Do Not Ignore Restrictive Covenants!

The word covenant derives its root from Latin word ‘convenire’. Meaning “come together”, agree, unite or be suitable.

A restrictive covenant is a promise that prohibits us from doing something. Therefore, in the context of an owner or occupier of a piece of land, it is a promise not to do something on his or her land. It is a restriction on the use of the land. Restrictive covenants do not only bind on those who agreed to them but they may run with the land. They bind on future owners or occupier of the land. A restrictive covenant is only valid if it gives some benefit to an adjoining piece of land. The intention may be to keep the character of the neighbourhood residential.

Some examples of restrictive covenants are; restriction not to build or erect any new structure whatsoever on the land; restriction to build only one dwelling on the land or restriction of access over the land.

It is important to bear in mind that there are risks or consequences when we choose to ignore restrictive covenants. It may lead to breach of the restrictive covenant. Hence, ensue Court proceedings should the beneficiary of the restrictive covenant object to the breach.

If you are an owner or occupier of a piece of land with restrictive covenants and you want to carry out development that are likely to breach the restrictive covenants do not just ignore the restrictive covenants rather seek specialist legal advice. Thus, our conveyancing team can assist you with specialist advice should you need such assistance.

A case study

In the decision of the Court of Appeal in Alexander Devine Children’s Cancer Trust v Millgate Development Ltd and others [2018] EWCA CIV 2679 (Millgate and others), developers were reminded of the risks of ignoring restrictive covenants in the course of carrying out development.

The brief facts of the case are that in 2012 the Trust was gifted a portion of agricultural land by Mr Smith for development of hospice for children to live out their remaining days in peace. In 2013, Millgate acquired some land for developing a 75 unit residential site with a planning required to provide 13 off-site affordable housing units. Millgate designated land neighbouring that of the Trust’s has a restrictive covenants agreed in the 1970’s which stated “no building structure or other erection of whatsoever nature shall be built, erected or placed on Millgate’s land.” In 2014, works began. When Mr Smith became aware of the development, he raised objection on behalf of the Trust. He asked the work to stop in recognition of the restrictive covenant. However, Millgate acting on legal advice continued with the work. Millgate applied for discharge of the covenant to the land Tribunal. The Trust opposed Millgate’s application based on the Trust’s land ownership and the harm directly caused to their intended hospice.

The Tribunal found in favour of Millgate in the public interest argument, on the basis of the economic and public benefit provided and the Trust compensated for nuisance.

The Trust appealed the decision. On 28^th November 2018, The Court of Appeal heard the case and was very critical of Millgate’s behaviour. The Court found in favour of the Trust on grounds that the Tribunal had erred in law, public interest to ensure and uphold the rule of law and breach of property right.

Hence, the takeaway lesson is, it is important not to just ignore restrictive covenants. Seek specialist legal advice in order to assist you identify the risks, weigh the risks and how to resolve them.

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Employment Law Focus: In the eyes of the law, dismissal based on hearsay is unacceptable – even in serious circumstances!

It is reasonable for employers to want their employees to have clean criminal records for a variety of reasons, one major reason being the reputation of the business or institution they are responsible for. However, in the eyes of the law any dismissal made in response to an employee being at risk of having committed a crime is seen as unfair. Just because the possibility of the crime is there, does not give the employer the right to sack the accused before the proper processes have been completed. The employer must arrive at a decision based on the facts, applying the balance of probabilities, as to whether the misconduct really occurred.

Some things employers should consider when debating dismissal

Rather than heading straight for an automatic dismissal, employers should consider some of the following options:

whether they as the employer should warn, and consult with, the employee about the reason for considering dismissal

arrange a meeting between the employer and employee (and a representative if the employee chooses), before the decision to dismiss is taken. This gives the employee the chance to explain themselves and to express their views

assess whether there are any alternatives to outright dismissal

if the dismissal takes place, consider whether the employee should be given the right to appeal (with any such appeal being heard, if possible, by a manager who was not involved at the dismissal stage).

An extreme case study

To give an example of this predicament, we can turn to a case study from real life. This case is called K v L (UKEATS/0014/18/JW). The facts of the case are as follows:

In this case, Claimant K is a teacher. He was found to have indecent images of children on his computer, the images had been put together using a programme similar to Photoshop (known as pseudo-images).

K had worked at the same school for 20 years and previously had no blemishes on his record. After telling his employers about the case against him, he was suspended from work.

K explained that his son and his son’s friends also had access to the computer and it could have been them. He was taken to court, but the case against him was dropped. Still, due to concerns surrounding the reputation of the school, K was dismissed, even though the school’s Head of Service held that there was insufficient material upon which to conclude that the claimant was responsible for downloading the images.

K went on to claim unfair dismissal, but the employment tribunal rejected the claimant’s claim and held that the dismissal was fair in the circumstances.

K went on to the Employment Appeal Tribunal (EAT) on the grounds that the school had not given him the notice that he was at risk of being dismissed on the grounds of reputational damage and that he could not be dismissed on the basis that he might have committed the offence. The employer had to be satisfied on the balance of probabilities that he had committed the offence.

What did the EAT decide?

The tribunal believes that K’s dismissal was not handled properly, as they were not clear on the exact grounds they were dismissing K. There was insufficient evidence to prove that K had committed the offence. On the balance of probability, it was unlawful to dismiss him on this ground.

Reputational concerns can be treated as separate to the original case; however, in that case, the employer school must give notice to K of the ground upon which dismissal may be sought. The notice must be expressed clearly. K should be able to understand the allegation the school makes.

In these circumstances, the dismissal was unfair in that it relied on a ground of dismissal that was absent from the complaint and for which there was insufficient notice.

The decision went back to the Head of Services decision that there was not enough evidence to prove K was responsible for the indecent images, but decided to dismiss him anyway. This was seen as unfair.

Clearly, reputational damage was an important concern for the school given the nature of the charge and their responsibility towards children, but the intensity of the reputational damage lessened when it was indicated that there was no plan to prosecute K.

The full case can be read here.

What do we think?

This case is indeed of an extreme nature due to the abhorrent nature of the accusation, and the setting of a school. It goes to show that in law there are always many intertwined components that must be explored for the best decision to be made. Of course, everyone must have a fair chance to contest any decision made against them – but on the other hand employers have a responsibility to protect the reputation of their establishments for the good of all the other employees. However, in such situation, any dismissal will have to follow the correct procedure and on the correct ground. Otherwise, it is likely to be held as unlawful and unfair.

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Huge changes to immigration rules set to pave way for EEA students coming to the UK!

There have been some major changes to the UK’s immigration rules today, including an introduction of the Student and Child Student rules for the Points Based Immigration System which will replace the Tier 4 (General) and Tier 4 (Child) routes. There is also altered rules for English Language provision and some new guidance on the financial options available to students and the Academic Technology Approval Scheme.

Student and Child Student Routes

In a statement related to these new routes the Home Office have said:

“International students play a key part in the government’s agenda to unleash the UK’s potential now that we have left the EU. They make important contributions economically, academically, and financially.”

In keeping with the statement, some big changes are being brought in which we hope will make it easier for more international students to come to the UK and flourish.

The Student and Child Student routes will replace the Tier 4 (General) and Tier 4 (Child) routes in the Immigration Rules and there are some key differences to take note of. It is also important to remember that all references to Students or Child Students in the new rules must be read as including people who currently hold leave as Tier 4 Migrants.

Same treatment for all:

EEA nationals will be required to meet the same requirements to study within the UK as non-EEA nationals and will need to apply under the Student rules.

More chance to switch permission/extend leave to remain:

There will be more leeway when it comes to switching permissions and switching between routes within the Points Based Immigration System. Under the old Tier 4 routes, students and children had to meet specific sponsorship requirements to apply for further leave in country. Under the Student and Child Student routes, applicants will be able to apply for further permission to stay in the UK to study under Student Routes, unless they last held leave as a visitor; a short-term student; or were granted outside the immigration rules. It is also worth to note that if the applicant has last held leave as a Parent of a Child Student, a Seasonal Worker, or a Domestic Worker in a Private Household, will not be allowed to submit an in-country application.

No time limit on studying

The eight-year time limit on studying courses at postgraduate level has been removed. There is no longer a limit on the time that an individual can spend studying postgraduate courses.

Privileges after one year

Applicants who apply for permission to stay in the UK will not be required to provide evidence of maintenance funds when they have spent longer than one year in the UK on their current visa.

Dealing with language in a simplified way

New simplified rules are introduced surrounding English language proficiency, but currently these new rules only apply to the Student and Child Student routes. It is likely that the changes will apply to several routes in the coming months.

Once is enough

Applicants only need to prove the required level of English language to the Home Office once. This is a positive and logical step and will save a lot of time, both for the student and the Home Office workers.

Qualifications = evidence

Applicants who have gained GCSE/A Level or Scottish Highers in English while at school in the UK can rely on this to prove their English language ability.

Maintenance and finance updates

More trust where it is due

There will no longer be a requirement that applicants who have met the maintenance requirement on their current route have to meet it again if they have been supporting themselves in the UK for more than a year.

More options

Applicants will be able to rely on electronic bank statements as part of their evidence, and applicants will be permitted to show they meet maintenance requirements by relying on a wider range of accounts. Funds may be held in any form of personal bank or building society account (including current, deposit, savings, pension from which the funds can be withdrawn or investment account) provided the account allows the funds to be accessed immediately.

Exemption from the Academic Technology Approval Scheme

The Academic Technology Approval Scheme (ATAS) requires certain international students who are subject to UK immigration control, who are intending to study at postgraduate level in certain academic subjects, usually of the scientific variety. The complete list can be found from page 21 of this document.

As part of the changes to the immigration rules, the list of countries students can come from who are exempt from having to complete the ATAS has been extended. The current list is as followed:

Australia
Austria
Belgium
Bulgaria
Canada
Croatia
Republic of Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Iceland
Ireland
Italy
Japan
Latvia
Liechtenstein
Lithuania
Luxembourg
Malta
Netherlands
New Zealand
Norway
Poland
Portugal
Romania
Singapore
Slovakia
Slovenia
South Korea
Spain
Sweden
Switzerland
United States of America

What do we think about these changes?

As we said at the start of this article, we enjoy seeing global talent come to the UK to study and eventually work and settle here. It is great for the country in many ways, culturally and financially. These changes do seem mainly positive, and should have little or no effect on students currently in the UK or who were planning to apply under the routes.

However for EEA students, this means that they will no longer be able to enter the UK on the basis of Free Movement and will have to apply for a visa prior to entering the UK. For sponsoring institutions, for example UK universities, their recruitment practices will also need to be amended to incorporate EEA students into their processes.

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Digital Identity in the UK – What does the future hold?

Six new principles have been developed to boost secure use of digital identity and strengthen digital identity policy in the UK.

Mark Warman, Digital Infrastructure Minister has said:

“We want to make it easier for people to prove their identity securely online, so transactions can become even quicker – it has the potential to add billions to our economy.”

What are the six new principles?

According to the Government guidance, available here, the new principles are as followed:

The six principles are:

1) Privacy – When personal data is accessed people will have confidence that there are measures in place to ensure their confidentiality and privacy; for instance, a supermarket checking a shopper’s age, a lawyer overseeing the sale of a house or someone applying to take out a loan.

2) Transparency – When an individual’s identity data is accessed when using digital identity products they must be able to understand by who, why and when; for example, being able to see how your bank uses your data through digital identity solutions.

3) Inclusivity – People who want or need a digital identity should be able to obtain one; for example, not having documentation such as a passport or driving licence should not be a barrier to not having a digital identity.

4) Interoperability – Setting technical and operating standards for use across the UK’s economy to enable international and domestic interoperability.

5) Proportionality – User needs and other considerations such as privacy and security will be balanced so digital identity can be used with confidence across the economy.

6) Good governance – Digital identity standards will be linked to government policy and law. Any future regulation will be clear, coherent and align with the government’s wider strategic approach to digital regulation. For example, firms verifying your identity will need to comply with laws around how they access and store data.

Why is this happening?

We are living in a digital age, and digitisation is only going to become more widespread as time goes on. More and more, people are having to prove who they are when attempting to use services, whether it is purchasing an age-restricted item or booking a hotel – we have all experienced it. Now, the government plans to update existing laws on identity checking to enable digital identity to be used as widely as possible, and the six steps listed above will be a formulate part of that.

Also, people have their identity stolen frequently, especially when it comes to the digital realm, in fact digital fraud has risen by 32% over the last 5 years. As part of this plan, the government will develop legislation for protection relating to digital identity, add much needed clarity on rights for individuals, and offer support is something were to go wrong. There will also be consultations on the privacy and technical standards for administering and processing secure digital identities.

It could also be said that a final push towards this decision was the fact that 2.6 million people have made a claim for the Self-Employment Income Support Scheme online since its launch on 13 May 2020, and 1.4 million of those applicants had no prior digital identity credentials and needing to pass through HMRC’s identity verification service. Moving into the future, the government are keen for everyone in the UK to have an easily accessible digital identity to streamline these types of processes.

What do we think?

As we have said before, we are not afraid of stepping into the digital age – in fact we welcome it. The main thing is that people’s data is used fairly and transparently. We have no issue with digital identity as long as it is used with the persons consent. If it helps speed up government processes, we are all for it.

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Competition and Markets Authority has 4 major property developers in its crosshairs!

Four of the UK’s largest housing developers could face legal action after the Competition and Markets Authority (CMA) revealed it has initiated action over the way leasehold homes were sold.

The developers in question are:

Barratt Developments

Countryside Properties

Persimmon Homes

Taylor Wimpey

The CMA claims that it has unearthed evidence of potentially unfair terms concerning ground rents in leasehold contracts and potential mis-selling. It is concerned that leasehold homeowners may have been unfairly treated by developers after being given misleading information.

What are they investigating?

According to the Governments report, available here, the CMA are looking into the following:

Mis-selling

Ground rents: developers failing to explain clearly exactly what ground rent is, whether it increases over time, when increases will occur and by how much.

Availability of freehold: people being misled about the availability of freehold properties. For example, the CMA found evidence that some people were told properties on an estate would only be sold as leasehold homes, when they were in fact later sold as freeholds to other buyers.

Cost of the freehold: people being misled about the cost of converting their leasehold to freehold ownership. When buying their home, the CMA found evidence that some people were told the freehold would cost only a small sum, but later down the line the price had increased by thousands of pounds with little to no warning.

Unfair sales tactics: developers using unfair sales tactics – such as unnecessarily short deadlines to complete purchases – to secure a deal, meaning people could feel pressured and rushed into buying properties that they may not have purchased had they been given more time.

Unfair contract terms – ground rents

The use of unfair contract terms that mean homeowners have to pay escalating ground rents, which in some cases can double every 10 years. This increase is built into contracts, meaning people can also struggle to sell their homes and find themselves trapped.

Issues with Retail Price Index (RPI)

Ground rent increases based on the Retail Price Index (RPI) are also a point of interest for CMA. RPI is used to measure price inflation and the CMA is concerned about the fairness of escalating ground rent according to RPI. They suspect that the potential inflation is not always effectively explained by developers when exploring RPI-based ground rent with prospective homeowners. This can lead to people paying a lot more than they originally expected, which is clearly wrong if they have been assured this would not be the case.

Written warnings

The CMA have written to Barratt, Countryside, Persimmon, and Taylor Wimpey outlining its concerns and requiring information.

Possible outcomes of this action include legal commitments from the developers to change the way they conduct business, or if it comes to it, the CMA could take firms to court. All four housing developers are said to have confirmed they will co-operate with the investigation.

As well as the enforcement action, the CMA is also sending letters to a number of other developers, encouraging them to review their practices to make sure they are treating consumers fairly and complying with the law.

Andrea Coscelli, CMA Chief Executive, said:

“It is unacceptable for housing developers to mislead or take advantage of homebuyers. That’s why we’ve launched today’s enforcement action.

Everyone involved in selling leasehold homes should take note: if our investigation demonstrates that there has been mis-selling or unfair contract terms, these will not be tolerated.”

People wishing to provide further evidence regarding the companies named can get in touch via email: leasehold@cma.gov.uk. The CMA is interested in hearing information on either leasehold houses and/or flats, referred to above as leasehold homes.

For further information people can contact the CMA press office via press@cma.gov.uk or on 020 3738 6460.

What do we think?

Deceiving and intentionally misleading others should never be tolerated. We pride ourselves on being totally upfront with our clients when it comes to pricing, information and anything else, so we expect other businesses to act the same way.

Getting on the property ladder is one of the hardest things to achieve in life for most people, so to trick anyone in any way, or to give information that will only turn out to be untrue in the end is unforgivable. Of course, this is an on-going investigation so we will not jump to any conclusions, but we hope that at the end of it some more positive policies might be put in place and more genuine support be given to potential homeowners.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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Wedding bells are ringing! New reforms to offer new options for couples tying the knot

After the difficulties that 2020 has served up to us it is always nice to remember the good times in life, the events that bring families and friends together to celebrate and enjoy each other’s company.

Weddings are up there with the biggest events in life and it appears that they are going to get a legal ‘shake-up’ as the Law Commission has launched a consultation on provisional proposals to reform the law governing how and where couples can get married. The consultation period will run until 3 December 2020 and as far as we can see there is plenty to be excited about.

What is being proposed (pardon the pun)?

The provisional proposals for reform are:

to allow weddings to take place outdoors, for example on beaches, in parks, in private gardens and on the grounds of current wedding venues – this will make it a lot easier for people to organise their venue of choice and is also likely to lead to lower costs due to an increase in options and availability

to allow weddings to take place in a wider variety of buildings (for example in private homes) and on cruise ships

to offer couples greater flexibility over the form their wedding ceremonies will take, enabling them, if they desire, to use a variety of ceremonies (religious and non-religious) to mark their weddings – this is a more modern take on marriage, and will likely be a point of contention for some people.

to simplify the process and remove unnecessary red tape to make it fair to couples, more efficient, and easier to follow, for example, couples will be able to complete the initial stage of giving notice of their intended wedding online or by post, rather than having to do so in person

to provide a framework that could allow non-religious belief organisations (such as Humanists) and/or independent celebrants to conduct legally binding weddings – this is more inclusive and will be of interest to many people who do not follow traditional religions

to ensure that fewer weddings conducted according to religious rites result in a marriage that the law does not recognise at all, and

to provide a power to allow weddings to take place remotely during any future national emergency, such as another pandemic.

Stepping into the future

The main purpose of these proposals is to bring marriage into the 21^st century. It is a wonderful tradition, but one that has been behind the times for a while now. There are too many restrictions and rules that simply do not match up with the modern world.

For example, currently couples have to decide if they want their ceremony to be civil or religious – with no alternative merger option. The majority of wedding ceremonies must occur in a place of worship or secular venue which really limits the options. Limited options lead to higher cost as the places are in such high demand.

What is more, if the couple refuse to observe such rules their marriage may be meaningless in the in the eyes of the law. For an occasion that is supposed to be so happy and positive, there sure are a lot of stuffy rules and regulations in place, stopping people from having the freedom to plan their special day exactly how they want it.

These reforms will look to give couples greater space to manoeuvre when planning their ceremony, and will not punish them for forgoing traditional systems.

Essentially, the welcoming following principles is the aim of the changes:

Fairness and equality

Certainty and Simplicity

Protecting the state’s interest

Respecting individuals’ wishes and beliefs

Removing any unnecessary regulation, so as to increase the choice and lower the cost of wedding venues for couples.

What do we think?

We believe that these potential changes, which are yet to be agreed and finalised, would be good for marriage in general. It allows people to be united together via a ceremony that they are happy with, and is less confined to the past and more in tune with the future. Of course, there are still many people who will enjoy the traditional route of being married in a more traditional way, which is wonderful. The important thing is that there are options available for everyone, and that the law is able to cater to all types of marriage, as each one is as valid as the next if the couple are genuine.

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Want to know what information the Home Office holds about you and how to obtain it?

We all know the feeling of having given something we own to a friend or family member and they take forever to give it back to us. It can be frustrating, and it can often leave us hesitant to loan anything to them again. Well, this same feeling is present when the Home Office are delayed in providing people with their personal information, or ‘profiles’, after a request is made for it.

So, how can we request to have this information returned to us and how can we complain if it takes an unreasonable time to arrive?

What is a Subject Access Request?

Requesting personal information about you that is stored on Home Office records is known as making a Subject Access Request. Requesting the information is free for the person making the request, but the process itself is paid by the tax-payer, which has led the Home Office suggesting that the requester shall take extra care when making the request and ask for what you really need, as what a buffet owner will tell their customers: only take what you can eat.

At the moment, due to COVID-19, the Home Office are not able to provide paper records, but promise to make an announcement when these are available again. We will be sure to notify our readers when this occurs.

What information might a Home Office immigration record contain?

A typical Subject Access Request may provide an individual with access to the following information:

an electronic summary of your immigration history

landing cards

visa applications you submitted from outside of the UK (as part of entry clearance)

Workers Registration Scheme (WRS) information if you are a national of Czechia, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia

Entry and exit into and out of the UK. Your travel history can be provided for the past 5 years if a passport or travel document is submitted for this period.

Getting a bit more specific:

You can get a bit more detailed in your request, but be sure to make yourself crystal clear. The Home Office is capable of making mistakes, especially if the person requesting something from them is in any way vague.

You can request copies of up to 5 single documents, for example:

a list of your applications

a particular decision letter

the outcome of an appeal (appeal determination)

a particular detention progress report

a deportation order

a particular interview record

work permits

Why is this information useful?

A Subject Access Request might be made so that a person can clearly see their immigration history, for example when their visa was granted, which can be helpful if they choose to go and submit a longer Indefinite Leave to Remain application, where certain dates are vital to get correct.

Another reason could be that the person is uncertain of their current immigration status and the options available to them going forward, so they want to use the information to see where they stand.

Further, the Home Office’s file may contain caseworker’s notes, minutes, their internal instructions and other records, which can provide valuable information beyond the decisions they make about a person’s applications or removal. Such information will assist the person in his/her challenge against the Home Office’s decisions, either by way of judicial review or appeal.

Of course, you do not need a specific reason to request this information, it can be for the sake of peace of mind.

How can you make a Subject Access Request?

In order for the Home Office to identify you, and fulfil your requests, you will need to provide the following:

a copy of your photo identification, such as a passport

a letter to give permission for your records to be sent to you, or your representative. This letter must also contain your signature and the sending date

proof of your relationship, if you are applying for a child under 12 (such as a birth certificate)

The photo evidence is particularly important here, as the Home Office match your photograph against their systems to ensure they send personal information to the right person. It is a good way to keep the information safe. So, be sure to send good quality and clear photocopies of your photo I.D, and if that is not available you must send a recent picture of yourself. No original copies are required.

You should have this evidence ready before you start your application.

You can being your Subject Access Request online via this link.

You can also email subjectaccessrequest@homeoffice.gov.uk if you:

have a query about making a subject access request

have a query about a subject access request you have received

How long does it take?

You should hear back from the Home Office about your request within 30 days.

Making a complaint if the information is delayed

Nobody likes to wait around for something to arrive, especially when it is something important, such as personal data.

There are some email addresses you can message to complain about the processing of your data. You can try customer services on subjectaccessreqeust@homeoffice.gov.uk for your initial complaint.

Complaining directly to The Office of the Data Protection Officer (ODPO) is also an option, as they handle breaches in subject rights involving data. You can reach them on dpo@homeoffice.gov.uk and be sure to provide the following:

your reference number

the date the original request was made

information on how you made the request, for example online or by post

You should not be scared or intimidated out of making a complaint, these avenues are in place for a reason and you have every right to use them. It is your data after all, and you are entitled to it.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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September Brings Wave of HUGE Property Law Changes

Some really interesting and important changes to property law are being introduced from September 2020, with a focus on both environmentalism and industrialism being demonstrated. Chancellor Rishi Sunak is bringing in extra funding to promote greener UK homes, while applications for property extensions and rebuilds are also becoming more streamlined in a bid to revitalise town centres, residential areas and high streets.

Home Extensions on the rise – literally!

Upward extensions are getting the greenlight as the government is introducing several new development rights which will allow extra storeys to be added to both residential and commercial properties.

These types of developments will be known as Class AA (enlargement of a dwelling-house by construction of additional storeys), and the purpose of the renovations will be to create more space as families grow, where more people want to live in the same place, or to welcome in older relatives into the home. Building upwards on the same property makes sense as it takes up less space, does not require more land and simply builds on what is already there. The sky is the limit, so to speak!

Class AA developments will allow the following:

Upwards extensions of a maximum of two additional storeys on the uppermost storey of a detached house, where the existing house consists of two storeys or more above ground level; or

A single additional storey above ground level on a detached house which is originally one storey.

In a terrace of two or more houses (which includes semi-detached houses) the construction of up to 2 additional storeys on the uppermost storey of a house of 2 storeys or more is allowed, or

1 additional storey on a house of 1 storey above ground level.

Please note that this legislation is only relevant to houses built after 1 July 1948 and before 28 October 2018. There shall be no conversions of listed buildings or land in their curtilage; scheduled monuments; or buildings within conservation areas. If in doubt, always check.

Class AA will also cover buildings that function as both residential and commercial properties, such as shops, restaurants and cafes, launderettes or offices which also have a housing aspect to them.

Other classes:

There are some other class types to help differentiate between developments. For example, Class AB permits the building of new flats on top of terraced buildings which have similar function to that listed in Class AA (commercial or mixed use).

Class AC is for the development of new residential properties on top of terraced properties that are only themselves used for residential purposes (no commercial use). These new developments can be two storeys high if the original property was at least two storeys already and one storey if the building was originally one storey above ground.

Class AD is the same as Class AC, but refers to detached buildings instead of terraced.

What do we think about this?

It is a positive move and will give small business owners and families the breathing space needed to adapt and evolve as time goes by, adding to their property in a way that does not require more land to be used up. The more housing available, the better. The removal of full planning applications will make the process smoother and quicker to get underway, which makes us think the government is keen to crack on with developments and breathe some new life into areas that may benefit from it.

It is worth remembering that there are still hurdles to overcome when planning such developments, and certain checks that need to be made and officiated by the local planning authority. Such things like flooding checks, contamination risks, transport and highway impacts, effects on neighbouring buildings such as privacy and loss of light amongst other requirements.

There could also be a telecoms company who has rights to the airspace above the building, or issues with ventilation or storage that need to be looked into. Each case must be treated on its own merits, there is no cookie-cutter process in place. Despite the process being streamlined in a big way, there are still a lot of necessary requirements that need to be met.

Our property team is here to offer expert advice and guidance on these issues, always feel free to give us a call on 020 7928 0276 if you have any questions about expanding on your property.

Sunak goes for green!

Homeowners will be eligible to receive thousands of pounds worth of financial incentives and vouchers to insulate their homes, as part of a £2bn scheme to make the UK more energy efficient. The scheme is being called the Green Homes Grant, which has a nice ring to it.

Not only looking at residential housing, the scheme will also include a £1 billion fund to equip schools, hospitals and other public buildings to be more energy efficient.

The scheme will launch this month (September 2020), with online applications for recommended energy efficiency plans, along with details of accredited local suppliers.

How does it work?

The Treasury has said that under the Green Homes Grant, the government will pay at least two-thirds of the cost of home improvements that save energy. So, let’s say a homeowner of a semi-detached or end-of-terrace house installs cavity wall and floor insulation for £4,000 – the homeowner would pay £1,320 while the government would contribute £2,680.

There will be different recommendations and vouchers issued depending on the type of property being insulated. The grant will aim to cover at least two thirds of the cost of improvement, up to £5,000 per household, but in some cases low income households may be able to get the entire cost covered, which could equate to £10,000 worth of work and materials.

The type of improvements made can be varied, from double or triple glazing, insulation and draught proofing, to energy efficient heating controls. There are a lot of possibilities.

Assessment

According to the government’s guidance on this, applicants will need to pass an assessment phase before benefitting from this scheme. You can contact a Green Deal assessor or ask a Green Deal provider to find an assessor for you.

You may have to pay for an assessment. The assessor must tell you the fee in advance.

When you book the assessment

You may be asked if:

you own or rent the property

your home is a listed building, in a conservation area, built before 1900 or constructed in a non-traditional way

there are access issues, such as access to your loft

you can provide bills showing your recent energy use

When the assessor visits

You may be asked:

how many people live in your home

what type of heating and appliances you use

how often you use your heating

what energy-saving measures are already installed

After the visit

You will get a document, called a Green Deal advice report, that contains:

an Energy Performance Certificate (EPC) that rates your home for energy efficiency

an occupancy assessment that measures how much energy you and other occupiers are using

improvements your assessor recommends

an estimate of the money you could save on your annual energy bills

a statement on whether the improvements will pay for themselves through reduced energy costs

A Green Deal advice report is valid for 10 years, or until you make changes or energy saving improvements to the property, for example you build an extension or change the windows.

The actual savings will depend on how much energy you use and the future cost of energy.

After the assessment it will be down to you to decide if you want to go ahead with getting the energy saving work done.

Have question? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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A Rightful Owner Or A Trustee For All?

Written by Stephanie Chiu.

A trust is not a novel concept to many. It is a way of managing a person’s assets. A person (a settlor) places his/her assets into a trust, appointing someone (trustee which can be the person him/herself) to manage the assets for the interest of someone else or even the person him/herself （beneficiary）.

Due to the potential high value involved, when dealing with land/properties, the law normally requests that a trust shall be in writing. Section 53 (1) (b) of the Law of Property Act 1925 states “A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.”

However, if a trust fails to meet the above requirements, what will happen? A recent case Archibald and another v Alexander [2020] EWHC 1621 (Ch) arose in just such a context.

Background

This case was about a family. The property was purchased in the name of the mother with one of the siblings (the defendant). After the mother has passed away, the defendant’s siblings (the claimants) had each claimed a beneficial interest in the property on the basis that the property owned by the defendant was held on trust for the other siblings with the absence of a written trust and registering under the title deeds.

Following the Country Court judgement, it was held that before the purchase of the property in 1997, there was a face to face oral agreement between the mother and the three siblings in 1996 that the property would be purchased in the name of the mother with the defendant as joint tenants, to be held for the mother for life and her three children equally after her death. Based on the agreement made earlier, the judge had decided that the defendant as the surviving legal owner, held the property on constructive trust for herself and her siblings. The defendant appealed the decision.

Issues and decision

The appeal was remotely held via Skype by Justice Fancourt according to the current guidance. The judge dismissed the appeal agreeing that there was a constructive trust. The judge, on the evidence before him concluded that the claimants had relied on the 1996 agreement not seeking to have themselves in the title of the property. The judge also found that it was not necessary for the claimants to have acted to their detriment to prove the existence of such a trust. If a property is transferred to a person only on the basis of their agreement to hold it on trust for someone else, equity will not allow the transferee to rely on the absence of a formal deed of trust and keep the property for herself, a principle established in Rochefoucauld v Boustead [1898] 1 Ch 550.

The decision shows the Courts are willing to uphold informal family arrangements when it would be inequitable for a landowner to deny a claimant an interest in land.

Implication

The judgement clearly makes sense. By its natural meaning, trust is confidence a person holds in another person, which makes the person reliable. Natural justice requests that such person (trustee) shall not abuse his/her position by making personal gains from such trust.

Having said the above, evidence has shown that it is not always easy to prove the existence of such trust. Even it is achievable, it always comes with a price.

We have to say that the claimants in this case have been lucky to be able to prove what they had said. In many other cases, people have failed to do so.

It is clearly advisable to put trust into some form of writing, even when it is between family members.

Still have further queries on this topic or want to know more about trust? Please do contact Lisa’s litigation team.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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A Clearance Of The Past? – How Can You Benefit From the EU Settlement Scheme?

A quick refresher

As many will know, the EU Settlement Scheme has been set up in response to Brexit to allow EU, non-EU EEA and Swiss citizens and their eligible family members living in the UK before the end of the Brexit transition period the opportunity to protect their residence in the UK after this period has ended. The deadline to get on to the EU Settlement Scheme is 30 June 2021 – this will come round sooner than you think so best get applying NOW if you need to.

The EU Settlement Scheme was launched fully at 7.00am on 30 March 2019. It was extended to applications outside the UK on 9 April 2019.

On 24^th August 2020, the Home Office further updated its guidance to caseworkers to family members of a relevant person of Northern Ireland as defined in Annex 1 to Appendix EU to apply for status under the Scheme.

Family first

Family is an important factor in the EU Settlement Scheme, and for some their family will define whether or not they are eligible for the scheme at all. If you were not EEA or Switzerland national yourself, you will need to rely on a certain family relationship with such national to qualify.

The Home Office allows for such family members to apply on the basis of a qualifying relative:

spouse

civil partner

durable partner (unmarried partner whose relationship is akin to marriage or civil partnership, and the applicant holds a relevant document in this capacity)

child under 21 of the EEA citizen or of the spouse or civil partner

dependent child over 21 of the EEA citizen or of the spouse or civil partner

dependent parent of the EEA citizen or of the spouse or civil partner

dependent relative of the EEA citizen or, in some cases, of the spouse or civil partner (and the applicant holds a relevant document in this capacity.)

A more relaxed approach?

Compared to the Home Office’s previous guidance on EEA law applications and the Immigration ( European Economic Area) Regulation 2016, it is our view that the current Home Office guidance contains more generous provisions. It shows that the Home Office is taking a more relaxing approach towards applications under the Scheme. Are they eager to get rid of the legacy of the Brexit?

The areas where the Home Office has made concessions can at least be summarised as follows:

Dependency of parents on adult EEA nationals is assumed, which means if the Home Office does not believe that the parents depend on the qualifying EEA national, they need to provide evidence to counter prove it. Previously, the parents will have to provide evidence to prove dependency.

If dependency is accepted in previous applications or proved in current application, the applicant is not requested to prove it again in current application or applications in the future. In another case, if a person has been granted pre-settled status depending on a relationship with an EEA national, they will be granted settlement regardless of what may happen to the relationship. A person with pre-settled status is almost certain to get settled status, unless he/she is removed from the UK on public policy or public security ground.

EEA nationals who have ceased activity due to retirement, permanent incapacity or having retained a place of residence can apply for settlement, even when they have not accumulated a 5 years’ continuous qualifying residence. Previously, they would have to have 5 years continuous residence.

Family members of EEA nationals who have ceased activity due to death, retirement, permanent incapacity or having retained a place of residence can apply for settlement, even when they have not accumulated a 5 years’ continuous qualifying residence. Previously, they also needed 5 years’ continuous qualifying residence.

EEA nationals or their family members who prove to be victims of domestic abuse in a family relationship with an EEA national can apply for settlement, even if they do not have 5 years’ continuous qualifying residence.

Children under 21 of EEA nationals or their spouses can apply for settlement once their parents have been granted settlement, even if they do not have 5 years’ continuous residence.

Family members of EEA nationals or their family members can apply for settlement if they have retained right of residence even if they have not accumulated 5 years’ continuous residence in the UK. This could include:
- A child of a relevant EEA national (or qualifying British nationals) who has died or ceased to reside in the UK;
- A parent with the custody of the above; and
- A spouse whose marriage with an EEA national has been terminated, but not before it has lasted for no less than 3 years and the parties have resided in the UK for no less than one year.

Applicants with a derivative right in a Zambrano case can apply for settlement after having accumulated 5 years’ continuous qualifying residence. This normally happens where the applicant lives in the UK to look after a British national minor. Previously, such right does not leave to settlement, no matter how long the applicant has lived in the UK.

Applicants with a derivate right in a Chen or Ibrahim/Teixeira case can apply for settlement after having accumulated 5 years’ continuous qualifying residence. This happens where the applicant lives in the UK to look after a non-British EEA minor or has the custody of the minor who depends on the applicant to continue to live in the UK. Previously, such right does not leave to settlement as well, no matter how long the applicant has lived in the UK.

In addition, the guidance also states that the principle of evidential flexibility shall apply in dealing with applications under the scheme. It states that the caseworkers shall take flexible approach and provide at least three opportunities for applicants to provide further evidence if needed.

Preparing the right documentation

It is important that applicants prepare the correct documentation when applying. This includes:

an identity document – your passport, national identity card, biometric residence card or permit

a digital photo – you can take a selfie during the application

your National Insurance number or proof of how long you have lived in the UK

a mobile phone number

an email address

proof of your relationship if you are applying for a child or another family member

evidence the relevant EEA national is exercising his/her EEA treaty rights

If the applicant’s child is an EU, EEA or Swiss citizen, a birth or adoption certificate will be needed to prove their relationship.

If the child is from outside the EU, EEA or Switzerland, their biometric residence card is to be used to prove their identity.

What do we think?

Brexit and the consequences of it is a huge event for the UK, and people who are not originally from the UK and their family members will clearly be the most worried about it. We see this scheme as an essential gateway for people to remain and enter the UK. It can be difficult for people to fully comprehend where they and their family members stand.

While it is a potentially stressful time, the Home Office have allowed for some generous provisions in some cases and we feel that the scheme does provide some reasonable concessions for those who have come to the UK and made it their home.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

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