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 [email protected] 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!

James Cook

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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 [email protected] 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.

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James Cook

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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 [email protected] 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!

James Cook

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Protecting Your Trade Secrets – What We Suggest: A Perception of Celgard LLC v Shenzhen Senior Technology Material

Written by Rosa Huang.

Recently an interim relief is granted by High Court of Justice of UK in a case enforcing the Trade Secrets (Enforcement, etc) Regulations 2018 (“the Trade Secrets Regulations”), Celgard LLC v Shenzhen Senior Technology Material.

What we know about the case

The dispute is between Celgard LLC (“Celgard”), a US company, and Shenzhen Senior Technology Material Co Ltd (“Shenzhen Senior”), a Chinese company, over lithium-ion battery components.

Dr Zhang is a former employee of Celgard. As alleged by Celgard, during Dr Zhang’s employment at Celgard, Dr Zhang had access to valuable trade secrets in regards to the design and manufacture of Celgard’s dry battery separator material, which he disclosed to Shenzhen Senior during his employment thereby enabling production of an infringing competing product by Shenzhen Senior.

Celgard had been in the process of winning a contract with a UK customer, but this contract was won by Shenzhen Senior by undercutting Celgard on price; Shenzhen Senior subsequently delivered the allegedly infringing products to the UK customer after the initial hearing (though before the order of interim relief was made).

The court was convinced that there was a good arguable case under the Trade Secrets Regulations for upholding the interim injunction and therefore granted the injunction against Shenzhen Senior.

What is “Trade Secrets” and how it is protected in the UK

Historically, trade secrets may be protected either through a breach of contract action (breach of obligation of confidentiality), where a non-disclosure agreement exists or can be implied, or a common law action for breach of confidence. The latter is based on the common law principle that, for information received in confidence, a person cannot take unfair advantage of that information or prejudice the person giving the information.

In 2016, the EU adopted Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, which was implemented in the UK via the Trade Secrets Regulations, bringing the protection of trade secrets onto the UK statute book for the first time.

It has been widely believed that the Trade Secrets Regulations is unlikely to have a significant impact in the UK due to the existing UK common law on confidentiality and it is just a codification of English law principles, however, the case of Celgard v Shenzhen Senior Technology Material is changing such position.

This is because in the Celgard LLC v Shenzhen Senior Technology Material, there was not a clear claim under law of confidence (the non-disclosure agreement to which the former employee was subject was governed by US law and the acts complained of appeared to all have taken place outside the UK), but the Trade Secrets Regulations’ recitals provide clear direction in such cases. By seeking interim relief as provided by the Trade Secrets Regulations, trade secrets were effectively protected. The Trade Secrets Regulations therefore seems to provide a potentially easier and more effective route of relief compared to an English claim of breach of confidence.

Let’s see what is “trade secrets” as defined by the Trade Secrets Regulations:

“trade secret” means information which:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question,

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.’

Briefly, in order for information to be protected by the Trade Secrets Regulations, three requirements shall all be fulfilled:

the information is secret, that is, the information should remain hidden from others especially persons within the circles that normally deal with this kind of information;

the information has commercial value because it is secret; and

the information has been subject to “reasonable steps” to keep it secret by the person lawfully in control of the information.

The first two requirements are self- explanatory; as to the third one, however, it suggests that if businesses wish to benefit from the available rights and remedies to protect their trade secrets, they must show that they have already taken reasonable steps to protect the secret. A simple labelling of information a trade secret is unlikely to be enough of itself.

What we suggest

Whilst the meaning of “reasonable steps” will be developed as the courts apply the Trade Secrets Regulations and some uncertainty exists as to how it will be interpreted, it is still clear that there are actions that businesses can take to protect their valuable trade secrets.

Here are some of our suggestions:

Ensure that confidentiality provisions are included in your contracts, such as employment contract, contract with supplier or with client; when collaborating with third parties, enter into Non-Disclosure Agreement (“NDA”) instead and ensure that their terms are suitable for scope of the collaboration;

Develop and implement procedures for the protection and this could include:

mark trade secrets as “confidential”;

Store trade secrets (including electronic information) safely, securely and ensure that access to it is restricted appropriately;

Keep written records of all individuals such as employees and third parties who had access to the information;

Ensure that the relevant policies are in place and available to all employees and that your employees are trained in that respect, and so on.

However, businesses shall also be aware that trade secrets protection is far from straightforward.

Have questions? Get in touch today!

For more information on how we can help in this regard, please feel free to contact us by call on 020 7928 0276, or email into [email protected].

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.

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

James Cook

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Sole Responsibility – How To Prove It?

The issue of sole responsibility frequently arises in visa applications where one parent is settled in the UK while the other one is living outside the UK and has no intention to come to the UK. Or, they may be currently living in the UK, but have no lawful status.

In the above circumstances, if the parent settled in the UK wants to have his/her child/children to migrate to the UK as well, the law requires that he/she should normally have the sole responsibility of the child/children’s upbringing.

Common misconceptions

In our practice, we frequently encounter the following misconceptions:

Some parents take it for granted that since they are settled in the UK, their children should be allowed to settle with them here as well.

This is wrong. In the scenarios listed above, the settled parents will only be able to bring their child/children into the UK if they can prove with evidence that they are looking after the child/children solely, while the other parent does not play any role in the child/children’s life.

Other parents will think that they can prove sole responsibility easily if they have been granted sole custody of the child/children by the Court or in a divorce agreement or consent from the other parent.

This is wrong as well. Unlike family law where birth certificate, marriage certificate or divorce certificate are conclusive evidence to prove the parties’ relationship, in the immigration laws, sole responsibility is an issue of fact. It means that the parents concerned will need to produce evidence to prove that as a matter of facts, they are taking the sole responsibilities of their child/children’s upbringings.

Birth certificates, divorce certificates and child arrangement orders are good evidence, but they are not conclusive evidence, which means that the parents concerned should provide more evidence to prove that they are taking the sole responsibilities on daily basis.

What the Home Office look for…

It should not come as a massive surprise to hear that what the Home Office look for in sole representative cases is simply traits in-line with that of a good parent.

Financial support will be one aspect they focus on, the ability to support the child in a monetary way. However, this is still only one piece of the puzzle.

It will be things that occur during the daily life of being a parent, things that should come naturally and not be difficult to conjure evidence for. Such things as looking out for your child’s best interests, like helping them get their homework done on time and taking a keen interest in any extracurricular activities they may take part in. Similarly, being in contact with teachers and attending parent’s evenings is also important.

As well as this, being in contact with any doctors that your child has seen, and taking them to appointments when they need them is also something the Home Office would be interested in. Not only this, but taking an active role in their health by preparing good quality meals for them, not letting them spend hours on their phones or playing video games, but encourage them to also read and study.

Showing concerns for the relationships that you child builds is also important, such as dissuading them from becoming close to dangerous or criminal types of people, which can become an issue in the teenage years.

Also, if the parent concerned is unable to do this, he/she should ask the grandparents or other family member to carry out such duties on his/her behalf and makes proper arrangements.

How can all this be shown in evidence?

You might be saying to yourself, “this is all well and good, but how can I prove all of this?” It is a reasonable question, as if you want to prove your case, tangible evidence always proves to be much easier. The Home Office is unlikely to accept the applicants’ word unsupported with proof.

Things such as messages via Whatsapp, WeChat, text messages and emails are a good start. These can be between the applicant and the child, or between the applicant and people associated with the child such as teachers and doctors.

As well as this, videos and pictures taken at events involving the child will stand the applicant in good stead. For example, showing them opening presents on their birthday, playing in a school football match, or acting in a school play. It is these types of things that the Home Office will be after.

If you think about it, this kind of evidence should accumulate naturally over time if you want your child/children’s application to have more chance of success.

Need advice? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] 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!

James Cook

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The Law of the Land: Use Classes See Significant Changes!

Planning use classes are the legal framework which determines what a particular property may be used for by its occupants. In England, these are contained within the provision of Town and Country Planning (Use Classes) Order 1987.

On the 21st July 2020, the government published The Town and Country Planning Regulations 2020 which will come into force on the 1st September 2020. Some important changes have been made and new classes introduced, meaning that certain categories now allow different uses of the land, but there will be a transitional period until 31st July 2021 where the former use classes will still apply to land and buildings for the purposes of the GPDO. Until then, people are able to use the land in-line with the old use category or the updated one.

Why the need for the update?

The government considers a complete overhaul necessary to better reflect the diversity of uses found on high streets and in town centres and to provide the flexibility for businesses to adapt and diversify to meet changing demands. This is particularly important at the present time as town centres seek to recover from the economic impact of Coronavirus.

Essentially, as time goes on, new needs and demands arise, and rules on what can happen in certain locations must adapt and change to cater to these needs.

What are the new Use Classes?

Use Class E – Commercial, Business and Service

This use class brings together existing classes A1(shops), A2 (financial and professional services), A3 (restaurants and cafes) and B1 (business) as well as parts of classes D1 (non-residential institutions) and D2 (assembly and leisure) into one single use class to allow for changes of use without the need of planning permission, making things a lot easier. However shops and facilities which are deemed as being important to the local community have been placed into Use Class F2 (Local Community), which we will talk about later.

Use Class F1 – Learning and non-residential institutions

This use class brings together some elements of the educational, non-residential Use Class D1 namely, schools, colleges etc., galleries, museum, public libraries, public hall or exhibition hall and churches etc. It makes sense to have these types of buildings under the same roof, so to speak, as they have many similarities in terms of how people use them and understand them.

Use Class F2 – Local community uses

This one can be thought of as the ‘community conscious’ category. This use class is designed to protect local community assets and include shops smaller than 280 m² and without another shop within 1,000 m², a hall or meeting place for the primary use of the local community (was use class D1), outdoor sport or recreation locations (was D2(e) use class) and swimming pools or skating rinks (was D2(e) use class).

Cinemas, concert halls, pubs, wine bars and takeaways will become a sui generis use (meaning ‘of its own kind’) with no permitted changes.

Benefits and issues

On the whole, these changes are quite positive for most people. Buildings will be able to go from being used as shops, restaurants, cafés, clinics, crèches, banks, offices, light industrial, indoor sports to another use all within the new Use Class E. It is a lot simpler. It will, for example, allow Starbucks to open new branches where previously they needed permission to convert a shop. It will remove the ‘middle man’ from the equation.

On the other hand, some items have been moved to sui generis, that were in one use class. The means that under the new use classes it will no longer be possible to move from a cinema to bingo hall or dance hall.

What do we think?

These changes seem to go further to recognise that a building may be in a number of uses simultaneously or that a building may be used for different things at different times of the day. Changes to another use, or mix of uses, within these classes do not require planning permission, which is a good thing for a lot of people who want to alter or add to the use of a building. Also, bringing certain uses together and allowing movement between them will give businesses enhanced freedom to adapt to changing circumstances and to respond more effectively to the diverse needs of their communities.

For the government legislation on this topic, follow this link.

Need advice? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] 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!

James Cook

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When Is Consent Unreasonably Withheld?

Written by Evveline Loh.

In many contracts, in particular, those dealing with landlord and tenant relationship, if some sort of consent is required from one party to enable the other party to do (or not to do) something, there is normally provision that such consent should not be unreasonably withheld. However, the issue whether consent has been unreasonably withheld or not is usually not easy to determine.

In the very recent case Apache North Sea Ltd v INEOS FPS Ltd, the Commercial Court decided that it was illegitimate and unreasonable to set onerous conditions prior to giving consent upon renegotiation of commercial terms where such terms would provide the consenting party a more enhanced financial advantage or rights which otherwise will not have been entitled under the original terms of the contract.

Background

Apache and INEOS FPS Ltd entered into contract for transportations of hydrocarbons produced by Apache though INEOS pipelines. Within the agreement, there were many attachments. Apache wished to revise attachment F which sets out its estimated production profile for the period January 2021 – December 2040. The clause was tied to a ‘consent provision’. The Commercial Court was invited to interpret the ‘consent provision’ because INEOS purported to impose a pre-condition on such consent by requesting Apache to pay more for their service to ship increased quantities of products.

Judgment

The Commercial Court revisited some of the basic principles of construction of contract in general and then went on to refer to well established landlord and tenant’s disputes case law in relation to the consent provision.

As Lord Briggs JSC’s judgment in the case Sequent Nominees Ltd v Hautford Ltd [2019] UKSC 47, [2020] 1 All ER 1003 states “the correct approach is to construe [the consent provision] so as to discover what, upon its express terms, it permits the landlord to do”, an exercise to not view consent provision terms in isolation.

The Judge further confirmed that even where a contractual provision is subject to the standard of reasonableness, the court must still construe the contract as a whole in order to establish what the consenting party is entitled to do under the relevant clause. Such clause should not re-construct the initial terms negotiated and results in placing one party at a more advantageous position whilst the other party is deprived.

More importantly, the Commercial Court judgment made a re-statement of the general principle when it comes to consent provision. The fact that by imposing such a condition, the consenting party may gain financial advantage which it is previously not entitled to renders the condition illegitimate and unreasonable. A condition may be legitimate to the consenting party if it addresses a legitimate concern whereby the result is compensatory or mitigatory in nature.

Comments

Although many may view that this is related to oil and gas transportation and processing agreement, such issue is widely seen in many commercial contracts and landlord and tenant’s contract. This case serves as an important reminder that:

The refusal to consent is likely to be illegitimate and unreasonable if a condition tied to the consent places one party at a financial advantage or enhance that party’s right when the original terms does not provide for such rights.

On the other hand, a refusal to consent may be legitimate when the condition imposed addresses a legitimate concern and the result arises from such consent is compensatory or mitigatory in nature.

Have any questions? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] for any questions you may have on this topic.

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James Cook

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Moving further into the modern age? Probate applications to go online!

In a world that revolves so much around technology, it is only right that the legal sector keeps up. This is why all probate applications made by solicitors would have to be conducted online under recent proposals from the Ministry of Justice, encouraging practitioners to go step forward into digitisation.

What exactly is probate?

Probate is the process of dealing with the estate of someone who has died, which generally means clearing their debts and distributing their assets in accordance with their will (or the rules of intestacy in a case where a person dies without a will).

People are able to do this themselves, but it can be fairly complicated as there are lots of forms to fill out and gathering of assets to be done. Where the case is more complicated, it is recommended that professionals, such as ourselves, are brought in to help.

Moving forwards

Probate involves a series of steps and in the past it has mostly been a paper based process, and was solely paper based until 2017. However, the government proposes changing non-contentious probate rules to make it mandatory for solicitors and other probate practitioners to move towards online completions.

So far, it has worked…

Online systems have been trialled and tested when it comes to probate applications. Beta versions of the digital systems were met with positive acceptance. The online service for legal professionals was rolled out to be available to all practitioners in October 2019, following the Beta phase’s successful pilot. User feedback shows the majority of users are satisfied with the online service.

User experience, ease of access and faster response times are all part of the government’s plan to make digital applications the norm, relying on technology to create a more effective system for court users and generate efficiencies for the taxpayer.

The hope is that by making these digital systems mandatory, people will adapt to them quicker. A spokesperson from the Ministry of Justice said:

‘Mandating the process will accelerate it and encourage users to adapt and take the necessary steps for the transition while helping to achieve the savings which HM Courts & Tribunals Service needs to deliver in fulfilling the requirements of the investment in the HMCTS reform programme.’

Not too popular yet…

While the trials have been met positively and those using the online system seem to like it, it is not yet the norm. In June this year – despite lockdown – just a fifth of probate applications from solicitors were made online.

However, due to COVID-19 and the desire for a more online focussed legal world, it is expected that this number will soon rise.

What do we think?

Here at Lisa’s Law, we are not afraid of technology, in fact we welcome it. If the system is faster, easier to use, and more eco-friendly than using paper, then we are all for it. Our team of legal professionals already work with an ethos that places sustainability as a high priority. Anything that can be done online with the same ease, and in many cases greater ease and efficiency than on paper, should be considered a positive.

Have questions? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] 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!

James Cook

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Non-molestation orders – A way to free yourself from abuse

People spending a lot of time indoors due to lockdown naturally meant that couples who were having issues previously experienced an amplification of the problems in their relationship. This led to a spike in separations and divorce, which is usually a tough time for the individuals involved and their family members.

What makes this situation even harder is where one of the ex-partners starts to act in hostile or disturbing ways. This type of behaviour is never justified and there are procedures in place to help stop it abruptly. It is vital that nobody feels they must suffer in silence, as these procedures are in place for a reason, and they should be used where appropriate.

What is a non-molestation order?

A non-molestation order is a specific injunction that aims to prevent a partner or former partner from harming you or your children. This means acts of physical violence or the threat of physical violence, any form of harassment or intimidation, as well as psychological abuse. It can also be stalking, or abusive messaging on platforms like Facebook and Instagram.

Who can it be applied to?

It is not something that is limited only to the two people who were previously a couple, in fact, it can apply to the following:

A spouse or ex-spouse

A civil partner or previous civil partner

A fiancé(e) or ex-fiancé(e)

Someone with whom you are living or used to live with

The father or mother of your child, also people who have parental responsibility for your child or grandchild

Someone with whom you have had an intimate personal relationship

A family member

Applying for a non-molestation order

When making an application for a non-molestation order, the applicant can do so without giving any advance notice to the other party. This is to avoid any negative scenarios, including where a person would seek to prevent another from being able to make the application at all.

It is vital to remember that, should the court grant the order, it only becomes effective once the person whom it is made against is made aware of it (typically by personal service, but this is not always the case.)

A copy of the order should be given to local police as well, to make them aware of the problem.

To apply for a Non Molestation Order, the applicant must be able to show that they are ‘associated with the respondent’. This means that the applicant and the respondent must be or have been in a relationship, live together or have lived together or be related to one another.

The applicant will have to demonstrate to the Court that they require protection from the respondent. It is very important that when the issues begin occurring, the applicant calls the police initially. Firstly, this is for the safety of the victim, but it also means the respondent can be prosecuted under criminal law and the behaviour is recorded, which can make things go a lot smoother when applying for the non-molestation order.

How does a non-molestation order protect the applicant?

It is a criminal offence to ignore or break a non-molestation order, which gives it a lot more gravitas as serious sentences can be issued. However applicants have a choice whether the incident is brought back to the family court, or whether they would rather go through the criminal courts. Family court does have power to impose short custodial sentences, and has the added benefit of being a closed court.

Once an order is in place they can ring the police if there is any breach and the perpetrator will be arrested for breaking their order. This should be enough for most people to cease behaving in a threatening way.

Non-molestation orders also forbid abusers from instructing anyone else to harass or intimidate or use violence against the applicant. The order is broken if the abuser damages any of the applicant’s possessions as well. This makes it worth getting an order even if the respondent does not know exactly where the applicant is, as they may damage their things or property.

How long does it last?

It can run for a fixed period or it can last indefinitely; most of the time it is continues to run until it is cancelled by another court order.

What do we think about it?

We believe that when non-molestation orders are used effectively and for the right reasons, they are very important and necessary. It should not take days, weeks or months for people to go for molestation orders, but rather right when the problematic behaviour begins. Your safety is a top priority!

Not sure if you have a strong enough case? We can help you!

We understand that applying for such an order can be very stressful and unpleasant, especially when you feel you are in danger. Our experienced, friendly solicitors can help guide you through it and can tell you how strong your case is, and offer some tips on how it can be made stronger.

Have questions? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] 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!

James Cook

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Possessions Proceedings, Evictions and More – Landlords vs Tenants in the Coronavirus Pandemic

The coronavirus pandemic has had a massive effect on the livelihoods of most of the world’s population. One of the most important things in life is the place you choose to live, and what to do with property that you own. It must be appreciated that renting property during this strange year can bring new and worrying pressures, but this goes both ways. Landlords rely on people paying their rent to make money; those renting will sometimes need a helping hand from their landlords in order to keep a roof over their heads.

For the past few months the UK government have given renters new protections to stop them being evicted, but what options to landlords have and how can they plan for the future?

Residential Tenancies

A landlord must give tenants three months’ notice for all notices served between 26 March 2020 and 30 September 2020 before they can reclaim vacant possession of a property by court proceedings. These dates are subject to review, however, and may be extended. These three months are there to allow the tenant adequate time to find a new living arrangement.

Also, there is a general suspension of enforcement of all possession orders from 27 March 2020 to (currently) 23 August 2020, meaning that landlords are unable to for their tenants to leave via this order for now.

However, this does not mean a landlord is completely forbidden from issuing a possession claim, it can still be done, there is just likely to be a wait before it can be acted on by the Court.

It is also important to remember, from a landlord’s point of view especially, that the changes to residential tenancies implemented by the Coronavirus Act do not invalidate any existing notices of possession served before 25 March 2020. They would, however, need to act before it expires which means it would be best to issue the claim without delay.

What is more, these provisions do not apply to contractual tenancies, licences or tenancies granted in the course of employment. There is also no restrictions in relation to claims against squatters or trespassers.

What about Commercial Tenancies?

Again, landlords will be unable to forfeit a lease and commence possession proceedings for failure to pay rent or other sums, including service charges and insurance rent between 26 March 2020 and (currently) 30 September 2020.

The act applies to tenancies protected by the Landlord and Tenant Act 1954 and to leases which have been ”contracted out” of the protection of the 1954 act. The legislation does not apply to short leases – i.e., leases for less than six months.

The act defines rent as ”any sums a tenant is liable to pay under a relevant business tenancy”. This includes all basic rent and other payments payable in accordance with the terms of the lease such as service charge, insurance and administration charges.

In yet more support for renters, there has also been a conditional ban on using insolvency procedures against companies unable to pay debts due to Covid-19. This includes a temporary ban on presenting winding-up petitions from 27 April through to 30 September 2020, where a company cannot pay rent due to impact of the pandemic and associated infection control measures.

The provisions are not ‘all powerful’

However, the Coronavirus Act does not waive or even suspend the tenant’s liability to pay rent under a lease. Tenants should continue to make payment (if possible) – the act simply prohibits forfeiture for the given period of time.

Landlords will be able to forfeit leases for both unpaid sums during the moratorium period and for any unpaid sums that become due after it is lifted (this includes any accrued interest).

The act only prevents landlords from forfeiting leases for rent arrears; leases can still be forfeited where a tenant breaches other covenants contained in the lease, such as tenants’ duties to maintain fixtures, repairs and fittings etc.

Unlike the rules for residential tenancies, commercial lease provisions will apply to existing proceedings that have commenced before the moratorium period in relation to rent arrears. No orders for possession will be granted by the court before the end of the period.

Other solutions for the recovery of rent such as pursuing guarantors (including any liable under Authorised Guarantee Agreements) and withdrawing from a rent deposit are still available to landlords.

Service Charges?

One additional point to note is that landlords may be incurring service charge outlays during the moratorium period. In these circumstances, claims to recover service charges can still be issued and judgements obtained.

What are the courts doing?

The courts remain open and claims are being processed in the normal fashion. Courts are now adjusting and utilising technology to ensure hearings continue to take place.

What can landlords do in the meantime?

Act now! Serve the notice if you have to, issue the claim if you have to, now! Bear in mind the suspension is not a ban, it is a stay, so when it is over, you will be in a queue. So you need to get in there quick!

While it is judicious to remain mindful of the challenges many tenants will be facing due to the Covid-19 lockdown, landlords should not be discouraged from continuing to exercise pre-action obligations they would usually carry out.

Doing this puts a landlord one step ahead and at the front of a potentially long list of creditors once debts can be pursued. A landlord can still issue an appropriate notice for possession and start the process of eviction, once the moratorium has expired.

Seek legal advice

Obtaining legal advice and taking a proactive approach now could prevent expensive, time-consuming litigation in the future. We are open and ready to take on your case today!

Have questions? We are here to help!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to [email protected] 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!

James Cook

See Full Bio

News and Insights

Home Extensions on the rise – literally!

What do we think about this?

Sunak goes for green!

How does it work?

Assessment

Have question? We are here for you!

Background

Issues and decision

Implication

Have questions? We are here for you!

A quick refresher

Family first

A more relaxed approach?

Preparing the right documentation

What do we think?

Have questions? We are here for you!

What we know about the case

What is “Trade Secrets” and how it is protected in the UK

What we suggest

Have questions? Get in touch today!

Common misconceptions

What the Home Office look for…

How can all this be shown in evidence?

Need advice? We are here to help!

Why the need for the update?

What are the new Use Classes?

Benefits and issues

What do we think?

Need advice? We are here to help!

Background

Judgment

Comments

Have any questions? We are here to help!

What exactly is probate?

Moving forwards

So far, it has worked…

Not too popular yet…

What do we think?

Have questions? We are here to help!

What is a non-molestation order?

Who can it be applied to?

Applying for a non-molestation order

How does a non-molestation order protect the applicant?

How long does it last?

What do we think about it?

Not sure if you have a strong enough case? We can help you!

Have questions? We are here to help!

Residential Tenancies

What about Commercial Tenancies?

The provisions are not ‘all powerful’

Service Charges?

What are the courts doing?

What can landlords do in the meantime?

Seek legal advice

Have questions? We are here to help!

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