swindon Supermarine Sports and Education Trust (SuperSET) for the use of the Trust Building setting the perfect environment for the audience and some of the tricky subjects we covered.

For any more information regarding this article or should you wish to discuss with us the possibility of a tailor made legal surgery for your organisation then please don’t hesitate to contact hayley.tarrant@bevirs.co.uk or ring on 01793 532363 ext 336.

Bevirs provide work experience or Zac

We met Zac Lewis at the Ridgeway Careers fair in March this year and we were delighted when he subsequently got in touch and asked to participate in some work experience with us.

Zac will be progressing to Ridgeway Sixth Form later this year and hopes to undertake Sociology, History and English A-levels before embarking upon further education at either The University of Law or Bristol University to secure his future as a Family Solicitor.

It was a pleasure to host Zac who over the course of two days experienced various areas of high street practice. He spent time with Michelle Bowyer in our Family Team, Peter Shah in our Dispute Resolution Team and Janet Strong in our Wills and Estates Team.

It was lovely to hear how beneficial his time with us has been and how we have inspired him to become a successful Solicitor one day.

It was Michelle Bowyer who met Zac at the Careers Fair in March this year and has overseen his time with us. She enjoyed sharing her love of the law with Zac and was thrilled at Zac’s enthusiasm for this profession:

“It was lovely to see Zac again following our initial meeting in March. He demonstrated a genuine interest in what we do as solicitors and I was thrilled to hear from him that this experience has helped him decide not only what area he is likely to practice but also that the family feel and approachable nature of a high street practice is more appealing to him when looking at a future career. I wish Zac all the best with his studies between now and hopefully will see him at the year 12 careers fair in March 2019”.

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.