The Blog - Archive
November 2008
25/11/08 Planning Permissions – Hair, Beauty and Nail Salons
If you are looking to purchase an existing salon, open a new salon or expand the range of services you currently offer, there is an important quirk of planning law with which you need to be familiar.
Most shop premises have what is known as ‘A1 retail’ use for planning purposes. This includes hair salons but does not include beauty salons or nail bars. This means that in some cases, in order to trade legally, a planning application for a change of use will need to be made. Such applications, even if they are successful, can take six weeks or more, leading to significant delays in transactions.
I have dealt with many transactions involving salons and in two transactions in the past month a lack of planning permission for an intended salon use has been an issue. It is important to address the current authorised planning use with the agent marketing the premises and the seller at the earliest possible opportunity to give you the best chance of hitting that target date for completion.
24/11/08 Mining Subsidence Compensation
In a recent High Court Case, a homeowner sued the Coal Authority when the value of their home plunged because of subsidence damage to the property next door caused by coal mining activities. They were unsuccessful.
The homeowner will be left uncompensated unless their property has suffered physical damage.
Fortunately there are few sites in the South of England affected by coal mining, but this case gives value to carrying out appropriate coal mining searches and making specific enquiries of the seller if a property is being purchased in affected areas.
21/11/08 Land Registry developing Flood Risk Indicator
The Land Registry is proposing to develop a flood risk indicator that will be accessible to purchasers and their solicitors on the Land Registry website. The intention is to provide instant confirmation as to whether a property could be affected by flooding (whether it is on a flood plain).
We have responded to a Land Registry survey to indicate that in principle we would welcome such a system as long as the fee payable to access the information was reasonable. We were undecided as to whether flood risk should be shown on a property's registered title, as Official Copies of the registered title are compulsory documents within the Home Information Pack and without further detailed information explaining the nature of the flood risk this could have a disastrous effect on the marketing of that property.
20/11/08 Buying or leasing commercial property? Go prepared.
D'Angibau can assist you at the 'heads of terms' stage to prepare for initial meetings and to make your offer. Many of our clients have found this service particularly useful.
We can also confront a number of the legal issues that may arise at this early stage, speeding up the process later on.
To assist us to deal quickly with your purchase or lease, once you have reached agreement you should ask the landlord or their agents to provide:
- a detailed plan of the property
- the energy performance certificate
- an asbestos survey
- a fire risk assessment
- a disability audit (if one has been carried out)
- details of the insurance (if leasing)
- confirmation of all the agreed terms of the deal, including the detail from any discussions
For further information on buying or leasing commercial premises please contact Daniel Stanton or Roger Turner on 01202 672598.
20/11/08
Did you enter into a commercial lease after 1st December 2003?
On the grant of your lease, your liability to Stamp Duty Land Tax will have been worked out on the basis of the current rent.
If your lease is for more than 5 years and there is a rent review, you will need to make a further return within 30 days of the fifth anniversary and pay any further duty that has arisen because of the higher rent. You will also need to make a return if rent was unknown at the start of the term (for example, where there is a rent linked to turnover or profits). In some cases this can lead to a rebate, if the rent paid has not proved to be as high as originally estimated.
There are limited exceptions to this but in general most will need to comply.
D'Angibau may be able to offer a fixed-fee service for dealing with Stamp Duty Land Tax returns. Please telephone or email Daniel Stanton for details.
19/11/08 Environmental Impact Assessments in the Planning Process
Since 1st September 2008 (England) and 6th October 2008 (Wales) Local Authorities have been able to require Environmental Impact Assessments (EIAs) both when applying for outline planning permission and when applying for detailed planning permission following the grant of outline planning permission.
This essentially allows the Local Authority to have two ‘bites of the cherry’ in considering to what extent the proposals contained in Planning Applications may have an impact on the environment.
We are occasionally asked to act for the purchaser or tenant of a property where the landlord is not represented by solicitors.
Since 10th November 2008 we have been under a duty to verify the identity of an unrepresented seller, the aim being to avoid the fraudulent sale of a property by an impostor purporting to be the owner.
Any unrepresented person selling property to our clients will be required to attend our offices to have their identity documents verified and give a specimen signature. This does not, however, mean that we are acting on their behalf in a solicitor-client relationship (often we are prohibited from doing so).
The Land Registry are quick to point out that this does not in itself make solicitors liable if the transaction turns out to be fraudulent due to deliberate evasive action by the third party but ought to assist in reducing property fraud in the future.
We anticipate there will be situations where an unrepresented person cannot attend our offices. In such cases they may be able to attend the offices of another solicitor to deal with the verification process.
12/11/08 New Guidelines for Eco-towns
Developers of the much-publicised ‘eco-towns’ around the country have to work to stringent emissions targets set by the Government. The Department for Communities and Local Government suggests the Government may yet revise the method used to set the emissions standard for eco-towns but in the meantime the Commission for Architecture and the Built Environment (CABE) and BioRegional have published recommendations on how to reach the current targets.
Eco-towns will need to provide low carbon public transport, sufficient ‘green’ space such as parks, sports fields, trees and areas for growing food, walking/cycling initiatives and ‘green’ leisure facilities.
A copy of the report can be viewed online at www.bioregional.com.
10/11/08 Deposit Protection for Residential Tenants
From 6th April 2007 residential landlords have been required to ensure that residential deposits taken in relation to Assured Shorthold Tenancies are protected. This must occur within 14 days of receipt by the landlord. Protection is usually by way of the payment of the deposit to a third party, such as the Government-backed Deposit Protection Scheme.
If the deposit is not protected then the landlord cannot serve the usual two months' written notice on a tenant in order to terminate a tenancy at the end of a fixed term, or after a fixed term has expired. No notice may be given in relation to the tenancy until such time as the deposit legislation is complied with.
If the tenants believe that the deposit has not been protected or the tenant has not been given the necessary information within 14 days of deposit, the tenant can make an application to the court.
If the landlord has not provided the information or protected the deposit, the court must either order repayment of the deposit within 14 days, or order the payment to the administrator of a deposit protection scheme.
The court must also order the landlord to pay the tenant three times the deposit amount within 14 days of the making of the order.
BUT
A recent case has decided that provided the landlord has provided the necessary information and protected the deposit before the tenant made their application to the court, it did not matter that the landlord breached the 14-day time limit. The court did not say what the position would be if the landlord had provided the information after the tenant’s application to court.
This decision must be treated with caution, as it appears to run contrary to the intentions of the Act of Parliament introducing this requirement and should not be treated as a licence to flout the rules but nonetheless it may save landlords from the potentially harsh financial penalties and deter tenants from bringing a claim.
05/11/08 Reduction of carbon emissions in use and refurbishment of Commercial Property
For over a month now commercial sales and lettings have required the seller or landlord to produce (or have on order) an Energy Performance Certificate giving an ‘energy rating’ for the property.
The Royal Institution of Chartered Surveyors (RICS) has considered the options for making existing commercial properties more energy efficient and compiled a report of their findings. This should be of use to anyone looking to save money on energy bills or purchase or lease a property.
If you are planning to carry out works to your property, the Carbon Trust has published a report dealing with the refurbishment of buildings, which makes some very useful recommendations.
03/11/08 Another Tool Against Anti-social Behaviour – Gating Orders
Part II of the Countryside and Rights of Way Act 2000 allowed Highways Authorities to close footpaths and bridleways where there is likely to be:
- a danger to the public
- a risk of fire
- a risk to nature conservation and heritage preservation
Since 1st April 2006, Local Authorities have also had wide-ranging powers to impose ‘Gating Orders’, to erect a physical barrier to restrict public access to a highway. Gating orders are mostly used on minor highways such as alleyways and passages that are experiencing high and persistent levels of crime and/or anti-social behaviour, adversely affecting local residents or businesses.
Home Office guidance is available to assist in deciding whether applying for a gating order is the most appropriate course of action (including a step-by-step guide, case study and flowchart) can be found on the following link:
Services
- Dispute Resolution, Mediation and Litigation
- Wills, Inheritance Tax Planning and Probate
- Lasting Power of Attorney
- Family, Divorce and Separation
- Civil Partnerships
- Commercial Services
- Buying, Selling or Setting up a Business
- Landlord and Tenant
- Conveyancing (Residential Property)
- Employment Law
- Criminal Law
- Personal Injury
Proud sponsors of:
