Members of the Landlord & Tenant and Property teams will be at the National Landlord Investment Show today at London Olympia.
This event provides a platform for current and prospective landlords to keep up-to-date with industry developments and provide access to a host of leading experts, suppliers and educational seminars.
Chris Macartney, Partner in our Landlord & Tenant Department will be speaking on the subject of ‘What to look for when buying a leasehold property as an investor’ in Seminar Room 2 at 14:10 and several members of the team will be on hand to answer questions.
For follow-up or queries please contact email@example.com or telephone 020 7631 4141 and ask to speak to a member of the Landlord & Tenant team.
Bishop & Sewell recognised in Chambers & Partners 2018 rankings
Bishop & Sewell is delighted to learn that the firm has been recognised in the 2018 edition of Chambers & Partners, a leading independent guide to the legal profession, in the following areas:
Chambers guides are the culmination of thousands of in-depth interviews by the largest research team of its kind and are trusted globally to objectively rank the world’s best lawyers and law firms. Announced annually each November and based on a series of client and peer interviews, the process involves ranking individual lawyers and firms in bands from 1-6 (with 1 being considered the best).
Across all our departments, we continue to see our solicitors consistently delivering an excellent and valuable service across our three core areas of property, commercial and personal legal services.
Are lock out agreements the way forward?
Government calls for an end to gazumping in conveyancing: are lock out agreements the way forward?
Once again the thorny issue of “gazumping” is being brought to the forefront by Communities Secretary Sajid Javid. Housing has always been a hot political issue, even more so with the ever increasing housing shortage.
To understand gazumping, you must be aware of the most important milestone in the conveyancing process: ‘exchange of contracts’.
‘Exchange of contracts’ is the moment when the solicitors for the buyer and for the seller agree that there is a binding contact to transfer a property, and that the seller will be legally obliged to sell the property, and the buyer will be legally obliged to buy it, on the agreed completion date. This is the effect of Section 2 of the Law of Property (Miscellaneous Provision) Act 1989, stating that a contract for the sale of land must be in writing. A verbal agreement will not suffice. This has been a mainstay of English law, all the way back to the Statute of Frauds in 1677.
The issue unfortunate buyers’ find themselves with is that before exchange of contracts, there is no legal agreement between a buyer and a seller. Either party is free to walk away, no questions asked. In the case of gazumping, this is where the seller decides to sell the property to another buyer who offered a higher price despite already having a buyer in hand.
This process became pandemic during the booming property prices experienced in the late 1980’s and early 1990’s. One of the proposed solutions to this is to have an exclusivity agreement, otherwise known as a Lock Out agreement in place. This would be an agreement between the parties that, for a fixed period of time, the seller would agree not to sell or market the property to another buyer.
As an agreement is only as good as the remedies it allows, what are the consequences of a party that breaches a lock out agreement?
The agreement will normally allow the buyer to recover “wasted costs” if the seller breaches their obligation, normally this means whatever abortive costs the buyer’s conveyancer charges. However, a wronged party would not be able to petition the Courts to compel the sale of the property nor to seek substantial damages. Courts are often loathed to enforce the sale of a property unless there are usual and pressing circumstances surrounding the abortive purchase. The bottom line is that while a lock out agreement may prevent a seller seeking other buyers it cannot require a seller to exchange contracts with you.
Because of the nature of exclusivity agreements, and the need for precise drafting, it is not unheard of for the time taken to negotiate and draft the agreement to take a couple of weeks. The reality is that time spent on arguing and drafting the wording of an exclusivity agreement would be much better spent on completing the conveyancing work and trying to get the transaction across the line.
Bishop and Sewell has the well-earned reputation for being approachable and “going the extra mile” for its clients whilst providing both legal and practical advice. We provide a bespoke holistic approach for our clients, not merely limiting ourselves to just the matter at hand.
Charlie Davidson is a Solicitor in our Residential Property team.
If you are looking for assistance with regards to your property matter, or if you have any questions about lock-out agreements, please call 020 7631 4141 and ask for a member of the Property team or email firstname.lastname@example.org.
This article is intended as a general summary on the law – no reliance should be placed on it.Mark Chick and Chris Macartney appear in The Hot 100
Recognising the most influential people within the residential leasehold sector, News on the Block has once again published it’s highly anticipated Hot 100. The list pulls together a range of professionals from leasehold campaigners, Parliamentarians, trade and professional bodies, managing agents, lawyers, valuers and developers.
For more information, please contact email@example.com or call us on 020 7631 4141.
Boundary Disputes – Protocol or Court?
Concern has, over a number of years now been growing surrounding homeowners pursuing boundary disputes through the courts. The reasons for the concern centre on the ever increasing costs associated with court proceedings and that such costs very often outweigh the value of the property in dispute.
Whilst courts do increasingly encourage use of alternative forms of dispute resolution once litigation is underway between parties such as mediation, the best outcome for neighbours in dispute is often not to litigate at all.
The Government recognised these concerns by publishing in 2012, the Property Boundaries (Resolution of Disputes) Bill which sought to impose a compulsory determination of boundary disputes by a suitably qualified expert. The process removes the sometimes archaic but prescribed process of inferring a boundary out of the hands of lay homeowners and into those of a suitably qualified surveyor. Although the bill passed through the House of Lords in 2015, progress into law has been slow but its introduction does seem likely at some point in the future.
While legal practitioners recognise the merits of legislation in this area there are concerns over prescribing a single route to resolution of a boundary dispute. This is particularly so when property lawyers have the ability not only to interpret relevant documents according to established principles but are often best placed to navigate the way to a solution between neighbours who have become stuck on principles.
With this in mind, Falcon Chambers and Hogan Lovells International LLP have developed a protocol for the resolution of disputes where neighbours are in deadlock over the location of the boundary between their properties. The protocol is part of an increasingly wider drive by the courts to establish best practice for parties’ conduct prior to court involvement. The protocol consists of a step by step guide leading the parties to a potential resolution of the dispute. It is at this point voluntary but has the backing of the Property Litigation Association.
The protocol seeks to prioritise the early and timely exchange of documents and information between the parties, prioritise the early resolution of the dispute potentially by using alternative dispute resolution, and to reduce the legal costs associated with such disputes.
There is a guidance note accompanying the protocol to assist in its implementation. In addition, there is a supplementary guidance note detailing the role of the surveyor in the process.
The protocol can be found at www.propertyprotocols.co.uk
Stuart Merrison is a Senior Solicitor in our Dispute Resolution Team.
What is Comprehensive Sickness Insurance? 10 things you need to know
The UK government has this week announced that future EU nationals will no longer need to demonstrate comprehensive sickness insurance when applying to stay in the UK long term.
While many will be relieved, it remains unclear when the government plans to introduce this change and who it will affect.
In a statement summarising the government’s latest proposals for EU nationals, Prime Minister Theresa May said the requirement would be scrapped for those applying for “settled status” (which will replace “permanent residence” at some point).
The government has previously suggested it will start implementing new provisions for EU nationals next summer. However, this will be subject to the agreement of other EU member states.
Furthermore, even if agreement is reached on that point, it remains unclear how long it will take to implement the scheme, as well as whether this will affect those already living in the UK or only people moving to the country in the future.
Until that time, comprehensive sickness insurance unfortunately remains a part of UK and EU law, and so EU citizens will need to be aware of it and give it some thought if they are looking to secure their status in the UK.
The following people need comprehensive sickness insurance:-
The majority of EU citizens living in the UK assume that their nationality alone gives them the automatic right to reside in this country. However, the legal position is slightly more complicated. Technically, EU citizens are only living in the UK in accordance with the law if they fall into one of the following categories:-
People who have lived here for five years in any of the above categories or a combination of those categories acquire “permanent residence”. They then have the right to apply to the Home Office for a document certifying permanent residence or a permanent residence card, if they so wish (and indeed must do so if they want to apply for citizenship).
People who do not fall into any of the above groups will get by for many years by simply showing a passport or national identity card. However, if they want to apply for a document certifying permanent residence – or indeed a document confirming their right to be in the UK at the start of that period – they will only be able to do so if they fall within the above categories.
Comprehensive sickness insurance is simply the EU legal terminology for medical health insurance that is as wide ranging as possible.
The Home Office defines it as “any form of insurance that will cover the costs of the majority of medical treatment” in the UK. It should not contain significant exemptions but “may contain certain exemptions”.
Unfortunately, the Home Office gives no more real guidance than the information above. It will look at each case individually and make a decision based on the terms of the policy.
There will always be some exemptions, such as GP visits and emergency treatments, which are not covered by UK providers. However, my general advice to individuals taking out a new policy is to call around as many insurers as they can and take out the policy that contains the fewest exemptions.
There is no “Home Office approved” policy.
Individuals who hold a European Health Insurance Card (or its predecessor E111) issued by a state other than the UK can rely on that in the following circumstances :-
A small number of individuals may also be able to rely on any of the following forms: Form S1, Form E109, Form E121, Form S2, Form E112 or Form S3.
I cannot tell you how many times I have been asked this question! The short answer is no, I’m afraid.
The theory is that people who are working or self-employed in this country are paying national insurance contributions and so are entitled to rely on the NHS.
Students or those who are self-sufficient cannot count the NHS as comprehensive sickness insurance. This does not mean they cannot use the NHS, simply that they cannot rely on it for the purpose of obtaining documentation from the Home Office.
I am most commonly asked this question by women who have been homemakers supported by their British husband for many years.
Unfortunately, the fact you are married to a British citizen makes absolutely no difference if you fall into one of the categories requiring comprehensive sickness insurance, i.e. a student or self-sufficient.
If you want to apply for a document certifying permanent residence then you are applying based on your own nationality and your own status here, and not that of your British husband or wife, so they are irrelevant from the Home Office’s perspective.
There is another route open to those married to British citizens but it is a far more complex and expensive process, so is not one I would recommend unless absolutely essential.
The first thing is to make absolutely sure you have none of the above documents listed at question 5. You’d be surprised how often people forget all about the fact that they applied for an EHIC many years ago.
However, if you don’t have any of those documents and you want to apply for a Document certifying Permanent Residence or a Permanent Residence Card, then I am afraid there is nothing you can do.
Time and again people tell me they had never heard of the insurance requirement until recently but it is nothing new. It is only coming to light now due to the fact so many people are trying to secure their status by applying for documents in the wake of the referendum.
You can do nothing about past periods without insurance but if you are still living here in one of the categories for which it is required, then my strong advice is to take it out now. Once you have this insurance, you can use it to apply for a Registration Certificate, confirming your current right to reside.
None of us can see into the future and it may be that such a document becomes useless in time. However, if the government decides to maintain the current requirements then what it will do is demonstrate that you had the correct type of insurance throughout the period in question, making it much easier to apply for some type of permanent residence document in the future.
That said, even in a worst-case scenario I cannot imagine the Home Office will start deporting EU nationals who have lived in the UK for years, regardless of whether they have the insurance or not. However, it may be that those who don’t hold such documents are required to make a different application under a more expensive and document-heavy regime in the future.
The prime minister has now announced it will eventually abolish the need for comprehensive sickness insurance for EU nationals. However, several points must be borne in mind. Firstly, this is a unilateral announcement on the part of UK authorities, which remains subject to agreement from our EU partners, which is far from guaranteed given the current hostility in negotiations.
Secondly, even if the government is able to follow through on this promise, there is no clarity on timelines as yet. This provision may not come into force until after we have left the EU in March 2019. Any EU nationals looking to secure their status in the UK, particularly if they wish to apply for citizenship, may not wish to wait that long.
Thirdly, even if the government does away with comprehensive sickness insurance, there is no guarantee it won’t replace it with something else. It is worth bearing in mind that people from outside the EU who move to this country are currently subject to the Immigration Health Surcharge, an extra fee of £200 per year that must be paid at the same time as applying for a visa. For families, this can add thousands of pounds onto their visa costs.
However, having said this, it is undoubtedly true that there will be people who currently do need comprehensive sickness insurance to apply for permanent residence, and who simply do not qualify under the present law. There is no way for them to go back and change the past, and so for them, Mrs May’s latest announcement will be very welcome news indeed.
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 firstname.lastname@example.org.
Boundary and right of way disputes between neighbours
A person’s home is their castle and one which will be defended fearlessly. It therefore tends to follow that a homeowner will pretty much do anything to protect their home, and their rights to use and enjoy it, no matter what the cost.
For example, boundary or right of way disputes between neighbours relating to residential properties normally involve two parties who will want to “win” at any cost, even if the intrinsic size or value of the land being argued about is relatively small.
Unfortunately, this desire to protect what is perceived as yours, regardless of what rights someone else may allege, nearly always means that the parties to a boundary or right of way dispute have suffered a history of bad blood between them, with seemingly immovable battle lines being drawn in the sand from a very early stage and long before formal legal steps are finally taken. As such, cases almost inevitably end up at court, often when this isn’t necessary, simply because the parties involved are not prepared to agree the matter between themselves. Ultimately this will lead to a third party imposing a decision, generally being a trial judge, notwithstanding how costly and time consuming such an option is.
In an attempt to help neighbours resolve these types of dispute without the need to go to court, Parliament has put forward the Property Boundaries (Resolution Dispute) Bill 2016 (https://publications.parliament.uk/pa/bills/lbill/2016-2017/0019/17019en.pdf), now at Committee Stage in the House of Lords. This Bill is reflective of the well-established Party Wall Act 1996 etc., and proposes to put in place a process through which neighbours in dispute can seek resolution through a third party, without the need to become embroiled in expensive court proceedings.
Basics of the proposed new compulsory expert determination process are:
This proposed new process may allow parties to boundary, or right of way disputes, to quickly and cheaply obtain an independent decision as to who is right or wrong (so avoiding the need for issuing expensive court proceedings to get the very same thing) and almost sounds too good to be true.
However, there do appear to be some potential limitations with the proposed process such as the experience of the surveyor(s) and their understanding of relevant case-law relating to boundary or right of way disputes. Also, will surveyor(s), as they are trained to do, focus their primary attention on the lines on plans and measurements on the ground, to the exclusion of potentially relevant witness evidence from those actually involved in the dispute?
There is also the risk that if a party decides to appeal the Award to the High Court, it could end up being more costly than seeking to resolve the dispute under the current regime because the parties will already have incurred the costs of following the new compulsory process.
In any event, if anyone becomes involved in a boundary or right of way dispute with a neighbour, the very first thing that they should do is to instruct a good firm of solicitors to assist and advise them. Obtaining objective legal advice as soon as possible can sometimes help a party to avoid wasting time and money on a dispute that generally isn’t worth either.
Also, and once solicitors are involved, they can help to make sure that before doing anything, a party to a boundary or right of way dispute with a neighbour properly considers all of their options for seeking to resolve their dispute.
It is also unclear, at the time of writing, how the proposed process will impact on or interact with the current trend towards using mediation to resolve boundary or right of way disputes but whether you are King, Queen or Court Jester, you will want to consider all options available to you for protecting your castle.
Lee Stafford, a Partner in our Litigation Team.
When does bad conduct matter?
Perhaps unsurprisingly many people contemplating divorce are upset in some measure by the behaviour of their spouse or civil partner. They may shy away from mentioning, let alone complaining about it, or be so outraged that talking about that behaviour is uppermost in their minds; obviously the spectrum is wide.
If none of the other grounds for divorce/dissolution exist—and usually these days adultery is the only other contender – Family lawyers then generally find themselves compiling 3 complaints that a divorcing spouse will volunteer, so as to meet the (admittedly low) bar for these purposes of what is known as a ‘mild behaviour petition’ .
With one recent well publicised exception ( the case of Mrs Owens, where the particulars of her husband’s behaviour were deemed by the court to be just not strong enough, when unfortunately for her he decided to defend ) such mild behaviour petitions generally are uncontested and go through ‘on the nod.’ The solicitor therefore has to gauge what needs to be alleged to get past the judge considering it in the course of the undefended postal procedure without going in too hard and upsetting the respondent spouse in the next step which is to sort out the finances.
At the other end of that spectrum however, the behaviour may be so awful or egregious that the injured spouse feels strongly it has to be said. Some take the view that even so, it need not be spelt out – but whilst ‘no fault’ divorce remains barely on any governmental reform agenda, it is a matter of judgment as to how specifically to allege what the badly behaved spouse has done.
Of course, one person’s truly terrible behaviour is another’s diurnal acceptance and the courts have long since turned away wherever possible from giving spouses an opportunity to complain about each other in any circumstance where they have to investigate and take a final view on who did what. The fact which is most difficult for separating couples to grasp at the outset is that whilst we have fault-based divorce, that fault is not reflected in the financial sort out. Indeed, it is long established law that for marital conduct to play any part ( what would otherwise be a judicial distribution of assets or income) it has to be wholly exceptional and such that it has in effect worsened the financial position of the recipient spouse, that is whether by infliction of a debilitating injury (stabbing, shooting etc.) or a major / fraudulent removal of assets beyond the jurisdiction or reach of the courts.
Nonetheless, there are all too many cases where one spouse is in fear of ongoing violence from the other such that he—usually she—may need the protection of the courts by way of injunction or order that the abuser leave the matrimonial home. In these instances, it does more than look odd if the petition initiating the proceedings is mild, limp and without reference to past violence or psychological abuse. Then the conduct can be spelt out and referred to in the concomitant application to the court for relief and the court is put on notice, as it were, of how things have been and why the marriage has broken down.
Similar considerations may apply where there are serious allegations of ongoing abuse of children which are clearly going to lead to an application within the suit for divorce for a Child Arrangements Order specifying such aspects as where a child is to live and which parent he or she will see when and where.
These days judges are more likely to take seriously any allegation of domestic abuse and require it to be investigated and indeed the definition has widened considerably from ‘simple’ violence to controlling, coercive or threatening behaviour and victims have become ‘survivors’ who may be expected to speak out.
So back to the allegations of bad conduct … if truly bad it is often helpful to hear them all and render them succinctly in a petition where they may well be relevant or instructive to those sitting in judgment on issues arising, whether financial or domestic. Those spouses on the receiving end will in any event have the opportunity to answer the assertions if pursued by the accuser in the children or monetary aspects of the divorce. Allegations of illegal drug use or money laundering or excessive alcohol consumption or vitriolic name calling come to mind but it is in the end all a matter of judgment, rather than primarily a cathartic experience for the accuser who may be speaking out for the first time in years.
So much for the petition and grounds for divorce.
What is more likely to feature in divorce and dissolution these days is what has become known as litigation conduct. That is where one party behaves so outrageously within the proceedings that it renders a fair outcome impossible or difficult or majorly increases costs unnecessarily for the other or delays, confounds and obstructs the suit or procedure as a whole.
Examples are legion, from one person secreting funds from view or entering into fake transactions or purporting to dispose of a business or chattel (to be reclaimed later from a friend), plain lying about interests or directorships, shares or foreign accounts, to failing to turn up at court or comply with orders … and so on. Such tactics can range from low grade (funds lodged with another family member) to mega deceits involving dubious offshore trusts, but the general intent is to obstruct or delay justice and raise the cost of it for the other spouse.
So what happens in such cases?
Again, the courts are not keen to hear every complaint and punish every act of wrongdoing, but if the litigation conduct is bad enough, it will order that the complainant spouse has to make a full statement setting out all such acts and then for the perpetrator to do one in response and then the court will hear the matter with a view either to adapting its potential financial order to meet the case — or more likely in cases of litigation misconduct – to make the offending party pay some of the costs incurred as a result , in an attempt to even up the damage.
This has to be a last resort and where one spouse is showing an inclination for such conduct it is better to draw it to the attention of the court as soon as possible and seek an order for costs to ‘discourage’ further attempts to thwart fair distribution by the judicial process.
Needless to say, this can be hard for litigants in person already struggling with an unfamiliar and rule-bound procedure.
Eileen Pembridge is a Consultant in our Family team.
If you require legal advice in relation to a divorce or family relationship matters more widely, please contact our team of expert matrimonial solicitors on 020 7631 4141.Breaking news: Regulation of managing agents
Sajid Javid has today announced a consultation on the regulation of managing agents. Further details appear at:
This is not the first time that government has looked at this issue, but it is a natural follow on from the White Paper on Housing ‘fixing our broken housing market’ and the recent consultation on ‘tackling abuses in the leasehold sector’
This announcement is big news in the property management industry. ARMA (the Association of Residential Managing Agents) has had a voluntary regulatory scheme, ARMA-Q which its members have signed up to, but this is by no means covers all of the industry.
The issue in property management is that it is currently an unregulated sector and given the millions of pounds of flat owners money that is held by managers, can this really be right in the 21st Century?
Mark Chick, Head of Landlord & Tenant at Bishop & Sewell LLP commented as follows:
‘It is good to see that government has moved to consult on the regulation of managing agents. This is something that has done the rounds over the years, but in order to sort the ‘good from the bad’ consumers really should have some visible means of seeking redress and knowing that the people holding onto their money are regulated and qualified to manage their building properly.
I would urge all interested parties, freeholders, leaseholders and managers to respond to the consultation (a link to which appears below), during the 6 week consultation process.’
If you have a query concerning leasehold property then please contact our expert team by emailing email@example.com.