BUYING PROPERTY SUBJECT TO A TENANCY (and being pressed to exchange contracts!)

If you buy property with a tenant or tenants in occupation you will buy it subject to the existing tenancy – not with vacant possession. If you do not wish to take on the existing tenant you will have to ensure that they have been given Notice to Quit (and that this Notice is in the specified legal form).

It is always prudent to wait until a tenant has vacated a property before exchanging contracts. However, if the selling agents or the seller are pushing you for an exchange of contracts you may have to do so before the tenant leaves. In this event you should endeavour to ensure that the purchase contract makes provision for vacant possession on completion.

If the seller has served Notice to Quit on the tenant but they fail to leave on the due date, then the seller will be in breach of contract for failing to give vacant possession on completion. However, he/she might not want to risk such a scenario, and so although the agents or seller might be pushing for an exchange, they would be better waiting for the tenant to move out before exchanging contracts so that they are sure the vacant possession required can be given on completion.

The above situation can and will arise in many cases and it is vital that you obtain the correct legal advice. For more information please contact Simon Brooks on 01276 681217 or e-mail simon.brooks@brooks-partners.co.uk or Salesha Jackson on 01276 681217 or salesha.jackson@brooks-partners.co.uk .

LAW SOCIETY: “WILL WRITERS SHOULD BE QUALIFIED” by Shirah Real

The Law Society has launched a campaign in an attempt to ensure Will writers undertake examinations and obtain recognised qualifications before being allowed to offer their services to consumers.

The campaign will include lobbying the Lord Chancellor and the Legal Services Board for support in order to warn the public about the potential risks, financial and otherwise, of using unqualified Will writers. The Law Society are also asking for a parliamentary Motion on this issue as well as providing online campaign tools to help solicitors and the public share their concerns with their Member of Parliament.

Linda Lee, the Law Society President, said: ‘The fact that most problems are detected after the individual has died is a strong argument for establishing a robust regulatory framework. Many of those calling themselves Will writers may have purchased a franchise to do so, and are free to prepare Wills without any training or insurance protection. Five years ago, the then government called for voluntary regulation of Will writers, but since then we have only seen more and more consumer detriment as a result of there being no regulation. The system must be changed to protect the public”.

Although many consumers and solicitors alike will agree with this sentiment they may also feel that it is “too little, too late”.

If you have had a Will prepared and would like a free of charge review please contact Shirah Real on 01276 681217 or e-mail: shirah.real@brooks-partners.co.uk or Jackie Stewart at jackie@brooks-partners.co.uk

Are you a Victim of Professional Negligence? by Deborah Prance

This area of law covers disputes concerning the work of a professionally qualified person such as a surveyor or valuer, a doctor or surgeon, an accountant, financial adviser, barrister or lawyer, to name but a few examples.

The law of negligence exists to enable people to sue for damages in respect of their losses arising from an error or breach of an individual’s legal duty to take care for whatever reason. Professional people, in undertaking work or providing advice, are expected by law to show the average amount of competence of someone within that profession. If they fall short and this causes a loss to the person for whom they undertook the work, that person is entitled to sue for damages in respect of their loss.

The Civil Procedure Rules incorporate a Pre-action Protocol which needs to be followed in respect of any Professional Negligence Claim (except where it concerns an architect, engineer of quantity surveyor in which case the Pre-action Protocol in relation to Construction and Engineering disputes should be followed). The aim of this, as with all Pre-action Protocols, is to facilitate a settlement of the claim without the need for court proceedings. This provides for a detailed Letter of Claim setting out the facts on which the claim is based, the allegations of negligence and an estimate of the financial loss suffered. The letter requests that the matter is referred to the professional’s insurers. The professional/his insurers will then have three months to investigate the claim and indicate whether liability will be admitted. If liability is not admitted, consideration should be given to alternative dispute resolution.

Deborah Prance, head of our Dispute Resolution Department, has many years’ experience dealing with these matters and is able to provide expert advice in solving Professional Negligence claims. If you consider that you might have a claim against a professional, please contact Deborah Prance.



EMPLOYMENT LAW—YOU NEED TO KEEP UP TO DATE

By Kate Middleton, Employment Solicitor

As an employer you need to keep up to date to ensure you are ready for the year ahead. Every new year brings new regulations and legislation that all employers have to be aware of. The six big ones this year are:


1. Abolition of the default retirement age

The DRA of 65 will be completely abolished on 1st October 2011 with transitional arrangements coming into force from 6 April 2011. There will be no such thing as a normal age of retirement after October so your contract may need to be amended.

2. Changes to maternity and paternity leave provisions

In April there will be changes to maternity and paternity leave provisions that will entitle some employees to take up to 6 months leave.

3. Right to request flexible working

The right to request flexible working will be extended to parents of children under the age of 18 on 6 April 2011. It currently applies to parents of children under the age of 17, or 18 if the child is disabled.

4. Equal treatment for agency workers

From 1 October 2011, agency workers will be entitled to equal treatment on basic employment conditions, such as pay and holidays after completing a 12 week qualifying period in any given job..

5. Equality Act 2010

From April 2011 employers will be able to treat individuals with a protected characteristic more favourably during recruitment and promotion processes when faced with two or more candidates of equal merit.

6. Bribery Act 2010: corporate offence introduced

In April 2011, a corporate offence of failing to prevent bribery by people working on behalf of the business will be introduced under the Bribery Act 2010.

Christmas Boxes for Children

In the lead up to Christmas our Wills and Probate Solicitor, Shirah Real, asked if anyone would like to take part in providing shoe boxes for children for Christmas, something she has done many times before. Everyone was happy to make donations of one sort or another and Shirah, Carol, Stephanie and Vickie spent a number of very happy lunch hours preparing the boxes and shopping for items to fill them with.


The boxes are labelled for either a boy or girl and an indication of age group and are then distributed by the charity through Europe and Africa, wherever they are most needed.

The members of staff thoroughly enjoyed preparing and filling the boxes, we hope the children they are given to enjoy them as well!

Pre-Nuptial Agreements- a change in the law?

Much has been made in the press of the long-awaited decision of the Supreme Court in the divorce case of Radmacher v Granatino which was delivered recently. The Supreme Court decided by a majority of 8 – 1 that the Pre-Nuptial Agreement made between a German multi-millionairess and her French husband prior to their marriage in 1998 should be upheld. The Agreement was expressed to be subject to German law but the parties were living in England by the time of their divorce, hence the divorce took place here. The parties separated in 2006. In England, unlike some other European states, only English law is ever applied. A couple lives within the jurisdiction of the English court and the court applies English law; not the law of the country in which the Agreement was made, nor the law of the parties’ nationalities.

It remains the case that Pre-Nuptial Agreements are not automatically binding in law in England and Wales. Such an Agreement is only one factor for the courts to take into account when considering the factors set out in section 25 of the Matrimonial Causes Act 1973 which govern the financial settlement that a court will order. The overall aim is to achieve fairness which, for most parties, means meeting the parties’ “reasonable needs”. If a Pre-Nuptial Agreement is considered fair by a court, given the circumstances of the parties on their divorce, it will be upheld. If it is not, and needs take precedence, then it may still be taken into account in determining the final outcome even if the arrangement is not fully applied.

In this divorce case, it was considered that it was fair to hold the couple to the Agreement even though Mr Granatino had not had independent legal advice, which we would always recommend. The court commented that Mr Granatino was extremely able and his own needs would in large measure be indirectly met from the generous relief given to cater for the needs of his two daughters until the younger reaches the age of 22. Fairness did not entitle him to a portion of his wife's wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her.

It has to be remembered that this case is far from typical and in many cases, the court would not consider it fair for the parties to be bound by a Pre-Nuptial Agreement, particularly if their circumstances had substantially changed after, say, a long marriage with children. In more typical cases of this type, needs would dictate that one party should receive more generous financial provision than might provided by the Pre-Nuptial Agreement. The Law Commission is currently considering whether to make Pre-Nuptial Agreements automatically binding. The challenge will be to ensure that proper consideration is given to ensuring that less wealthy parties are not adversely affected by any change in the law.

For more information on this subject contact Deborah Prance.

D I Y Divorce - Who needs a solicitor?

There is a plethora of guidance on the web on how to do your own divorce, including packages which provide the forms for a relatively low fee. The problem with these websites is that they are alright for couples who have had a very short marriage, have had no children and who have no assets. But these couples are in the relative minority. However, even these couples should give consideration, and in may cases seek advice on the impact of divorce on for, example, welfare benefits and immigration.

In most cases, a relationship breakdown can have profound consequences on the financial status of the parties which needs to be considered, preferably before concluding the divorce. By applying for decree absolute prematurely, the petitioner can terminate their entitlement to benefit under their spouse’s pension.

Consideration also needs to be given to what should happen to jointly owned property. It is rarely advantageous for the matrimonial home to continue to be held in joint names after the end of the marriage. Thought should also be given to making another Will.

As well as the above consequences, of which in some cases the parties may be wholly unaware, there are the more obvious issues such as the arrangements for any children including residence and contact. Unfortunately, whilst in many cases the parties are able to resolve these between themselves, in many others professional assistance is required whether from a mediator or a solicitor.

At Brooks & Partners, we have many years experience of dealing with all these issues. Just by taking advantage of our initial half hour free appointment many of them can be highlighted. We recommend that anyone reading this article who may be going through a relationship breakdown of any kind arranges an initial appointment with Deborah Prance by calling 01276 681217 or emailing her at deborah@brooks-partners.co.uk

Lasting Powers of Attorney

Whilst the press often emphasise the importance of preparing Wills which determine where your assets pass when you die, relatively little is heard about Lasting Powers of Attorney, yet they are just as important as Wills.

Lasting Powers of Attorney enable you to determine who you would like to deal with your property and finances and also your health and welfare issues in the event that you become mentally incompetent or physically unable to manage your own affairs.

Lasting Powers of Attorney (LPA) replaced Enduring Powers of Attorney (EPA) in October 2007. This means that you can no longer create an EPA but people with EPAs prepared prior to October 2007 need not worry as their documents are still legally valid.

Whilst EPAs only give control over finances and property, LPAs go further in allowing your nominated attorney to take responsibility for your health and welfare decisions. Therefore whilst the LPA invites us to consider some uncomfortable choices, it gives us an opportunity to take control of our future in a way that has not been possible before.

If you haven’t prepared either an EPA or an LPA and you become mentally incapable, then your next of kin does not have an automatic right to manage your affairs for you. To be given such a right your next of kin must apply to the Court of Protection to become your “Deputy.” A Deputyship application can be can be a longwinded, costly and stressful process so it is advisable not to wait until you are beginning to lose the ability to manage your affairs before you consider making an LPA.

Do not to leave your affairs to chance – call or e-mail for professional and friendly advice.

Shirah Real

Tel: 01276 681217

Email: Shirah.real@brooks–partners.co.uk

A Glutton for Punishment - The Commando Challenge, Again!

Some of you may remember that last year our Office Manager, Vickie Lennard, took the plunge and went in for the Commando Challenge which is held on the Royal Marines Endurance Course each year in Lympstone, Devon. This year she is doing it again and as a Princess! Last year the team undertook the challenge as mums and girlfriends of Royal Marines and were therefore dressed accordingly in camouflage. This year it is all about the GIRLS!! Hence the team name of "Primark Princesses" and therefore they will be undertaking the Commando Challenge in dresses and tiaras! The team is made up of Vickie, her niece Bryony (who is 17) and a friend of her son, Corinne who is 21. Vickie says that she needs all the encouragement she can get just to try and keep up with the “youngsters”.

We have seen the photographs taken last year and can’t wait to find out what the team are going to look like at the end of the course this year!!

The Challenge is in aid of The Royal Marines Benevolent Fund and Devon Air Ambulance - both very worthwhile charities - so, if you are able to donate please visit:

http://www.justgiving.com/Primark-Princesses

RECESSION BLAMED AS WORK TRIBUNAL CASES SOAR BY 50%

by Steve Doughty, Social Affairs Correspondent, Daily Mail.

Employment tribunal cases soared by more than 50 per cent last year as recession-hit workers tried to claw compensation from their bosses!

The industrial courts granted an estimated £1billion in payouts to those who claimed they had been wrongly dismissed or suffered discrimination.  In all 236,100 workers brought claims to the tribunals in the financial year that ended in March, up from 151,000 in the previous year and three times the numbers of the late 1990’s.

Some workers claimed they had been wronged in more than one way, meaning the total number of claims reached 392,800.  The pressure of compensation claims on tribunals is such that some have adopted an “open all hours” policy, running sessions during evenings and on Saturdays to meet the demand.

Kevin Sadler, chief executive of the Tribunals Service said yesterday that there was a “steeply growing workload” and added “There is no doubt that economic conditions have contributed to an increase in the number of cases received”.

The greatest jump came in claims under European legislation. Number of cases involving the European Working Time Directive – which limits the working week to 48 hours – almost quadrupled in a year from 24,000 to 95,200.  The directive, written into British law by Tony Blair’s government in 1998 is already reckoned to be costing the NHS nearly £4billion a year because it restricts the hours of junior doctors. Brussels is currently threatening to end the opt-out system that allows workers in this county the right to choose to work longer.

There were also a growing number of multiple claims in which large numbers of staff took out tribunal actions against a single employer.  The collapse of Woolworths brought multiple unfair dismissal claims; the rush of equal pay cases against local councils by groups of workers encouraged by unions has continued; and there have been multiple claims connected to the BA cabin crew dispute.

Numbers of race discrimination claims have gone up by nearly 40 per cent in two years to reach 5,700 last year.  There were also big increases in claims over alleged discrimination on grounds of disability, religion, sexual orientation and age.  Some claimants left their tribunal with compensation awards on the scale of a lottery win.  The biggest payout was £729,347 in a disability discrimination case.

For sex discrimination to the top awarded was £442,366 and the most successful race discrimination claimant won £374,922.  Amounts handed out to those who showed they had suffered poor treatment because of their age were lower with the biggest award being £48,710.  More than four out of ten cases settled last year ended with compensation awards, either ordered by tribunals or negotiated by the conciliation service ACAS.  The average payment was more than £9,000 in unfair dismissal cases and over £50,000 for those who suffered disability discrimination.

There are no records of what happened in the third of cases that were withdrawn before they came to a tribunal. In many of these employers will have settled out of court.