Law Articles



20/01/10

Civil Mediation / Alternative Dispute Resolution

Dealing with a dispute through the courts can often be extremely expensive and risky. It is not uncommon for the costs of a civil action to match or exceed the damages being claimed.

Costs are always at the discretion of the court but ordinarily the loser ends up paying the winner’s legal costs.

It is perhaps fair to say that over the last few years access to justice has been diminished in the light of escalating legal fees and charge out rates, the virtual extinction of legal aid in civil claims and an unwillingness on the part of lawyers to offer a no win no fee arrangement in all but the most certain of cases.

Mediation offers a real alternative to going to court. Civil mediations are conducted by an impartial mediator whose job is to assist the parties to reach their own settlement. A mediator has no power to impose an agreement on either side.

Mediation has a very high success rate; in the region of 80%.

The costs of mediation are born equally by the parties and are a fraction of the cost of going to court.

Neither do the parties need to instruct lawyers to act for them. Mediation offers many advantages over litigation as it can not only resolve the areas of dispute but also act to repair a breakdown in relations and enable the parties to continue working together thereafter without any animosity or ill feeling.

Mediation is suitable as a means of resolving most disputes including for example neighbour and boundary disputes, building disputes, trade disputes as well as conflict in the workplace whether between employees or employer and employee.

Mediation is increasingly being recognised as the way forward to resolving conflict. According to the Civil Mediation Council (CMC), of which D’Angibau LLP is a member, mediations between 2007 and 2008 increased by 196% and we anticipate that increase will continue.

The new ACAS code of conduct in dealing with employment disputes recommends mediation in the workplace as a means of resolving difficulties without recourse to the employment tribunal.

Significantly The Review of Civil Litigation Costs produced by Sir Rupert Jackson and published 14th January 2010 recommends increased use of mediation and recommends specifically that Judges, lawyers, small businesses and the public generally should be made aware of the benefits of mediation. Sir Rupert Jackson in his report states that mediation enables "civil disputes to be resolved at less cost and greater satisfaction to the parties than litigation".

In summary therefore, mediation is not only quicker, cheaper and less risky than going to court, but it also avoids the stress and destructive effect that litigation can have.

Civil mediation at D’Angibau LLP is carried out by Tim Glover who qualified as a solicitor in 1992 and has practiced exclusively in civil litigation and employment law. In 2007 he became an accredited mediator through the London School of Psychotherapy and Counselling, Regents Park, London.

 

11/01/10

MAKE A LASTING POWER OF ATTORNEY - YOU'LL REGRET IT
IF YOU DON'T!

"Court of Protection dismissed as an alien and costly institution".

So ran the Times headline on 4th January in an article about Heather Bateman's experience with the Court of Protection after an accident, which left her husband in a coma. Mrs Bateman’s very real problems could probably have been avoided if her husband had given her a Lasting Power of Attorney to run the bank account, which paid most of the household bills. In the absence of a Lasting Power of Attorney, she had to apply to the Court to be appointed as her husband's Deputy, a long and costly process which ultimately "brought almost as much anger, grief and frustration" into Mrs Bateman’s life as the accident itself. This is a scenario which should be avoided at all costs.

Time and time again I try to persuade clients to grant Lasting Powers of Attorney to their loved ones. They are easy to make, and they’re now the only way of appointing someone you trust to manage your affairs when you lose capacity. So why are people still leaving their families with no alternative but to apply to the Court because they haven't made them?

One reason may be the cost - depending on the work involved it could cost anything from £300 - £600 (plus a Court fee of £120) to have one professionally drawn. But money spent now could save you and your family a good deal more if they need to go to Court in the future. And think of the anxiety and frustration you’ll save your family by arranging your affairs properly now. If they have to wait until you’ve lost capacity to deal with the Court, they may then be least equipped to deal with it.

OK - you’ve read this far. Now you might say "Well, the chance of me becoming incapable is pretty remote - I’m healthy and I don't want to give up my independence".

But making a Lasting Power of Attorney doesn't mean giving up your independence at all. And as for your health - think about this. Unexpected accidents happen every day, and even if you're lucky enough to avoid them your greater life expectancy today makes it likely you'll suffer an illness before you die which prevents you from managing your affairs. Who will then take over if you’ve not appointed your own Attorney?

So I tell you, if you've never thought about making a Lasting Power of Attorney, think about it now! Next to a Will, it could be one of the most useful and important documents you will ever sign.

We have a great deal of experience in making and registering all types of Powers of Attorney. You'll find us friendly and approachable, but always clear and professional. We think you'll find that we will give you peace of mind and value for money. Please contact Robert Fielding or Caroline Cake at our Canford Cliffs office on 01202 708634, or Roger Turner at our Poole office on 01202 672598.

 

17/12/09

RENEWAL OF BUSINESS LEASES:

Landlord wanting possession on the grounds that the Landlord intends to demolish, reconstruct or redevelop the property and therefore needs possession in order to do this.

BACKGROUND LAW

A business tenant who enjoys security of tenure under the Landlord and Tenant Act 1954 (called "the 1954 Act" for short) is entitled at the end of his lease to request a new one from the landlord. NB: Some business tenancies are "contracted out" of the 1954 Act which means that the tenant is not automatically entitled to request a new tenancy and so this article will not apply to those "contracted out" leases.

If the tenant makes a request for a new tenancy, then the landlord has certain limited grounds for refusing the new lease and asking for possession. There are 7 grounds in all, but this article focuses on one of them, Ground "f" of Section 30 of the 1954 Act which enables the landlord to oppose the tenant’s application for a new tenancy on the grounds that he wants to demolish or reconstruct the property and needs possession in order to do so.

Throughout this article the premises let to the tenant are called "the Property".

PLANS TO DEMOLISH OR RECONSTRUCT

These plans may be the full demolition and rebuilding of the Property, or the conversion of part but to do this the Landlord needs possession of the Property. Whatever the reason it has been held in a number of cases that the landlord must have firm and definite plans for the work, both when he gives notice to the tenant and when the case comes to trial. The landlord has to prove that his proposals are definite and realistic and that the works will be carried out in the immediate future. There has been some doubt in the past about the position if circumstances change and then after the tenant has left the landlord decides to scrap the proposals and then re-let or sell the property: What can the tenant do about this?

THE CASE OF INCLUSIVE TECHNOLOGY - v - WILLIAMSON (2009)

Facts
This case involved a lease of 2 units at Gateshead Business Park Delph let for a term of 6 years in 2001. The tenant had the security of the 1954 Act. The Landlord owned other units. This is a fairly common type of letting.

Before the end of the tenancy the landlord decided to refurbish the whole of his estate and was advised that he could not do so without obtaining vacant possession of the tenant’s property. The tenant was told this initially in February 2006 and there were further discussions with the tenant in April and May of that year. In June the landlord served the Statutory Notice required by him under the 1954 Act (called a Section 25 Notice) making clear that the landlord would oppose the tenant’s application for a new lease and quoting Ground “f” as the reason. The Notice was due to expire on 31st January 2007. Having been given details of the refurbishment the tenant accepted that the landlord would be entitled to possession and therefore committed himself to a lease of new premises on 29th November 2006. The tenant then moved out on 15th December of his Property to start the new tenancy. Before that, however, in September the landlord had decided to put off the refurbishment due to the high cost, but never told the tenant. He could have allowed the tenant to have stayed on, even if it was on a shorter tenancy, so the tenant need not have committed himself to a new lease of other premises.

Claim for Damage
There is a section in the 1954 Act (S.37A(2)) which specifically covers the case where the tenant has left after being told that the landlord required possession and is entitled to damages if the landlord does not notify him of his change of mind.

Court’s Decision
The tenant brought proceedings for damages and when the case was first heard that Judge dismissed the claim. The tenant appealed and the Court of Appeal has now given a judgement in favour of the tenant on the basis that the landlord should have notified the tenant in September 2006 that he had changed his mind, and should therefore have allowed the tenant to remain, even if on a temporary basis. The tenant would therefore not have committed himself to the expense of a new lease, and was entitled to damages.

CONCLUSION
Obviously every case like this rests on its own facts, but this case makes clear that if a landlord does say he wants possession back to carry out works of refurbishment or redevelopment and later changes his mind, he should notify the tenant and either agree a new tenancy for a limited period, or agree to the tenant "holding over" when the lease expires for an agreed period. An alternative would be for renewal of the lease on the same terms e.g. 6 years, but with the landlord having the right to break as and when he wants to start his works of redevelopment.

Remember of course the landlord may have to pay the tenants some sort of compensation if possession is required under this ground; this is linked to the business rates and depends on how long the tenant has been at the Property. Many leases drafted in favour of the Landlord seek to exclude this right to compensation, however it is doubtful whether this is valid, as the relevant sections of the 1954 Act appear to cause such exclusions to be treated as void, although recent case law in relation to similar exclusions suggests that these exclusions might be permitted.

If you are a landlord or a tenant and are worried about the legal position in cases involving the renewal of a business lease, (and whether or not compensation applies) please contact us for advice. There are certain time limits and certain notices have to be served, so it is essential to take legal advice before these steps are taken.

Please contact:
Daniel Stanton Direct Dial: 01202 339705 email dstanton@dangibau.co.uk or Roger Turner Direct Dial: 01202 339706 email rturner@dangibau.co.uk.

 

26/10/09

PRE-NUPTIAL (AND POST-NUPTIAL) AGREEMENTS

Pre-Nuptial Agreements date at least from the 1970’s, although their use was then infrequent. A case in 1975 confirmed that they should be taken into account as one of the factors in considering the distribution on divorce but, despite this, their importance remained low.

The recent case of Radmacher –v- Granatino has brought such Agreements to the fore even though the Courts had remained reluctant to lend any real weight to such an Agreement and so the situation could change in the future, this case highlighting the fact that our law needs to be changed, not by case law, but by a new Act of Parliament.

The major points arising from this case are:

  • It was right that parties could themselves govern their financial rights more.
  • Unless more weight was attached to a Pre-Nuptial Agreement, England would become more separated from the rest of the world’s view of such Agreements.
  • It was not up to the Courts to change the law but Parliament with a new statute.
  • Such Agreements are still technically unenforceable as contrary to public policy in attempting to “oust the jurisdiction of the Court”. Despite this, they could still be taken into account, “possibly decisively”.
  • Overall fairness of the situation should be a guiding principal.

The general consensus following this case is that all Courts should give more weight to the terms a couple have agreed in a Pre-Nuptial Agreement but reliance on it is still far from guaranteed. Additionally, if there is perhaps a slight change in recognising such an Agreement made before parties marry, the same considerations apply to a Post-Nuptial Agreement.

Anyone looking to protect or preserve assets in the event of a divorce should therefore Consider a Pre-Nuptial or Post-Nuptial Agreement. For advice regarding this, please contact Jonathan Harvey at our Boscombe Office.

 

20/10/09

CONSUMER RIGHTS - rejecting defective goods

In June of this year I purchased a digital camera from a well-known retailer. Five weeks later a fault developed and it stopped working. On returning it to the store for a replacement I was informed by the Manager that I had to allow a repair under the terms of the warranty, that there was no right to reject, that the right to reject was excluded by the warranty and that certain statutory consumer rights simply did not exist.

This seems to be an increasingly common approach by retailers and is not only misleading and unlawful but quite simply wrong.

Section 14 of the Sale of Goods Act 1979 (as amended) provides that in consumer transactions it is implied that goods are of a "satisfactory quality" which means that they must be fit for purpose, safe durable and consideration may also be had to appearance, finish and freedom from minor defects.

Breach of this implied term gives the consumer the right to reject the goods and demand a refund providing the consumer acts promptly.

Section 6 of the Unfair Contract Terms Act 1977 states that the retailer cannot exclude the implied term of satisfactory quality.

The Sale and Supply of Goods Consumer Regulations 2002 contains a presumption that if the goods are defective within the first six months after purchase such defects were present at the time of sale. The Regulations state that the consumer may insist upon a replacement or repair or bring the contract to an end.

Somewhat unhelpfully however, the Regulations also state that the consumer may not insist upon a replacement if the costs would be disproportionate to that of the cost of repair.

What is clear, however, from the Court of Appeal decision in Clegg -v- Olle Andersson is that providing the Consumer acts within a reasonable time upon discovering the defect there is an absolute right to reject and demand a refund. As to what constitutes a reasonable time depends upon all the circumstances and not least the nature of the goods.

Accordingly whether the consumer has bought a camera or motor vehicle if he intends to reject the defective goods he must act quickly failing which his remedy may be restricted to damages.

 

14/10/09

Additional costs in Selling A Leasehold Property

Many Sellers of Leasehold Property are not aware of the additional costs that are incurred in the sale of a Leasehold property as opposed to the sale of a Freehold property.

The main additional cost is for enquiries made of the Freeholder of the land or more usually the Managing Agents who act for the Freeholder.

Even if you own a share of the Freehold Company, that Company probably appoints a Managing Agent to manage the day-to-day affairs of the development of which your property is part.

Some Leases require the Freeholders consent before you are able to proceed to sale the property, it is advisable to let your solicitor read your Lease and check the obligations before you place your property on the market. It can be a requirement that a certificate is obtained to confirm that you have complied with all your obligations under the terms of your Lease. Inevitably there will be a fee for producing this certificate from the Freeholder/ Managing Agents.

All service charges and ground rent must be paid up to date before completion can take place. Confirmation will be sought from the Freeholder/Managing Agent that this is the case.

If you have paid in advance for your service charges then this will be apportioned on completion and you will receive a refund from the Buyer - through their solicitors.

If you have carried out any alterations to the property this will require the Freeholders consent as well as any Planning Permission and Building Regulations that might have been required.

Many Leaseholders do not realise that they do need consent for alterations, retrospective consent can be sought, but this will hold up your sale and there will be a fee payable to the Freeholder/Managing Agent for this consent. It may well be that new plans will need to be drawn, if the alterations were of a structural nature and the Leasehold property no longer reflects the plan attached to the Lease. In this case a Deed of Variation will need to be entered into – again another delay in your sale. All these matters can be dealt with prior to you marketing your property so that when a purchaser has been found you sale should be a smooth transaction without delays.

Also it may happen that a Leaseholder has taken over a broom cupboard, the loft or uses a flat roof as a balcony or garden. These extras may not be included in your Lease but you have used them solely as yours and you have shown them to a potential buyer. The buyer will want to see this reflected in the Lease, this would then lead to the necessity of a Deed of Variation to reflect this.

Again if the works did need Building Regulations and/or Planning Permission this can also be retrospectively sought and the necessary Certificate of Completion and Planning Permission can be in place before you market the property.

The Managing Agents enquiries will also confirm whether there have been any disputes at the property, complaints about the service charge, noisy neighbours etc.

There are numerous other enquiries that the Managing Agents respond to and they charge a fee for this information in the region of £200- £250.

 

12/10/09

Why you have to prove your identity to us

New government regulations mean you must prove who you are if you are a new client or if your solicitor has not taken instructions from you for some time.

Why?

The UK is a major international financial and legal centre, with a strong reputation for honesty and integrity.

Unfortunately that is why financial and professional businesses, like banks and solicitors’ firms, are attractive to money launderers – criminal who sometimes try to hide stolen money by turning it into legitimate income.

The government has introduced measures:

  • To make it more difficult for criminals to make and keep money from their crimes
  • To confiscate the proceeds of crime

For this reason there are compulsory checks which solicitors have to make of their clients.

Being asked for identification does not mean you are under suspicion. The new identification requirements apply to all clients when they are asking their solicitors to conduct certain types of cases.

How this affects you

This means you will have to show your solicitor, or somebody acting on their behalf, some personal documents that can include:

  • Current signed passport
  • Photo-card driving licence
  • Benefit book
  • And a recent gas, electricity or other household bill

If you don’t have these documents, you will have to ask your solicitor to advise you on how best to prove who you are.

 

04/09/09

Domestic violence in a modern world

Due to the constraints of the current property market men and women are finding themselves living at home with mum and dad well into their thirties and beyond. Whilst many parents are happy to help their children in this way and it works to everyone’s benefit it is a sad fact of modern society that often parents find themselves abused, taken advantage of or even physically threatened or assaulted by the very people they are trying to help.

This must be one of the most difficult situations for a parent to find themselves in, frightened of their own children in their own home and whilst some parents can take the necessary steps to protect themselves it is a difficult and heart wrenching decision to make.

Domestic violence does not just take place between spouses or partners, despite the publicity that this obtains. Violence or intimidation by a child, parent or sibling is still a form of domestic violence and protection can be obtained from the courts in the same way as for married or cohabiting partners.

Non-Molestation Orders can be obtained to prevent the use or threat of violence in whatever form it takes, whilst an Occupation Order can order a person to leave or not return to a particular property or even within a specified distance of it.

An extension of the law to include persons in a “significant relationship” now covers couples even where they are not living together and so can be used to protect a wider group of people whatever their gender, marital status or sexual orientation.

Our family department are frequently asked to help in sensitive and complex domestic violence situations and related matters for example divorce and finances or contact/residence issues, and run weekly legal surgeries at local refuges. If you would like to talk to someone regarding any of these issues on a confidential basis please feel free to contact us on 01202 393506

 

03/04/09

HIPs Information for Estate Agents

Law stated as at 31st March 2009

From 6th April 2009:

HIPs must contain:

  • Index & sale statement
  • Energy Performance Certificate or Predicted Energy Assessment (new builds)
  • Title Documents and Lease (if leasehold or share of freehold)
  • Searches (Local and Water/Drainage)
  • Sustainability certificate (new builds)
  • **NEW** Property Information Questionnaire

No marketing can start until ALL documents are in place UNLESS the missing documents are searches, title documents (unregistered title only) or the lease AND those missing documents are ‘on order’ to arrive within 28 days.

About the Property Information Questionnaire

This new document must be completed by the Seller and will contain information about flood risk, gas and electricity safety, service charges, structural damage and parking arrangements/access. The Seller will usually need a solicitor to help them. Buyers can bring an action against Sellers for damages if answers are incorrect. Sellers may also be committing a criminal offence under the Fraud Act.

Sellers will not need a HIP for:

  • Properties where there is no marketing (e.g. private sales where no agent is involved).
  • Right to buy and similar sales
  • Non residential or mixed properties (e.g. shop with flat; farm with farmhouses)
  • Seasonal and holiday accommodation
  • Sales of portfolios of properties
  • Properties without vacant possession
  • Properties that are unsafe properties or about to be demolished

Sellers will need a fresh HIP if:

There is a break in marketing more than a year after the property first went on the market EXCEPT where a sale has fallen through and remarketing starts within 28 days.

There are fines of up to £200 per offence for non-compliance

The fines are payable by the person marketing the property!

D'Angibau Home Information Packs

  • D'Angibau has been acting for sellers of properties since the 1800s.
  • Our average turnaround for a HIP is 72 hours.
  • D'Angibau uses Official Local Authority Searches, which are more accurate and safer for Buyers.

Our charges include VAT and all disbursements:

  Freehold (inc VAT) Leasehold (inc VAT)
Poole, Bournemouth, Christchurch & East Dorset £299.00 £345.00
North and West Dorset, Purbeck, Weymouth & Portland £299.00 £325.00
New Forest £329.00 £355.00

Prices correct as at 31/03/09

 

03/04/09

6th April 2009 Required HIP Documents

Marketing cannot commence unless the Hip contains:

  • A completed Index

  • A completed Property Information Questionnaire (PIQ)

  • An Energy Performance Certificate (EPC) or Predicted Energy Assessment (PEA). Marketing can start without these documents, 14 days after their request, if they are not yet available but are expected to be available within 28 days of the original request

  • A completed Sale Statement

  • Office Copies and Title Plan or if unregistered a Search of the Index Map

  • If leasehold, a copy of the lease, or confirmation that it has been requested and is expected within 28 days

  • The Searches (Local and Water and Drainage) and if the property is unregistered an Epitome of Title or Abstract of Title or confirmation that those documents have been ordered and are expected within 28 days

Please also note that:

  • The completed PIQ must be the second document in the Hip

  • Personal searches will not be allowed in packs unless all relevant questions have been answered. Insuring any missing data will no longer be acceptable

 

11/02/09

Changes in Law for 2009

The Department for Communities and Local Government (DCLG) has published a Statement setting out details of changes to the law expected to take place during 2009. The full text can be found on here. DCLG statements are of particular interest to town planners, environmental consultants, developers and property sellers as they involve issues such as planning, home information packs, hazardous substances and housing.

Some of the key changes for those involved in the property and construction markets are:

  1. For the purposes of the Building Regulations, the new CAPITA organisation replaces CORGI (1st April 2009), Local Authorities will be required to keep a register of their own Building Control operations plus those of Competent Persons and Approved Inspectors (no date yet set) and the following regulations are improved:

    1. Addition of a water efficiency standard for new homes (1st October 2009)
    2. Changes to prevent accidents from hot water systems (1st October 2009)
    3. Safety controls (subject to further analysis) to limit bath temperature and related scalding risks (1st October 2009).


  2. The remaining provisions of the new system of unified development consent for "nationally significant infrastructure projects" in Parts 1 to 8 of the Planning Act 2008 and regulations setting out the detailed provisions for the "community infrastructure levy" come into force.

  3. Part 9 of the Planning Act 2008 will be brought into force (no date yet known) allowing Local Authorities to charge fees for appeals and allowing the Secretary of State to determine whether the appeal is dealt with by way of written representations, local hearing or public inquiry and putting a duty on Local Authorities to take action on climate change in preparing their local plans. Developers will also welcome the introduction of a formal process to establish whether a change to a planning permission is 'non-material'.

  4. The system of Tree Preservation Orders is to be simplified.

  5. All appeals under the Planning Acts can now be transferred for determination by planning inspectors.

  6. Local Authorities have greater powers to decline to decide applications which overlap.

  7. The Secretary of State is given additional powers to award costs in planning appeals.

  8. Review of the planning applications fees regime and possible consolidation of existing regulations dealing with planning fees, with the aim that the process be fully self-funding.

  9. Regulations (which have already been made) amending the requirements relating to home information packs, to include a property information questionnaire and summary of leasehold information. D'Angibau clients using the firm to prepare their home information packs need not be too concerned as this has been an anticipated step for a long time, but it is likely that sellers will need some assistance in completing the forms, which may lead to higher costs overall. Landlords will also charge for any input required from them in completing the summary of leasehold information. Beware of pack providers who will expect you to complete the information without the benefit of legal assistance.

  10. In some rural areas of the country the Government is concerned that owners of shared ownership properties are buying their freeholds outright ("enfranchising") and leaving a shortage of affordable homes. There will therefore be an order designating protected areas in which shared ownership leases would be excluded from enfranchisement.

  11. Regulations that impose additional requirements relating to the management of residential service charges. This is an important area for all landlords.

  12. In certain circumstances, the occupant of a property under a secure or assured periodic tenancy can cease to be a tenant and become a tolerated trespasser while remaining in occupation. This can happen when a court grants the landlord a possession order in respect of such a tenancy, but the date for possession has passed and the occupier is allowed to stay at the property. This puts the landlord and tenant in a sort of limbo, where various protections under the Housing Acts do not apply. The Government's intention is for regulations to reinstate the tenancies of existing tolerated trespassers and require successor landlords to reinstate the tenancy to tolerated trespassers who occupy that housing when it is transferred.

  13. The Government announced in the 2008 Pre-Budget Report that it is temporarily increasing the threshold at which an empty property becomes liable for business rates. From April 2009 until March 2010, empty properties with a rateable value of less than £15,000 will be exempt from business rates. These regulations have now been passed.

By Daniel Stanton

 

05/01/09

Companies House announces major hike in penalties for late accounts

Both private and public companies are required to submit their annual accounts to Companies House. Small private companies can file abbreviated accounts.

Existing private companies have ten months from the end of their accounting period in which to submit accounts to Companies House. Public companies have seven months.

New private companies must file an acceptable set of accounts within 22 months of the date of incorporation, while public companies have 19 months. The Companies Act 2006 reduces these periods for accounting periods beginning on or after 6 April 2008 to 21 months and 18 months respectively.

All company directors need to be aware that the penalties for late filing of annual accounts will increase substantially from 1st February 2009. The old and new fees are:

Delay Private Companies/LLPs Public Companies
     
Up to 1 month (£100)          £150 (£500)           £750
1-3 months (£100)          £375 (£500)           £1,500
3-6 months (£250)          £750 (£1,000)        £3,000
6 months + (£500)          £1,500 (£2,000)        £7,500

(Old fee) New fee

If companies are already late in submitting accounts this year, this must be put right before 1st February to avoid the new penalties, which will apply to existing delays.

In addition, all of the above penalties are doubled if accounts and returns for financial years beginning on or after 6 April 2008 are filed late in two successive years.

Source: Department for Business Enterprise & Regulatory Reform
For further information you can visit the 'guidance' section of the Companies House website (http://www.companieshouse.gov.uk/about/guidance.shtml)

By Roger Turner

 

07/11/08

Planning Permission and Building Regulations - what is the difference?

By Natalie Clarke

Both are the responsibility of the Local Authority. Planning Permission is permission to erect/extend a building, Building Regulations state how the new building must be constructed.

In addition to the need for these approvals, your title deeds may include covenants. These might state what can be erected or require you to get separate approval for changes from previous owners of the land, ground landlords or other bodies. Check your deeds or obtain specific advice from us if you are not sure.

Planning Permission
Local Authorities focus on the visual aspect of any development, and how appropriate is its intended use. Any person can make the planning application even if they do not own the land or have any interest in the land. A notice of the application will be published in the local Press and notices displayed at the property. Neighbors and anybody with an opinion are able to view the plans and make comments, which the Local Authority will have to take into account. Poole Council provides a very useful facility whereby you can monitor the status of your application online.

The Local Authority have a written policy which contains guidelines for what sort of buildings may be built in any area and, possibly, also define the building style. Whether an application is approved or refused will depend largely on the local guidelines.

The Authority's Highway Department will become involved where the application requires vehicle access or increased road traffic.

It is general government policy that development is permitted unless there are good reasons to refuse Planning Permission. Planning Permission is officially granted by a Planning Committee, (elected members of the council), which is normally open to the public. However; the Council Officers (non-elected, paid employees of the Council) will make recommendations to the committee; if the matter is routine, the committee will normally accept the official's recommendations. It is always worth consulting the officials before an application is made and again before the application goes to the committee; it is then often possible to make small last minute changes to the plans so that they will be accepted.

Even if permission is refused, there is a right of appeal - first to the council, and then to the Secretary of State. While probably not worthwhile for a small application, big developers have an army of specialists they call upon so that they finally get their wishes, even if they have to make some modifications.

Where Planning Permission is given for a new building or alteration, Building Regulation approval is normally also required.

Planning Permission
These set out how a new building or alteration is to be built so that the building is structurally safe, protected from risk of fire, energy efficient and has adequate ventilation for its purpose. An application for Building Regulations approval is not advertised and only the person applying and the Local Authority are involved.

Building Regulations approval may be required even if Planning Permission is not.

The building control officers of local authorities grant building Regulations approval, they are generally separate from the planning officials. Once approval has been given and work started, the local building Inspector will attend the site at specific stages to inspect the work, and they may change the requirements as the work progresses. The most common change is probably at the foundation stage when the Inspector will see the subsoil before the concrete is poured. If the inspector deems that the planned depth is insufficient, they can demand that the foundations be deepened before the concrete is laid (and you have to pay for the extra concrete).

Applications for either approval involve a fee, normally related in some way to the value of the development.

Where the development is more than just a simple extension, it is worth considering employing an architect to draw up the plans, submit them to the Local Authority, and obtain the approval and then to oversee the work. A professional architect will have professional insurance in case anything should go wrong and should know the Local Officials and their particular foibles.

Every application for Planning Permission or Building Regulations is, to an extent, unique. While the following are general rules, it is impossible to define all the regulations applying to a specific development - Local Authorities have some thick books of rules rather than just these few pages. It is always good advice to consult your local planning/building control officers early to avoid any costly abortive work. If work is carried out without the necessary approvals, the local authority can issue an enforcement notice requiring (at best) retrospective approval or (at worst) demolition of the work completed.

Although the functions of Planning Officials and Building Inspector are separate, the two will often be found in the same building; they are normally very helpful and offer authoritative guidance.

This is applicable to single dwellings in England and Wales they do not apply to properties in Conservation Areas, National Parks, Areas of Outstanding Natural Beauty or the Norfolk & Suffolk Broads; or to Listed Buildings

 

27/10/08

BUYING A PROPERTY AT AUCTION?

By D'Angibau LLP Solicitors

Are you tempted to buy a “snip” at auction – there are plenty of re-possessed properties now being sold in this way and this may be your best chance to get onto the property ladder to provide a home for yourself or as an investment for letting.

Beware
There are many risks involved and obtaining advice beforehand from professionals is absolutely essential.

Why be so careful?
Unlike a normal purchase where there is a pre-contract stage to give you time to check the contract, make searches and arrange your finance, if you bid successfully at auction there is an immediate binding contract and you buy the property “warts and all” subject to any legal problems or defects in the property.

Horror Stories
 We have been involved with cases where clients have purchased at auction without checking any documents and without seeking professional advice. Examples are:

  • no legal access to the first floor flat
  • an occupier in the property not notified to the buyer.
  • Buying before arranging a mortgage and selling own property. No sale proceeded and no mortgage could be obtained in time. Result: failure to complete the purchase on time and loss of 10% deposit plus costs

Don't let this happen to you!
As soon as you receive the auction particulars ask solicitors to check out the conditions, title, searches etc before you bid at auction.

For an information sheet giving tips to buyers at auctions contact Roger Turner at D’Angibau LLP Solicitors on 01202 672598, fax 01202 680958 or e-mail rturner@dangibau.co.uk.

 

15/10/08

INFORMATION SHEET ON HOME INFORMATION PACKS AND
ENERGY PERFORMANCE CERTIFICATES

By Natalie Clarke, of D'Angibau LLP Solicitors

How this affects you
The government last year introduced HIPs to help speed up the conveyancing process and to make selling a house more transparent by allowing buyers to make a better-informed decision about their purchase. HIPs only apply to residential properties marketed for sale.

What is a HIP?
A HIP is a pack of information relating to the property. The minimum “required” documents (these should be no more than 3 months old at the time the property goes on the market) that must be in a HIP are: -

Home Information Pack Index
Energy Performance Certificate (EPC) which rates the property on its efficiency in the same way as an electrical appliance is rated i.e. on a scale of A-G (A is very efficient)
Sale Statement
Title Documents
Local Authority Search
Water and Drainage Search
Leasehold documents – Lease
Index Map Search unregistered land.

There are additional “authorised” documents that “may” be included in the HIP. Upon obtaining your title deeds we will thoroughly inspect all documents to see if any can be included to ensure that a worthwhile, fully comprehensive pack is provided.

Temporary first day of marketing ends 31 December 2008
Provided that the pack has been requested in writing (and has been paid for or an undertaking to make payment has been made) and the documents are expected to arrive within 28 days- marketing can start without a HIP.

From 1st January 2009 onwards, there must be a HIP available when marketing starts. Marketing with an incomplete pack may take place if documents have been requested and it is expected they will arrive within 28 days of the start of marketing. This exemption only applies to searches/leasehold information and evidence of title for unregistered properties

How long is a HIP valid for?
The HIP is valid for so long as the property is continuously marketed for sale. Where the property is withdrawn from the market and re-marketed by the same owner, the HIP is valid for up to one year. There is no requirement for any component of the HIP to be updated whist the property is marketed for sale. It is up to the seller and buyer to negotiate any update of any part of the HIP. So far as buyers are concerned, if they have a mortgage, it is a requirement of the Council of Mortgage Lenders Handbook that all searches must not be more than 6 months old at completion. If the searches are out of date the buyer will need to update the searches unless they can convince the seller to do so.

There are a number of exemptions
Properties where there is no marketing (e.g. Private sales to a family member, neighbour or friend etc. where no agent is involved.
Non Residential Properties
Seasonal and holiday accommodation
Mixed sales (e.g. shop with flat; farm with farmhouses etc)
Right to Buy and similar sales
Sales of portfolios of properties
Properties not being sold with complete vacant possession
Unsafe properties and properties to be demolished

Why Use Us
Many HIP providers are using personal searches rather than official searches issued by the Local Authority and Water Board. Official searches are acceptable to all lenders and solicitors. The problem with personal searches is that they are not accepted by a number of lenders, which means that delays occur whilst the Buyer’s solicitors make additional searches.

We can provide complete, accurate easy to understand and competitively priced HIPs using official searches within one week of receiving your instructions. We can undertake the conveyancing to ensure a smooth transaction from start to finish. When we take your instructions on the HIP, we also supply and arrange for completion of the relevant property forms to ensure that once a sale is agreed matters can progress quickly. A truly “one-stop” service.

Energy Performance Certificates (EPC)

From 1st October 2008 All homes being sold for occupation will need an Energy Performance Certificate (EPC) and this must be given to the buyer regardless of the date the property was first marketed. Contracts must not be exchanged until a copy of the EPC has been given to the buyer or the solicitor/conveyancer. The penalty that could be imposed on the seller by trading standards officers is £200. The average local cost for obtaining an EPC is £75 plus VAT

As from 1st October 2008 an EPC (but not a Home Information Pack) will be required for two other types of property transactions: -

1. A letting of residential property –

If you let a property on or after the 1st October an EPC will have to be provided to the prospective tenant.

2. A lease or sale of commercial property –

If a “non residential” property is sold, leased (or a lease is assigned) on or after the 1st October then again an EPC must be provided by the seller/landlord to the buyer or tenant.

In both cases the EPC will last for 10 years

Costs for HIPs

Our Total Costs inclusive of VAT in the following areas are: -

 
Freehold
Leasehold
Poole
£308.88
£334.88
Bournemouth
£324.88
£350.88
Christchurch
£285.88
£311.88
Weymouth & Portland
£295.88
£321.88
North Dorset
£301.88
£327.88
East Dorset
£316.88
£342.88
West Dorset
£305.88
£331.88
Purbeck
£295.88
£324.88


Prices correct as at 01/09/08 subject to change in accordance with local authority search fee changes

If you are thinking about selling and would like further information please contact Natalie Shiel on 01202 672598 or e-mail nshiel@dangibau.co.uk

 

02/10/08

HOME INFORMATION PACKS - THE LATEST POSITION

By  Lesley Curtis and Natalie Clarke, of D'Angibau LLP Solicitors

In our earlier articles we outlined the introduction by the government of the Home Information Packs (HIPs) in an attempt to speed up the conveyancing process and to make selling  a house more transparent by allowing buyers to make a better informed decision  about their purchase. The HIP is made up of an Index, a Sale Statement, Local  Search, Drainage Search, Lease (if leasehold), Evidence of Title and an Energy  Performance Certificate ("EPC") that rates the energy efficiency of the  property and contains advice on how to cut carbon dioxide emissions and fuel  bills.

At the moment provided that a HIP has been requested  in writing (and has been paid for or an undertaking to make payment has been  made) and the documents are expected to arrive within 28 days- marketing can  start without a HIP

From 1st May 2008 onwards a HIP for a newbuild home must have a certificate (or an  interim certificate) showing the rating that the home has received in respect  of the Code for Sustainable Homes or a nil-rated certificate showing that the  home has only been designed to meet current Building Regulations

From 1st October  2008

  • All homes being sold  for occupation will need an EPC and that EPC must be provided to a buyer  regardless of the date the property was first put on the market. Failure to do  this may result in a £200 fine being imposed on the seller by a trading  standards officer
  • An EPC (but not a Home  Information Pack) will be required for two other types of property  transactions: -
     
    1. A  letting of residential property - If you let a property on or after the  1st October an EPC will have to be provided to the prospective  tenant.
    2. A  lease or sale of commercial property - If a "non residential" property is  sold, leased (or a lease is assigned) on or after the 1st October  then again an EPC must be provided by the seller/landlord to the buyer or  tenant.
  • In the above 2 cases the EPC will last for 10 years  but if it is part of a HIP then it will only last for one  year.

From 1st January 2009  onwards, there must be a HIP pack available  when marketing starts. Marketing without a complete HIP can only take place if documents have been requested and it is anticipated that they should arrive within 28 days of the start of marketing. This exemption only covers Searches/Leasehold Information and Evidence of Title for unregistered properties.

 


D'Angibau is regulated by the Solicitors Regulation Authority. View the SRA Code of Conduct

Provision of Service Regulations 2009
We comply with the above regulation by displaying the required details of our Professional Indemnity Insurance in each of our offices.