All posts by Bishop & Sewell

Conveyancing chains: the ties that bind

Conveyancing chains: the ties that bind

 

One of the more stressful aspects of the conveyancing process is what is known as ‘the chain’. A conveyancing chain is simply where there is more than one buyer and seller involved – e.g. you are selling to someone who in turn is selling to someone else and so on.

The chain

A chain of conveyancing transactions usually does make things more complicated, because everybody has to get their own transaction ready, and they all have to wait for the slowest person to come up to speed. Finally, even when all the parties are ready, things are made slower because the mere act of trying to agree a date to move on can be a source of disagreement – the various people up and down the chain all have their own agendas to follow, and a date has to be agreed upon that can please (or at the very least not aggravate) everyone. It is for this reason, among many others, that a savvy estate agent and an experienced solicitor are worth their weight in gold.

Completion

In order to complete your purchase you will need the funds which you are receiving on your sale. If your buyer or seller or their solicitors and agents are strict, unhelpful or inefficient, there may well be an uncomfortably long interval between your leaving the property you are selling and receiving the keys to the property you are buying. The chain will only come together and work on the day of completion if some of the people concerned are flexible and take a measure of risk. Our experience is that sufficient trust and goodwill is generally shown on completion for the system to work in practice, despite the inadequacies of the banking system and all kinds of things going wrong unexpectedly and unforeseeably.

Broadly speaking, what happens on the day of completion is as follows.

  1. You will empty the property you are selling and pass the keys to your estate agents.

  2. Once your solicitor has received the funds from your sale, your solicitor will speak to your buyer and complete your sale. Your estate agents will then be contacted and they will hand the keys over.

  3. It is best practice that you do not to allow your buyer to move in to your property or to hand over the keys to your buyer until you have been informed that the purchase funds have been received and that your buyer is ready to complete and release the keys to you on your new property.

  4. Once you have completed your sale and your solicitor has any funds needed from you or your mortgage provider, your purchase monies are then transferred to the seller’s solicitor.

  5. You and your movers may well reach the property you are buying and be ready to move in before your seller has moved out or before your purchase monies have arrived. It can be a frustrating wait before you can persuade your sellers to let you in or allow the seller’s agents to hand over the keys to you, put patience is key.

  6. When the seller’s solicitors inform your solicitor that they have your purchase monies and it looks as if that your seller is out, then you can complete your purchase. Your seller’s solicitors should then telephone the seller’s agents and authorise them to hand over the keys to you.

Should something go wrong on the day of completion, you will need an experienced and communicative solicitor to assist. The one way to avoid the risks of a chain is to sell and move somewhere temporarily before you buy, but that has disadvantages of its own. The best advice that can be given is that a lot of patience and a bit of good will go a long way to easing the stressful completion process.

At Bishop & Sewell, we have more than 30 plus years’ experience in conveyancing and have an expert team familiar with all forms of property purchase. We always treat our clients as individuals with their own particular needs and concerns. We provide you with a dedicated conveyancing lawyer to ensure the best level of service and communication from start to finish.

Charlie Davidson is a Solicitor in our Property team.

If you are thinking of buying or selling a property or if you have any questions regarding the conveyancing process, please call 020 7631 4141 and ask for a member of the Property team or email mail@bishopandsewell.co.uk.

This article is intended as a general summary on the law – no reliance should be placed on it without specific legal advice.

 

Forthcoming Royal Wedding

Forthcoming Royal Wedding

 

The Family Department at Bishop & Sewell are delighted to take this opportunity to congratulate HRH Prince Harry and Ms Meghan Markle on their engagement and wish them every happiness in the future.

We will not be taking this opportunity to write articles about Prenuptial Agreements and having the temerity to vicariously advise the Royals at large and the young Royal couple themselves about such matters, as we anticipate many of our friends and colleagues in the profession will do.

Suffice it to say that we are very happy to advise our clients on Prenuptial Agreements and other matters relating to Family Law and relationship breakdown.  On this occasion, however, it seemed appropriate for us to send our best wishes to the Royal couple and wish them a long and happy marriage.

 

Stamp Duty Land Tax relief for first-time buyers

Stamp Duty Land Tax relief for first-time buyers

During this year’s Autumn Budget, it has been announced that from 22 November, 2017 Stamp Duty Land Tax (SDLT) would not be paid on first-time buyers’ purchases of up to £300,000.00. The announcement from Philip Hammond came amid wide-ranging measures aimed at boosting house building in the UK, putting the UK’s housing shortage at the heart of the current government’s budget.

Before today’s announcement, first-time buyers paid SDLT on property with a purchase price of £125,000.00 or higher. As of today, SDLT will be abolished for first-time purchases up to £300,000.00, having the knock on effect that first-time buyers will pay less on purchases between £300,000.00 and £500,000.00.

Please see a breakdown below showing SDLT for a first-time buyer both before and after today’s Budget:

Before Budget 22 November Onwards
£200,000.00 £1,500.00 £0.00
£300,000.00 £5,000.00 £0.00
£400,000.00 £10,000.00 £5,000.00
£500,000.00 £15,000.00 £10,000.00
Above £500,000.00 SDLT due is unchanged on purchases above £500,000.00

 

In order to be eligible for this new relief, buyers will have to meet the provided definition of a first-time buyer. HM Treasury have confirmed that a first-time buyer will be someone “who has never owned freehold or leasehold interest in a dwelling before and who is purchasing their only or main residence. Residential property anywhere in the world is counted when determining whether someone is a first-time buyer. Where there are joint purchasers, all purchasers would need to be first-time buyers”.

From the guidance currently given, the relief would still apply where a person’s spouse or civil partner owns a property, but the buyer does not – provided their spouse or civil partner keeps their name off the title of the property. This is in stark contrast to the provisions surrounding the 3% SDLT surcharge on the purchase of additional properties, where your spouse or civil partner is treated as a joint purchaser when buying the property for SDLT reasons, even if they are not going on the title.

It is clear that it is the government’s hope that this new relief will abolish SDLT altogether for 80 per cent of first-time buyers. However, critics of the policy have been quick to suggest the new SDLT relief will do little to improve affordability of the UK’s current housing stock and could have the unintended consequences of inflating housing prices even more, as buyers flood into the market. In any event, this is welcome news for all first-time buyers and for Bishop & Sewell clients who are making their first step onto the property ladder.

At Bishop & Sewell, we have more than 30 plus years’ experience in conveyancing and have an expert team familiar with all forms of property purchase. We always treat our clients as individuals with their own particular needs and concerns. We provide you with a dedicated conveyancing lawyer to ensure the best level of service and communication from start to finish.

Charlie Davidson is a Solicitor in our Property team.

If you are thinking of buying your first property or you have any questions regarding SDLT, please call 020 7631 4141 and ask for a member of the Property team or email mail@bishopandsewell.co.uk.

This article is intended as a general summary on the law – no reliance should be placed on it. 

 

A new Pre-action Protocol for Debt claims

A new Pre-action Protocol for Debt claims

Is it a Lessee’s charter to avoid payment of service charges?

The Pre-action Protocol for Debt Claims (“the Debt Protocol”) came into force on 1 October 2017. It applies to any debt claim where a business (including sole traders and public bodies) is seeking to recover payment of a debt from an individual debtor (including a sole trader). This new protocol will include arrears claims against lessees.

The aims of the Debt Protocol

The aims of the Debt Protocol are to encourage early communication and exchange of evidence between the parties; to identify, clarify and narrow the issues in dispute; enable parties to avoid court proceedings either by agreeing a debt repayment plan or referring the matter to some form of Alternative Dispute Resolution. It also aims to encourage the parties to act reasonably and proportionately in relation to the size of the debt being sought; and, generally supports the efficient management of any proceedings which cannot otherwise be avoided.

The requirements for the Letter of Claim

Before issuing proceedings, the landlord needs to send a Letter of Claim to the lessee stating:

  • the debt amount,
  • interest accruing (if any),
  • state details of any agreements with the lessee in relation to previously agreed payment plans and why these are no longer acceptable,
  • details of how the debt can be paid, and

  • the address to be used for the completed Reply Form.

In addition:

  • a copy of the statement of account,
  • a copy of the Information Sheet,
  • the Reply Form, and
  • a Financial Statement Form should be enclosed with the Letter of Claim.

Unless the lessee has explicitly requested that correspondence should not be sent by post and has also provided alternative contact details, the Letter of Claim should be sent by post and can also be sent to an email address, if the landlord has one for the lessee.

The Lessee’s Reply

What has changed now is the requirement to give the lessee 30 days to reply to the Letter of Claim before issuing court proceedings. If the lessee requests additional time to take independent legal advice, the landlord should allow reasonable extra time for debt advice to be obtained. If the lessee says that it requires time to repay the debt, the landlord and the lessee should seek to agree an instalment repayment plan, which is based on the lessee’s income and expenditure. If the landlord cannot agree or is not prepared to accept a lessee’s proposed repayment plan, it must explain reasons for its refusal in writing.

If the parties agree a debt repayment plan, and the lessee starts but then stops complying with such a plan, before issuing court proceedings, the landlord must send an updated Letter of Claim and comply with the Debt Protocol afresh. If a lessee has sent a Reply Form to the landlord but no debt repayment plan was agreed between the parties, then the landlord should give the lessee at least 14 days’ notice of its intention to issue court proceedings. Non-compliance with the Debt Protocol may be taken into account by the court when giving directions for the management of the proceedings and/or making orders for costs.

Conclusion

In summary, the landlord has to comply with the new Debt Protocol before issuing court proceedings against a lessee who is in arrears. The Letter of Claim must be more detailed than has previously been required and a number of documents need to be included with the Letter. If a repayment plan is agreed and the lessee does not stick to its terms, a landlord has to send another Letter of Claim before issuing proceedings. The lessee has 30 days to reply to the initial Letter of Claim and another 30 days should a second Letter of Claim be required. Whilst this is not a lessee’s charter to avoid payment all together, it may nevertheless cause significant delay for the landlord.

Karen Bright is a Partner in the Dispute Resolution team at Bishop & Sewell LLP

Should you require further advice on the new protocol and how to comply with it, please contact Karen via email on propertyexpert@bishopandsewell.co.uk or telephone 020 7631 4141.

Landlord: I have an Order for Possession – what now?

Landlord: I have an Order for Possession – what now?

Evicting a tenant is often a difficult and drawn out process for residential landlords. Of course, landlords must comply with requisite notice periods and issue proceedings (mostly in the County Court) with a view to obtaining a warrant of possession of the rental property; a process which often takes several months in itself.

Even after the warrant has been obtained, however, a residential landlord will often wait many weeks, if not months, for an appointment from a County Court Bailiff to attempt eviction, causing further losses.

To overcome this, many landlords have sought to transfer their possession proceedings to the High Court with a view to applying for a ‘writ of possession’ to be executed by one of the licenced High Court Enforcement Officers within a much quicker time frame.

The procedure

To transfer the proceedings to the High Court, a landlord must:

  1. Apply to the Court for an order transferring up to the High Court (pursuant to section 42 of the County Courts Act 1984); and
  2. Once transferred, apply to the High Court for permission to issue a ‘writ of possession’ (pursuant to rule 83.13(8) of the Civil Procedure Rules).

Permission to issue a writ will not be granted unless ‘every person in actual possession’ of the land has ‘received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the Court for any relief to which the occupant may be entitled’ (rule 83.13(8) CPR).

In the case of Secretary of State for Defence v Nicholas [2015], it was held that ‘notice of the proceedings’ meant that the occupier must be served with the application for permission to issue the writ of possession. In practice, this meant that a tenant would be granted the opportunity to formally oppose the application and request a hearing for the application, which would cause further delays for the landlord and an increase in costs.

Partridge v Gupta (2017)

In the case of Partridge v Gupta, Mr Gupta (the landlord) successfully obtained a possession order requiring Mr Partridge (the tenant) to vacate the premises. Mr Partridge had defended those proceedings but was ultimately unsuccessful. As a result, Mr Gupta instructed a High Court Enforcement Officer to transfer the proceedings to the High Court and apply for a writ of possession with a view to prompt execution.

The proceedings were duly transferred to the High Court and the High Court Enforcement Officer issued a ‘without notice’ application to obtain a writ of possession, which meant that the application was not formally served on Mr Partridge. The writ was granted on 8 July 2016 and executed a few days later on 12 July 2016.

Mr Partridge attempted to set aside the writ of possession on the basis that he did not receive formal notice of the proceedings pursuant to rule 83.13(8) CPR and in accordance with the case of Nicholas [2015]. When his application to set aside was dismissed, Mr Partridge appealed the decision and the matter was referred to the Queen’s Bench Division of the High Court for consideration.

Whilst Mr Partridge argued that he ought to have been given formal notice of the application for a writ of possession, he accepted that he had been informed about Mr Gupta’s intention to apply for the writ of possession and that he knew that the claim had been transferred to the High Court for enforcement.

Justice Foskett dismissed Mr Partridge’s appeal. In particular, it stated that the rule did not require formal notice of the application for permission to issue the writ of possession. He stated that, whilst each case would turn on its own facts, it was generally sufficient for a more informal notice by letter or other communication that the application will be heard on a particular day or at a particular time. It was found that Mr Partridge had sufficient knowledge to enable him to apply for any relief that he may have been entitled. In the event, Mr Partridge did not apply for any relief and the writ of possession was valid.

Conclusion

The decision in the above case doubtless provides helpful guidance to landlords who are seeking to expedite the enforcement process in possession claims.

Anastasia Mavroudis is a Solicitor in our Dispute Resolution team.

If you are looking for assistance with regard to a property dispute matter, please contact one of our expert team on propertyexpert@bishopandsewell.co.uk or call 020 7631 4141.

 

Divorce & Pensions: Women left behind …

Divorce & Pensions: Women left behind …

 

I have just read a report published by the Scottish Widow’s research team (see below). This report claims that more than half of married people would fight for a fair share in any jointly owned property and, yet fewer than one in 10 claim that they would want a fair share of pensions. In fact, the research shows that married people appeared to be more concerned about losing a pet during financial negotiations than sharing pensions.

The research goes on to state that this trend adversely affects women more than men and that generally women are less prepared for retirement than men, with only 52% having saved adequately. The percentage of men having saved adequately is a little higher at 59%.

However, divorced women are even less prepared. The figure is an astonishing 24% of women who have not saved anything into a pension. The statistic that I find most unbelievable is that currently 71% of divorced people do not even discuss pensions during divorce proceedings. What are their solicitors doing? Pension sharing as a financial remedy was introduced almost 20 years ago, and with clients of a certain age, it is often the most valuable asset after the matrimonial property. It is imperative that solicitors advise their clients about the possibility of pension sharing. This will sometimes result in the need for an expert actuarial report when you would like to compare income on retirement, as opposed to the cash value of the pensions at the time of divorce.

Scottish Widows: Women and Retirement Report 2017: Retirement Independence

Louise Barretto is a Partner in our Family team.

If you have any queries about pensions on divorce or concerning family relationship and divorce matters more widely, please contact a member of our expert family team on family@bishopandsewell.co.uk or call 020 7631 4141.

Uber loses its worker-status appeal in Employment Appeal Tribunal

Uber loses its worker-status appeal in Employment Appeal Tribunal

 

Do you use self-employed contractors in your business? If you do, then you need to know about the Uber judgment given today.

Uber has long claimed that its drivers are self-employed. This allows it to pay for services at a rate below the National Living Wage, and avoid deducting Income Tax and National Insurance Contributions. This arrangement is how Uber keeps its fares low, and its market share increasing. However, in November 2016 two drivers won a case against Uber asserting their worker status. Uber immediately appealed, and that appeal’s judgment was given today.

Uber’s appeal claimed that they were acting as agents for the drivers when passengers booked trips using the app. This would mean that the drivers could be self-employed contractors, but would allow Uber to control the terms of their contracts with passengers. They also claimed that the initial Tribunal judgment’s findings were inconsistent and perverse.

The appeal judgment was given today by Her Honour Judge Eady QC. Her judgment stated that despite Uber’s written documentation, the reality of the situation and the ‘true nature of the parties’ bargain’ was that the drivers were:

‘incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account.’

The judgment also upheld the initial Tribunal’s findings as not inconsistent or perverse.

The link to the judgment is available here.

What does this mean for businesses?

The Uber judgment means that the risk of contractors using the courts to assert worker status is now real. For businesses using self-employed contractors or engaging service companies, it means that they should review their arrangements to ensure that the commercial risk profile stays within the tolerances of the business. To do this, businesses need to take specialist tax and employment advice in tandem.

It’ll also mean that Uber’s fares will probably go up.

Uber’s driver arrangements were designed to skim as close to the IR35 line as possible. IR35, or the Intermediaries Regulations, are the rules that HMRC apply to determine whether someone is truly self-employed, a worker, or an employee. These rules aren’t conclusive: there are a series of factors that can point either way. Through our links with EY, we’ve had sight of the new 42-question test that HMRC is developing and we’re keeping up with the Government on the changes.

The Employment team at Bishop & Sewell LLP are frequent advisors on employee status issues, and regularly assist employment businesses and start-up services in staying profitable and on the right side of the law. Never assume –check. If you think your business is at risk, contact Andrew Humphrey, Head of Employment or email employment@bishopandsewell.co.uk

 

Promotions at Bishop & Sewell

Promotions at Bishop & Sewell

We are delighted to announce two promotions for the firm: Helen Langworthy, Head of our Private Client team becomes a Partner and Michael Kashis, currently a Partner and Head of our Company Commercial team, now joins the Equity Partnership team, which comprises Stephen Bishop (Founder and Managing Partner), Michael Gillman (Senior Partner), Ossie Swaine (Partner), Nick Potter (Partner) and Mark Chick (Partner).

Helen Langworthy is Head of Private Client at Bishop & Sewell and joined the firm in 2011. She has extensive experience in dealing with all aspects of private client work including drafting wills, the administration of estates, the creation and administration of trusts and general lifetime tax planning for family wealth. Helen is also a Full Member of the Society of Trust and Estate Practitioners (STEP), a worldwide professional association for practitioners dealing with family inheritance and succession planning.

Michael Kashis joined Bishop & Sewell in September 2014 and leads our Company Commercial team. He became a Partner in 2016 and now joins our Equity Partnership team. Michael recently completed an executive MBA at Imperial College furthering his focus on both UK and international business and also increasing the scope of his advisory capability for both startups to more established businesses. His traditional work has spanned a wide range of corporate, commercial, capital market and financing transactions for both private and public companies, financial sponsors and investors/investees. Prior to joining Bishop & Sewell he worked in-house as a commercial lawyer in a variety of sectors including life sciences and natural resources.

We congratulate them both on the significant contribution they have made to the firm which now has 20 partners and whose full service remit runs across three core areas of Property, Commercial and Personal Legal Services.

These promotions follow on the back of a busy 2017 for Bishop & Sewell which merged with Fisher Meredith in the Summer which has increased the firm’s team of fee earners to over 50 across Residential & Commercial Property, Corporate, Private Client, Litigation, Immigration and Family, with an international reach via our membership of Pragma, an international network of lawyers and consulting firms.

UK post-Brexit vision for EU citizens draws fire from MEPs

UK post-Brexit vision for EU citizens draws fire from MEPs

 

The government’s latest proposals for the future of EU citizens living in this country have drawn fire from the European Parliament, which claims there are still “major issues” with the UK’s approach.

The government’s newly published ‘Technical Note’ was intended to allay the concerns of EU nationals and their families but has been criticised by the European Parliament’s Brexit Steering Group.

In a statement published on Wednesday, the MEPs took issue with the “administrative procedures” set out in the document, arguing that EEA nationals and their families should not be subject to additional financial costs, and that the acquisition of “settled status” should be automatic.

The government’s ‘Technical Note’ adds little to its detailed proposals published in June 2017, when it first described its post-Brexit vision for EU citizens living in the UK. However, it does contain slightly more detail on possible procedures and costs.

Key elements of the government’s proposals, some of which are new and some of which simply reiterate previous statements, are as follows:

  • There will be a much simpler “streamlined”, digital process when applying for documentation
  • The process will draw on information from a variety of government sources in order to reduce the documentary burden on applicants
  • The fee will be “no more than a British passport” (i.e. approximately the same cost as now)
  • People who already hold a document confirming their settled status (i.e. a Permanent Residence Card or a Document certifying Permanent Residence) will be required to exchange this for a settled status document in a “simple process” including a “security check and confirmation of ongoing residence”. There will be a “reduced fee” for this.
  • The criteria for ‘settled status’ will be the same as for ‘permanent residence’, i.e. five years of residence as a worker, self-employed, student or someone who is self-sufficient (i.e. not working but not claiming benefits), except the last two categories will not have to demonstrate they have held comprehensive sickness insurance
  • Applicants who have not yet built up five years of residence by a “specified date” will be given a temporary document allowing them to remain in the UK until they have built up the five years required for settled status
  • In cases where the Home Office refuses to issue a document, there will be a right of appeal

The document does not clarify what the “specified date” or “cut-off date” will be as this has yet to be agreed with the EU. It is expected to fall at some point between 29 March 2017 and our exit from the EU.

It is important to bear in mind that the contents of the document are still nothing more than the UK government’s proposals at this time, subject to the approval of our EU partners. To date, the EU’s response to Downing Street’s post-Brexit plans has been lukewarm at best.

In effect, the procedures and plans set out in the Technical Note will only come to pass if they can be agreed with the rest of the EU. Once that happens, they will form part of the official Withdrawal Agreement, the UK’s treaty with the rest of the EU. This will eventually form part of UK law.

However, this day is still a long way off and it remains to be seen whether the EU will accept the UK government’s stance on its citizens. The response of the European Parliament suggests these proposals are likely to meet with considerable resistance and may well be amended at a later date.

If and until the Withdrawal Agreement takes effect in UK law, EU citizens and their families will remain subject to existing provisions.

 

Karma Hickman is an Associate Solicitor in our Immigration team.

For advice and assistance on making a visa, immigration or nationality application or for any other immigration enquiry, please contact our Immigration Team on 020 7631 4141 or email immigration@bishopandsewell.co.uk.