And It All Started With A Break In.

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The Law Commission has recently begun consulting about a legal framework for electronic signatures. If this becomes law it will be the last stage in the complete digitisation of legal documents, which in the case of land and title in England and Wales, started on the 23rd November 1998.

The rather inauspicious catalyst was a burglary, when vandals broke into a storage warehouse used by the Bradford & Bingley Building Society, crashed a forklift truck and started a fire. The building society lost thousands of packets of deeds and during the process of reconstructing their titles, which required an application to the Land Registry for each missing title, the society persuaded the Land Registry not to issue them with the traditional Charge Certificates, but to “store” the newly created registered titles on the Land Registry computer.

This arrangement created the first virtual title record and, motivated by the huge savings in storage costs, other lenders quickly followed suit “dematerialising” their existing and subsequently acquired registered titles. This practice had no basis in law and was “an arrangement” between the lenders and the Land Registry but it signalled the birth of “dematerialised” titles, a process later enshrined in law by the Land Registration Act of 2002.

Although the legal profession has (with diminishing numbers of exceptions) embraced both electronic communication and the use of electronic documentation, the stumbling block to full digitisation, at least for those transactions which must by law be in writing or by deed, has for some time been the need to produce a final paper document for the parties to sign. For those property transactions for which registration at the Land Registry is also required, there is a further ironic twist. The Land Registry does not want the paper document. It only wants an electronic copy and its staff will scan, and just to make its point, destroy every paper document it receives. Inevitably, but one hopes only occasionally, human error will prevail and the scan/shred sequence is reversed with unfortunate and sometimes costly consequences.

Digital documents and communication increases dramatically the speed at which transactions can be concluded; there are, as well as the occasional destruction of historic deeds by the Land Registry, significant and increasingly costly negatives. For property lawyers and those not entirely in agreement with their neighbours, there is the loss of important evidence about boundaries, rights and covenants which do not appear on the registered titles and for all of us there is the issue of internet security and fraud, which was not a consideration when we all used paper.

To be continued.

Rhodri Rees

Partner

Property and Commercial

Living Wills, Advanced Decisions, Capacity and Care

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There is still a grey area in the UK with regards to Living Wills. These are non-binding documents and a person can put whatever they want in them. They can detail what care they would want if they were to become mentally incapable and can also include religious beliefs, what type of personal care they would want, and the people they would want to look after them.

Quite often, a copy of a Living Will is placed with an ordinary Will and also with the person’s GP. If there is a Living Will in place then any medical team should take it into account even though it is not legally binding.

An alternative would be to make a document called an “Advanced Decision” or an “Advanced Directive”. These documents must be written and signed and witnessed. They can contain instructions to refuse treatment. When making such a document, the person needs to be fully compos mentis and clear as to what they wish to achieve from the document. For example, it may say that the person would wish to refuse pain relief, interventions, needles etc. However, one should bear in mind that specific treatment cannot be requested and it is not possible to override a medical professional’s opinion.

Under Section 24-26 of the Mental Capacity Act 2005, Advanced Decisions can only refuse treatment. One of the criteria provides that no illegal actions, for example attempted or assisted suicide, can be included in the document. Understandably, it is illegal to assist anybody with suicide and if a person is believed to have encouraged or assisted another, then it is a crime and subject to 14 years imprisonment. Prosecution is more likely if a person is under the age of 18 years or if the assister has been paid.

An Advanced Care Plan is a central record of documents usually put into place by a hospital or care home. These are often put in place for a person who is terminally ill.

Palliative Care is for quality of life and life threatening illnesses. Again, these Plans can be put into place for end of life care or if a person is likely to die within 12 months of being diagnosed.

Whichever Plan is put into place, care should be taken when writing them. For example, a person may say that if they are diagnosed with Cancer he/she does not want to be treated. At the time of writing the Plan the person may not have Cancer but, say, in 5 years time, he/she has developed Cancer and has since married and has children, then these are totally different circumstances and he/she may not have the mental capacity to change the original Plan. Therefore, Living Wills or Advanced Decisions should be reviewed every few years to reflect circumstances and medical views.

A Lasting Power of Attorney for Health and Welfare is more flexible for planning and may be a better way of expressing wishes should a person become mentally incapable although, again, care must be taken as to the instructions contained in the document.

If a person lacks mental capacity and there is no Lasting Power of Attorney for Health and Welfare in place, then it may be possible to approach the Court of Protection for a Deputyship Order. However, the Court of Protection are reluctant to grant these types of Orders and may only do so when a series of decisions need to be made and it is the only way they can be dealt with.

For legal advice in completing Lasting Powers of Attorney for Health and Welfare or for Deputyship Orders, please contact one of the Private Client Department team at Adams Harrison.

Landlord and Tenant Update; Assured Shorthold Tenancies

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Following on from my previous article Changes to Section 21 Notice which was implemented by the Deregulation Act.  These changes first came into effect on 1st October 2015 but only for tenancies which started or were renewed for new fixed terms after that date.  Therefore we have been in a transition period for tenancies which pre-dated 1st October 2015.  This transition period came to an end on 1st October 2018 and from that date the changes made by the Act will apply to all Assured Shorthold Tenancies (ASTs). However, not all the changes will apply especially to tenancies which pre-dated 1st October 2015.

Section 39 which requires the Landlord to serve the how to rent checklist at the start of the tenancy does not apply to tenancies pre 1st October 2015  according to Section 41. One area that requires clarification is whether pre 1st October 2015 tenancies require the landlord to serve the the tenant with the prescribed requirements of a Energy Performance Certificate and Gas Safety Certificate.  This is the provision that has caused landlords the most difficulty since the Deregulation Act came into force.  The Deregulation Act states that this provision will apply to any AST in existence at the time from 1st October 2018. However, the 2015 Regulations which specify the prescribed requirements expressly state that they only apply to ASTs granted on or after 1st October 2015 and not to statutory periodic tenancies that came into being on or after 1st October 2015 at the end of an AST granted before that date. It therefore seems that until new regulations are passed to clarify this position, there are no prescribed requirements in existence applicable to old tenancies.

However In a recent appeal from a county court decision, in the case of Caridon Property Ltd v Monty Shooltz, it has been held that the previous gas safety record of a property will need to be served on a new tenant before they commence the tenancy, otherwise any subsequent section 21 notice served against them will be invalid. It remains to be seen whether this case will be appealed further but the decision is likely to have significant ramification on landlords until this matter is decided further or changes are made to the current legislation.

Although changes have been made to assist Landlords in making the section 21 procedure more straightforward, as can be seen it still remains a difficult area to get right in serving a valid section 21 notice.  If you are unsure or require further advice on these changes and how they can affect you please contact Anton Bilinski who is able to guide you through these changes and act for you when a landlord or tenant dispute arises.

Make a Will or Review your Existing Will

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A Will is a legal document confirming how you wish your assets (your estate) to be dealt with following death.

Every adult who owns assets should make a Will rather than rely on the Intestacy Rules (statutory provisions) where there is no Will.

What is worse than not making a Will? Leaving an out of date or incorrectly drawn up Will.

Even if you have already made a Will, this ought to be reviewed periodically and in particular if you or your family’s circumstances have changed and following new legislation.

Have you married since making your Will? Marriage automatically revokes a Will made prior to the marriage unless it has been made in contemplation of, but not conditional upon, the marriage taking place.

Have you separated or divorced since your Will was made? A review would be advisable.

Have you had children since you made your last Will? Or perhaps you have subsequently become involved in a business which should be catered for separately in your Will.

Do you need to consider the joint ownership of any freehold or leasehold properties? Do you own as joint tenants or tenants in common and what is the difference?

Would a review of your Will ensure your property could be safeguarded against possible future nursing home fees of a surviving spouse?

Furthermore, there are Inheritance Tax considerations insofar as there is a new Residence Nil Rate Band that may be applicable to your estate and might require a review of the terms of your existing Will to fully utilise this new exemption.

If you require advice in relation to making a Will or reviewing the terms of your Will, contact a member of Adams Harrison’s Private Client Department for expert and professional advice.

 

Melanie Pratlett

Partner

Head of Private Client Department

Law Commission Proposes Major Modifications to the Enfranchisement Rules for Leasehold Houses

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In December of 2017 the Government announced it would prohibit nearly all future sales of new build leasehold houses and would be proposing modifications to the existing rules applicable to leasehold properties to circumvent what it has referred to as “feudal practices” and “unnecessary leaseholds, unjustifiable charges and onerous ground rent terms.”

Although for flats leasehold ownership is often practical, the Government sees little reason, other than additional profits for developers, for houses to be sold on a leasehold basis.  A ban on leasehold house sales will only protect future purchasers of newly built properties and would not present any respite for the millions of people in the country who already own leasehold houses.

To assist existing leasehold homeowners the Government has asked the Law Commission to prioritize modifications to the current enfranchisement scheme.  Leasehold property owners have “enfranchisement rights” which include a right to purchase the freehold interest in a property or to extend the leasehold term.  However, at present, the rules relating to enfranchisement are complex, technical and burdensome.

The Law Commission has published a summary of proposed modifications to the leasehold enfranchisement scheme relating to leasehold houses.  The modifications proposed are aimed at simplifying the regime to make enfranchisement more accessible for leasehold property owners and include recommendations for the removal of unnecessary technical hurdles, modifications to the eligibility rules, and simplifying the enfranchisement procedure.  Under the current scheme a leasehold owner must have owned the property for at least two years before the rights can be exercised, however, the proposed changes would do away with this time requirement to allow leasehold house owners to seek immediate relief.

At this stage the proposed modifications are just that, proposals, however the Law Commission has advised that an in depth Consultation Paper will be published this month and it is our hope that the proposals will lead to substantive changes in the enfranchisement regime which will make the enfranchisement process simpler and less expensive for our clients.

If you have any questions please contact our Conveyancing team.

Changes To Section 21 Notices Coming 1 October 2018

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On 1 October 2015, big changes were made to section 21 of the Housing Act 1988 for tenancies in England.

These changes were brought in by the Deregulation Act 2015 for tenancies that came into effect or were renewed on or after the 1st October 2015. The notable provisions were as follows:

  • The introduction of a new section 21 Notice (form 6A).
  • Compliance with the Tenancy Deposit Scheme (“TDS”).
  • The Requirement to have given the tenant a gas safety certificate before the tenancy commences.
  • The requirement to have given the tenant an EPC before the tenancy commences.
  • The requirement to have given the tenant the ‘How to Rent Checklist’ before the tenancy commences.
  • Limiting the time to enforce a section 21 notice to six months after the date of service.
  • The removal of the requirement to expire a section 21 notice under a periodic assured shorthold tenancy ‘after the end of a period of the tenancy’.

From 1 October 2018 these rules will apply to ALL tenancies. This includes tenancies granted before October 2015.

The only exception is the requirement to provide the How to Rent Guide (because this did not exist before October 2015).

These requirements make it more onerous for landlord to evict tenants and make the service of a section 21 notice even more important than ever before.

If you require further advice on these changes and how they can effect you please contact Anton Bilinski who is able to guide you through these changes and act for you when a landlord or tenant dispute arises.

Boundary Disputes

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The question of where exactly the edge of your property ends and where the adjoining property starts is one that frequently becomes an area that our property dispute department is asked to assist with.

Establishing the precise location of a boundary is not always as easy as it would first seem. It is a common misconception that the title plan for your property, as registered with the Land Registry is the definitive guide to the boundary location. However, registered title filed plans usually show general boundaries only and not an exact boundary line.

Therefore, if a dispute arises it is necessary to look at a number of factors in an attempt to establish the boundary. The case of Acco Properties Ltd v Severn in 2011 set out the principles to be applied to boundary disputes:-

  • Ordnance Survey (OS) plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary.
  • The starting point is the wording of the conveyance and the conveyance plan or, if the plan is stated to be definitive, guided by the plan.
  • If the conveyance is not clear then extrinsic evidence may be considered, for example, features which existed at the date of the conveyance.
  • Evidence of the parties’ subsequent conduct may be relevant and admissible if it reveals what the parties intended.
  • Evidence of features after the date of the conveyance may be relevant.
  • The boundary needs to be clear rather than “fuzzy at the edges”.
  • Even if the boundary is clear from the conveyance other evidence may show a different boundary as a result of adverse possession.
  • An informal boundary agreement need not be in writing as it demarcates an unclear boundary rather than operating to transfer an interest in land.
  • Boundary agreements are usually oral, but can be inferred or implied.
  • The court should have regard to what a reasonable layman would think that he was buying.

Litigation can be complex, uncertain and expensive. Therefore, various Alternative Dispute Resolution measures are the preferred option for many to resolve any dispute. This includes mediation.

Also, a recent, new protocol for use in boundary disputes has been developed. This sets out a suggested procedure that the parties to a dispute can agree to adhere to in an effort to resolving matters amicably.

The main aim of the protocol is to agree the instruction of a surveyor on a joint basis to provide an expert opinion on the boundary. We can assist with implementing the protocol and corresponding with the other party.

We also advise and assist clients when they decide to participate in mediation so we can be on hand to provide legal advice, something a mediator does not do. If you have any boundary dispute issues or question please contact us.

 

What Is A Deed Of Variation?

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You may be surprised to learn that it is possible to alter someone’s Will after their death, providing that any beneficiaries left worse off by the changes agree. The changes can be made by what is known as a deed of variation.

If someone dies intestate (without a Will) then the intestacy rules govern who inherits. A deed of variation can also be used to change the inheritance in the same way as if there was a Will.

There are various reasons why it may be a sensible idea to change a Will or redirect inheritance under the intestacy rules. These include:-

  • to reduce the amount of Inheritance tax (IHT) or Capital Gains Tax (CGT) payable
  • to provide for someone who was left out of the Will
  • to move the deceased’s assets into a Trust
  • to clear up any uncertainty over the Will

Deeds of variation are a useful inheritance tax (IHT) planning tool because any inheritance from an estate that is redirected to others will be treated as if the deceased made the gift. This means that the person allowing the redirection does not have to survive the gift by seven years in order for it to fall outside of their own estate and therefore not be subject to IHT. A common example would be a child who is to inherit from their parent’s estate. If the child is already financially sound then they may not require the inheritance which would only increase the size of their estate, giving rise to further IHT charges on their own death. In this situation, the child may wish to redirect the inheritance to their own children who could benefit from the money.

A deed of variation could also be used to alter the division of a Will to benefit a charity. Making such a change could potentially attract a lower 36% rate of IHT of the estate that is chargeable which would reduce the IHT bill.

It is important to know that a deed of variation must be made within two years of the date of death. Furthermore, once a deed of variation is signed it cannot be revoked so it is paramount that careful consideration is taken before entering into a deed of variation.

For more information, please contact our Private Client department for expert and professional advice regarding wills and probate issues.

Hayley Ford, Private Client Solicitor

Protecting Victims Of Domestic Abuse In The Family Court

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In the past few years there has been much debate over the treatment of victims of domestic abuse in Court proceedings. The Criminal Courts have made important changes to ensure the victims of abuse are protected during criminal proceedings but the Family Courts have not implemented similar changes.

At present, if a perpetrator of abuse does not instruct a lawyer to represent them in Court proceedings then they will go before the Court in person. If the case progresses to cross examination then there is a risk that the perpetrator of the alleged abuse is able to question and potentially interrogate their victim about the alleged abuse. A Judge would do their utmost to limit the occasions when a perpetrator of the abuse can question their victim and will closely monitor the line of questioning, however the reality is that there is a genuine risk that the victim may be further abused under the cloak of Court proceedings.

In 2016 Women’s Aid published a report that dealt with the damaging effect this type of cross examination can have on a victim. It reported that many victims felt that their welfare and safety was being jeopardised by being interrogated about the abuse by the perpetrator. Some felt that the perpetrator of the abuse was being allowed to treat them in a degrading manner during cross examination and that further abuse was being allowed to continue through the Family Court process.

The report called for the Government and all Family Courts to make the court process safer for victims of domestic abuse. The report was part of the Child First Campaign which sought to ensure that the safety of children remains at the centre of all decisions made by Family courts.

Following this report, Women’s Aid were able to secure a commitment from the Government to create a new law banning alleged perpetrators of abuse from being able to cross-examine their victims in Family court proceedings. In February 2017 the Prisons and Court Bill provided for amendments to be made to current legislation to ensure that anyone with a current conviction for a domestic violence offence was prevented from cross examining their victim during Family court proceedings.

The Commons Public Bill Committee were scheduled to consider the Bill in April 2017 however following the announcement of the snap General Election on the 18th April 2017, the Bill was not able to progress and fell when the Parliament dissolved on the 3rd May 2017.

Despite this initial set back, the Queen’s Speech delivered on the 21st June 2017 made a commitment to introduce a Court’s Bill to reform the court systems and address the treatment of domestic violence victims during Court proceedings.

Following a consultation period from March to May 2018, Parliament is to debate the issue of the progress on protecting victims of domestic abuse on the 18th July at Westminster Hall.

Ahead of the debate Penny Scott, the Chair of the Family Law Committee at The Law Society, Margaret Heathcote, the National Chair of Resolution and Katie Ghose, the Chief Executive of Women’s Aid wrote a joint letter to the Lord Chancellor and Secretary of State for Justice, David Gauke MP calling for the Government urgently to ban cross examination of victims by their abusers in Family courts. The letter highlighted the fact that the perpetrator of the abuse interrogating their victim is in itself abusive.

It is with great hope that the Government will now take immediate action in respect of this long running debate to ensure that in the future, victims of domestic abuse will not have to experience further abuse in Family Court proceeding designed to protect them.

Equal Pay For Equal Work

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As long as 45 years ago measures were first introduced in the UK to address the difference in pay between men and women carrying out the same or similar work. It is considered, however that only limited progress has been made in bridging the gender pay gap.

Up until the end of September 2014 the framework for policing gender pay issues was contained in the Equality Act 2010 which draws together the protection from the previous Equal Pay Act 1970 and the Sex Discrimination Act 1975.
A scheme of voluntary reporting was put in place for employers to publicise their pay but this appears to have been insufficient in order to promote pay transparency and attempting to achieve equal pay for equal work regardless of gender.

Since October 2014 there has been a new sanction for employers in place that Employment Tribunals can order if employers are found to have breached equal pay legislation. This sanction requires employers to carry out an equal pay audit and to make public the results.

Average pay for men is greater than that for women. The Office for National Statistics revealed that in 2016 the gap was 9.4% for full time employees (the lowest since records began in 1997, when the gender pay gap was 27.5%). The gap for all employees was 18.1%. This is because a higher proportion of women work part-time (41%, compared to only 11% of men), and part-time workers (both men and women) earn less per hour on average than their full-time counterparts.

The General Pay Gap Regulations came into force on 6 April 2017 and apply to large private and voluntary sector employers. This is defined as employers with 250 or more employees on 5th April each year.

Employers must publish their gender pay gap information on their own website and retain it on line for at least 3 years. The information also has to be uploaded to a government website.

If you consider you are being paid less than a colleague of the opposite sex in your work place when you are undertaking equal work you may have a claim under the Equality Act 2010. The work, when being compared, must fall into at least one of the following three categories – “like work”, “work rated as equivalent” and “work of equal value”.

We can advise you as to whether you are likely to have a successful equal pay case. If you are successful the Tribunal or court can make a declaration of your rights and/or require arrears to be paid. A declaration forces your employer to pay the same as your opposite sex counter part. Arrears can be paid for a period up to six years before your claim.