The Landlord and Tenant Act 1954 gives businesses “Security of Tenure”. Under this Act, commercial tenants are provided with the right to a lease renewal and the ability to remain in occupation at the property at the end of the contractual term of the lease on the same terms as the old lease. This applies if the lease is “inside the Act” but is, however, subject to reasonable modernisation and at a new market rent. The Act ensures that commercial tenants cannot be evicted without the landlord, following the requirements of the Act.

On a broad scale, a tenant located in premises where a business is being carried out has security of tenure even if the term of the lease comes to an end. Although the fixed term lease has ended, tenants of the business have the right to:

• remain in occupation at the end of the contractual term of a lease
• apply through a court for the grant of a new lease

 

Landlord and Tenant Act 1954 – When does it apply?

The Act only applies to leases granted to tenants over business premises as opposed to residential properties. The Act must be occupied by virtue of a lease instead of a licence. There are some situations where this Act does not apply. These include but are not limited to:

• Contracting out of the Act
• Licences
• Tenancies at Will
• Where the tenant’s total period of occupation does not exceed 12 months.
• Agricultural tenancies
• Tenancies where the term of the lease is for six months or less (unless the lease allows for an extension)

Tenancies excluded from the Act

If the landlord and tenant have agreed that the lease should confer no security of tenure, then the relevant steps must be taken. Before granting the lease or exchanging agreements for the lease, the landlord must ensure the following with the tenant:

• the tenant must respond by making a declaration in a prescribed form, outlining that they understand the effect of the lease being excluded from the protection of the Act.
• the landlord must serve a formal notice on the tenant in a prescribed form;

If a lease has been excluded from protection of the Act, then it will expire on the term that is stated in the lease (or earlier if any break right is exercised). It will not benefit from the continuation tenancy conferred by the Act. The tenant will not have the right to carry on their business from the premises or to remain there.

Unlike a lease with the security of tenure under the Act, the landlord has complete discretion as to whether he grants a new lease to the tenant and is not required to give any reason for refusing to grant a lease or explain why he wants the premises back.

If the landlord is willing to grant a new lease, there is no presumption that this will follow the terms of the previous lease.

There are some cases where it is possible to exclude leases from the protection provided by the Act, it is common for new office leases to be granted outside of the Act, but for these to apply, some requirements must be followed:

• Landlords must give the tenant notice confirming that the Act will not protect the proposed lease
• The tenant should acknowledge their agreement to exclude the Act before the new lease has been granted.
• If notice from the landlord is served less than 14 days before the lease has been granted, the tenant’s agreement must be in the form of a statutory declaration.
• The agreement must include a statement that ‘relevant’ sections of the Act should have been excluded.

How is a tenancy ended under the Act?

To terminate a lease with security of tenure, the most common notices bringing an existing, protected business tenancy to an end are:

• Both section 25 and section 26 notices must give a minimum of six months, and a maximum of twelve months’ notice.
• Once the landlord has served a section 25 notice, the tenant cannot serve a section 26 notice and visa-versa.

How does a landlord or tenant request a lease renewal?

If a landlord or tenant requests a lease renewal but on new terms, the landlord must serve a section 25 notice followed by a court application. If the lease is approaching the end of its term, a tenant can commence renewal negotiations and serve a “section 26 notice”, a request for new tenancy.

It is important to note that if neither party serves a notice prior to the expiry of the fixed term, the lease will be held over. Subsequently, the lease will continue within the existing terms until either the landlord or tenant communicates that they wish to end the tenancy or seek a new tenancy on the updated terms.

Expert Legal Advice 

The Landlord and Tenant Act 1954, involves strict rules that must be followed, and commercial landlords and tenants should always seek legal advice to determine their legal rights or obligations.

We can provide advice in relation to lease renewals, working with you to assess risks, costs and options to determine the right solution for you. At Eric Robinson, we have over 60 years of experience and high standards of service in law. Our offices are in locations all over Hampshire and Surrey.

Our dedicated lawyers at our established law firm will provide you with the utmost professional legal advice and will ensure we provide you the best quality advice presented in a straight-talking ethos and in jargon-free style so it is as understandable as possible.

Commercial leases can be very long and complex documents, and you should make sure that you get the best legal advice before entering into one. We are experienced in negotiating favourable terms on behalf of both landlords and tenants, and as part of our service we explain very clearly the implications of every clause.

Download our Top 10 Tips Guide for Buying and Leasing Commercial Property here and our Top 10 Tips for Commercial Property Dispute Resolution here.

The Landlord and Tenant Act 1954 gives businesses “Security of Tenure”. Under this Act, commercial tenants are provided with the right to a lease renewal and the ability to remain in occupation at the property at the end of the contractual term of the lease on the same terms as the old lease. This applies if the lease is “inside the Act” but is, however, subject to reasonable modernisation and at a new market rent. The Act ensures that commercial tenants cannot be evicted without the landlord, following the requirements of the Act.

On a broad scale, a tenant located in premises where a business is being carried out has security of tenure even if the term of the lease comes to an end. Although the fixed term lease has ended, tenants of the business have the right to:

• remain in occupation at the end of the contractual term of a lease
• apply through a court for the grant of a new lease

 

Landlord and Tenant Act 1954 – When does it apply?

The Act only applies to leases granted to tenants over business premises as opposed to residential properties. The Act must be occupied by virtue of a lease instead of a licence. There are some situations where this Act does not apply. These include but are not limited to:

• Contracting out of the Act
• Licences
• Tenancies at Will
• Where the tenant’s total period of occupation does not exceed 12 months.
• Agricultural tenancies
• Tenancies where the term of the lease is for six months or less (unless the lease allows for an extension)

Tenancies excluded from the Act

If the landlord and tenant have agreed that the lease should confer no security of tenure, then the relevant steps must be taken. Before granting the lease or exchanging agreements for the lease, the landlord must ensure the following with the tenant:

• the tenant must respond by making a declaration in a prescribed form, outlining that they understand the effect of the lease being excluded from the protection of the Act.
• the landlord must serve a formal notice on the tenant in a prescribed form;

If a lease has been excluded from protection of the Act, then it will expire on the term that is stated in the lease (or earlier if any break right is exercised). It will not benefit from the continuation tenancy conferred by the Act. The tenant will not have the right to carry on their business from the premises or to remain there.

Unlike a lease with the security of tenure under the Act, the landlord has complete discretion as to whether he grants a new lease to the tenant and is not required to give any reason for refusing to grant a lease or explain why he wants the premises back.

If the landlord is willing to grant a new lease, there is no presumption that this will follow the terms of the previous lease.

There are some cases where it is possible to exclude leases from the protection provided by the Act, it is common for new office leases to be granted outside of the Act, but for these to apply, some requirements must be followed:

• Landlords must give the tenant notice confirming that the Act will not protect the proposed lease
• The tenant should acknowledge their agreement to exclude the Act before the new lease has been granted.
• If notice from the landlord is served less than 14 days before the lease has been granted, the tenant’s agreement must be in the form of a statutory declaration.
• The agreement must include a statement that ‘relevant’ sections of the Act should have been excluded.

How is a tenancy ended under the Act?

To terminate a lease with security of tenure, the most common notices bringing an existing, protected business tenancy to an end are:

• Both section 25 and section 26 notices must give a minimum of six months, and a maximum of twelve months’ notice.
• Once the landlord has served a section 25 notice, the tenant cannot serve a section 26 notice and visa-versa.

How does a landlord or tenant request a lease renewal?

If a landlord or tenant requests a lease renewal but on new terms, the landlord must serve a section 25 notice followed by a court application. If the lease is approaching the end of its term, a tenant can commence renewal negotiations and serve a “section 26 notice”, a request for new tenancy.

It is important to note that if neither party serves a notice prior to the expiry of the fixed term, the lease will be held over. Subsequently, the lease will continue within the existing terms until either the landlord or tenant communicates that they wish to end the tenancy or seek a new tenancy on the updated terms.

Expert Legal Advice 

The Landlord and Tenant Act 1954, involves strict rules that must be followed, and commercial landlords and tenants should always seek legal advice to determine their legal rights or obligations.

We can provide advice in relation to lease renewals, working with you to assess risks, costs and options to determine the right solution for you. At Eric Robinson, we have over 60 years of experience and high standards of service in law. Our offices are in locations all over Hampshire and Surrey.

Our dedicated lawyers at our established law firm will provide you with the utmost professional legal advice and will ensure we provide you the best quality advice presented in a straight-talking ethos and in jargon-free style so it is as understandable as possible.

Commercial leases can be very long and complex documents, and you should make sure that you get the best legal advice before entering into one. We are experienced in negotiating favourable terms on behalf of both landlords and tenants, and as part of our service we explain very clearly the implications of every clause.

Download our Top 10 Tips Guide for Buying and Leasing Commercial Property here and our Top 10 Tips for Commercial Property Dispute Resolution here.

Equal Pay Claims –Stacey Macken v BNP Paribas London Branch is Ordered to Publish Salaries, Bonuses and Pension Contributions

Stacey Macken v BNP Paribas London Branch – Published 11^th February 2022

On 14^th January 2022, the Employment Tribunal, in a landmark case on the subject of equal pay, handed down its remedy judgment in respect of its findings in a claim brought by Ms Macken, a Financial Product Manager who worked for BNP Paribas, a bank. In the first decision of its kind, the ET ordered the bank to perform an Equal Pay Audit, under regulation 2, Equal Pay Audit Regulations 2014.

Ms Macken brought the following claims against her employer; equal pay, direct sex discrimination, victimisation, protected disclosure detriment and harassment, suing them for the sum of £4million pounds.

BNP PARIBAS, in 2019, were found by the Employment Tribunal to have:

1. On the grounds of sex, paid Ms Macken less than her male counterpart with the same job title.
2. Directly discriminated against Ms Macken, on the grounds of sex, and
3. Victimised Ms Macken after she had raised concerns about unequal pay and sex discrimination.

It was reported that Ms Macken was awarded a sum in excess of £2million pounds, including an uplift for BNP Paribas’ unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”).

The findings in 2019 served as a warning for many in the financial services sector. The judgment was highly critical of the pay culture within the sector, and particularly noted its rejection of BNP PARIBAS’s “implicit suggestion that banks are somehow in a special position and that [the Tribunal] should accept as a fact of life that they have opaque pay structures”.

The case was widely reported in the media and detailed the poor treatment of Ms Macken by one of her bosses, who would frequently dismiss questions that she asked with, “Not now, Stacey”, which became somewhat of a catchphrase used sarcastically amongst her colleagues. Another boss would regale her with stories about his friend’s sexual fantasies involving sex workers.

The media also detailed how whilst Macken was paid £120,000, her male counterpart was recruited shortly afterwards for £160,000. The same male counterpart was paid seven times the £33,000 in bonuses paid to Macken.

BNP PARIBAS sought to change their pay practices and corporate culture by instituting a remediation programme including:

1.Undertaking an annual ‘equal pay review’.

2. Overhauling its recruitment and performance appraisal practices
3. Reviewing job descriptions and hierarchies across the company
4. Requiring staff to undertake further training.

In doing so, BNP Paribas argued that it understood the necessary action it needed to take, without the need for an equal pay audit; however, the Tribunal ordered that despite these measures, an equal pay audit must be undertaken and published by June 2022. BNP PARIBAS’s pay practice was noted by the ET to have fallen significantly below the statutory guidance on equal pay, so much so that it was deemed “logical” that the issue would not be isolated to Ms Macken.

The ET also deemed the bank’s equal pay review process insufficient in that it failed to include bonus payments, despite the 2019 findings regarding direct sex discrimination in setting Ms Macken’s bonuses and the review contained virtually no information on the methodology applied or the approach taken to analyse pay inequality. Therefore, an Equal Pay Audit was ordered.

 

What Must the Equal Pay Audit Cover?

The equal pay audit will be undertaken on anyone who was an employee at BNP Paribas between 1 January and 31 December 2021, including those employees who only worked part of the year, or who were absent due to illness during that time.

The audit must include the compilation of data relating to the entirety of those employees’ monetary compensation, including:

1. Base pay
2. Discretionary bonuses
3. Pension contributions
4. Allowances

BNP Paribas is then legally obliged to identify the disparity in pay between its male and female employees and explain the reasons for that disparity. Where a potential breach of the Equal Pay Regulations is identified, they must detail the reasons for that breach and set out how they propose to rectify this and prevent it from occurring in the future.

If further breaches are identified, then the bank must equalise the pay between their male and female employees, or it risks further claims being brought by female employees.

The bank now also faces the risks associated with the publication of the detailed analysis of its employees’ remuneration, which will allow other competitors to ensure they are offering better payment terms at a time when recruitment and retention is already difficult. It will also allow employees to see exactly what terms their comparators are being paid, risking further claims, and reaffirms that the bank has broken the law, causing reputational damage and affecting employee morale and commitment to the employer.

How can employers protect themselves against cases of this type?

When deciding upon and reviewing pay, employers should ensure they are considering the statutory code of practice regarding equal pay and review their employees’ pay via their own internal audit on a regular basis.

Transparent pay practices and clear guidance on the criteria for pay progression would also reduce the risk of facing an Equal Pay Audit in the future.

Specialist Employment Law Solicitors

If you’d like to find out anything more about this article, we’ll be happy to help. Harinder Sangha is a Senior Solicitor in Eric Robinson’s Employment Department. Harinder can be contacted by email: harinder.sangha@ericrobinson.co.uk

 

Buying a new build and how it differs from regular conveyancing

Buying a new build home is incredibly exciting, but it does come with a unique set of challenges. The process can be complex and daunting, especially when you are required to pay an upfront reservation fee and agree on a purchase price on a home that may not yet have been built by the house builder. As a buyer in this environment, pressure can mount, especially when the developer is pushing you to meet very short exchange deadlines coupled with the threat of the loss of your reservation fees. There are also multiple and unique steps relevant to these transactions, such as building regulations approvals, planning permission and planning regulations, as well as NHBC certificates.

The process of buying a new build home can lead to many questions arising, and the conveyancing team  at Eric Robinson are experts at coordinating new build purchases, especially those that are dependent upon the sale of an existing property. We have put together this article to give you a run-through of the process of buying a new-build and how it differs from regular conveyancing. We also cover how you can avoid any further complications and issues from arising. For further information, do not hesitate to get in touch with the Eric Robinson conveyancing team by calling 02380 218000 or visiting our new build page.

Why is conveyancing more complex for a new build?

The process of buying a new build home is more complicated than other types of conveyancing because there are more risks of things going wrong when it comes to a new build. Some of these issues could include:

• Homes not being built to the standard or accordance with the original plans
• Non-compliance with the planning regulations
• Developers failing to complete arrangements for the surrounding areas, e.g. roads and sewers
• NHBC inspections negligence

The mindful and experienced conveyancing team at Eric Robinson can help you handle these issues that can arise when purchasing a new build property. We can help you identify the issues mentioned above and also ensure the contract has your best interests at heart. When working with Eric Robinson Solicitors, we aim to reach your desired outcome. We will seek to ensure that your deposit is  protected and that there is a ‘long-stop’ completion date. If the developer fails to have the property finished by this completion date, then you have the right to cancel the contract and have your deposit returned to you.

It is also common for the developers’ sales team and their solicitor to rush the completion date so that it reflects better on them, showing that they have hit their targets. Our quality solicitors will not give in to this pressure and they will seek to ensure that the transaction is ready for completion before agreeing to any completion date.

What is the process of buying a new build property?

The overall process of buying a new build property goes as follows:

Appoint a conveyancing solicitor→ Getting your mortgage → Paying your deposit→ Exchanging contracts

Appointing your conveyancing solicitor:

By appointing one of our experienced conveyancing solicitors, you will receive the relevant help with the inevitable legal side of buying a home. They do a lot of the paperwork and communication for you in order to ensure the process runs smoothly.

Getting your mortgage:

This is the process of getting your finances together to put towards your mortgage. If at any point you are feeling nervous about securing your mortgage for a new build or you feel like you may have some difficulty in paying the complete mortgage, there are a few schemes that can help you, especially if you are a first-time buyer. Examples of these are the Help to Buy Equity Loan and the London Help to Buy scheme. They are both aimed exclusively at new builds. There are shared ownership schemes available for new builds, which can be a helpful first step if you cannot afford to buy a home outright.

Paying your deposit:

Most commonly, your deposit will be 10% of the overall price of the home, but with new builds, this can be a bit more. A developer can request anywhere between a 10% and 30% deposit, with an agreement to pay the remainder upon completion. They will normally want proof from the lender that your mortgage is guaranteed.

Exchanging contracts:

Once you exchange contracts, this is when the whole process becomes official. You then pay your deposit which can then be lost if you back out of this agreement by this point. You normally have 28 days between reserving your home and exchange, and this process can come around quite quickly, so you must ensure you do your due diligence beforehand.

There are usually new build warranties, like NHBC or Premier Guarantee. This helps you to protect your deposit after the exchange should anything go wrong with the building development. Your conveyancing specialist should help you go through this.

Is the legal process for buying a new build property different to buying a non-new build property?

The simple answer is the process is identical. When buying a new build property, your solicitor is required to thoroughly investigate the property to ensure that all legal aspects are in order. The only  difference is that because the property has not previously been owned by someone, the focus will be on ensuring that the site and/or development has been properly configured and set up. This will involve checking things such as rights of access and sewerage.

How can Eric Robinson Solicitors help me reserve my new build property?

A good conveyancing solicitor will seamlessly guide buyers through the new build conveyancing process, and they will ensure that the exchange of contracts occurs in accordance with the requirements of the house builders reservation agreement.

Our team of specialist lawyers offer a bespoke service to parties purchasing new build properties so that they achieve the stringent demands set by developers.

There are many matters that will need to be resolved prior to your completion date. These can include considerations such as whether the estates’ roads are finished, whether the buildings will attract future management fees to maintain communal areas, or whether there is a risk that builds will be delayed by weather conditions. Your mortgage lender could also raise issues over planning permissions or your build guarantee. Should the need arise, we will seek to vary your contract price, and we will look to amend any agreements that do not work in your favour.

For further information, do not hesitate to get in touch with the Eric Robinson conveyancing team by calling 02380 218000 or visiting our new build page.

Equal Pay Claims –Stacey Macken v BNP Paribas London Branch is Ordered to Publish Salaries, Bonuses and Pension Contributions

Stacey Macken v BNP Paribas London Branch – Published 11^th February 2022

On 14^th January 2022, the Employment Tribunal, in a landmark case on the subject of equal pay, handed down its remedy judgment in respect of its findings in a claim brought by Ms Macken, a Financial Product Manager who worked for BNP Paribas, a bank. In the first decision of its kind, the ET ordered the bank to perform an Equal Pay Audit, under regulation 2, Equal Pay Audit Regulations 2014.

Ms Macken brought the following claims against her employer; equal pay, direct sex discrimination, victimisation, protected disclosure detriment and harassment, suing them for the sum of £4million pounds.

BNP PARIBAS, in 2019, were found by the Employment Tribunal to have:

1. On the grounds of sex, paid Ms Macken less than her male counterpart with the same job title.
2. Directly discriminated against Ms Macken, on the grounds of sex, and
3. Victimised Ms Macken after she had raised concerns about unequal pay and sex discrimination.

It was reported that Ms Macken was awarded a sum in excess of £2million pounds, including an uplift for BNP Paribas’ unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”).

The findings in 2019 served as a warning for many in the financial services sector. The judgment was highly critical of the pay culture within the sector, and particularly noted its rejection of BNP PARIBAS’s “implicit suggestion that banks are somehow in a special position and that [the Tribunal] should accept as a fact of life that they have opaque pay structures”.

The case was widely reported in the media and detailed the poor treatment of Ms Macken by one of her bosses, who would frequently dismiss questions that she asked with, “Not now, Stacey”, which became somewhat of a catchphrase used sarcastically amongst her colleagues. Another boss would regale her with stories about his friend’s sexual fantasies involving sex workers.

The media also detailed how whilst Macken was paid £120,000, her male counterpart was recruited shortly afterwards for £160,000. The same male counterpart was paid seven times the £33,000 in bonuses paid to Macken.

BNP PARIBAS sought to change their pay practices and corporate culture by instituting a remediation programme including:

1.Undertaking an annual ‘equal pay review’.

2. Overhauling its recruitment and performance appraisal practices
3. Reviewing job descriptions and hierarchies across the company
4. Requiring staff to undertake further training.

In doing so, BNP Paribas argued that it understood the necessary action it needed to take, without the need for an equal pay audit; however, the Tribunal ordered that despite these measures, an equal pay audit must be undertaken and published by June 2022. BNP PARIBAS’s pay practice was noted by the ET to have fallen significantly below the statutory guidance on equal pay, so much so that it was deemed “logical” that the issue would not be isolated to Ms Macken.

The ET also deemed the bank’s equal pay review process insufficient in that it failed to include bonus payments, despite the 2019 findings regarding direct sex discrimination in setting Ms Macken’s bonuses and the review contained virtually no information on the methodology applied or the approach taken to analyse pay inequality. Therefore, an Equal Pay Audit was ordered.

 

What Must the Equal Pay Audit Cover?

The equal pay audit will be undertaken on anyone who was an employee at BNP Paribas between 1 January and 31 December 2021, including those employees who only worked part of the year, or who were absent due to illness during that time.

The audit must include the compilation of data relating to the entirety of those employees’ monetary compensation, including:

1. Base pay
2. Discretionary bonuses
3. Pension contributions
4. Allowances

BNP Paribas is then legally obliged to identify the disparity in pay between its male and female employees and explain the reasons for that disparity. Where a potential breach of the Equal Pay Regulations is identified, they must detail the reasons for that breach and set out how they propose to rectify this and prevent it from occurring in the future.

If further breaches are identified, then the bank must equalise the pay between their male and female employees, or it risks further claims being brought by female employees.

The bank now also faces the risks associated with the publication of the detailed analysis of its employees’ remuneration, which will allow other competitors to ensure they are offering better payment terms at a time when recruitment and retention is already difficult. It will also allow employees to see exactly what terms their comparators are being paid, risking further claims, and reaffirms that the bank has broken the law, causing reputational damage and affecting employee morale and commitment to the employer.

How can employers protect themselves against cases of this type?

When deciding upon and reviewing pay, employers should ensure they are considering the statutory code of practice regarding equal pay and review their employees’ pay via their own internal audit on a regular basis.

Transparent pay practices and clear guidance on the criteria for pay progression would also reduce the risk of facing an Equal Pay Audit in the future.

Specialist Employment Law Solicitors

If you’d like to find out anything more about this article, we’ll be happy to help. Harinder Sangha is a Senior Solicitor in Eric Robinson’s Employment Department. Harinder can be contacted by email: harinder.sangha@ericrobinson.co.uk

 

Buying a new build and how it differs from regular conveyancing Buying a new build home is incredibly exciting, but it does come with a unique set of challenges. The process can be complex and daunting, especially when you are required to pay an upfront reservation fee and agree on a purchase price on a home that may not yet have been built by the house builder. As a buyer in this environment, pressure can mount, especially when the developer is pushing you to meet very short exchange deadlines coupled with the threat of the loss of your reservation fees. There are also multiple and unique steps relevant to these transactions, such as building regulations approvals, planning permission and planning regulations, as well as NHBC certificates. The process of buying a new build home can lead to many questions arising, and the conveyancing team  at Eric Robinson are experts at coordinating new build purchases, especially those that are dependent upon the sale of an existing property. We have put together this article to give you a run-through of the process of buying a new-build and how it differs from regular conveyancing. We also cover how you can avoid any further complications and issues from arising. For further information, do not hesitate to get in touch with the Eric Robinson conveyancing team by calling 02380 218000 or visiting our new build page. Why is conveyancing more complex for a new build? The process of buying a new build home is more complicated than other types of conveyancing because there are more risks of things going wrong when it comes to a new build. Some of these issues could include:

• Homes not being built to the standard or accordance with the original plans
• Non-compliance with the planning regulations
• Developers failing to complete arrangements for the surrounding areas, e.g. roads and sewers
• NHBC inspections negligence

The mindful and experienced conveyancing team at Eric Robinson can help you handle these issues that can arise when purchasing a new build property. We can help you identify the issues mentioned above and also ensure the contract has your best interests at heart. When working with Eric Robinson Solicitors, we aim to reach your desired outcome. We will seek to ensure that your deposit is  protected and that there is a ‘long-stop’ completion date. If the developer fails to have the property finished by this completion date, then you have the right to cancel the contract and have your deposit returned to you. It is also common for the developers’ sales team and their solicitor to rush the completion date so that it reflects better on them, showing that they have hit their targets. Our quality solicitors will not give in to this pressure and they will seek to ensure that the transaction is ready for completion before agreeing to any completion date. What is the process of buying a new build property? The overall process of buying a new build property goes as follows: Appoint a conveyancing solicitor→ Getting your mortgage → Paying your deposit→ Exchanging contracts Appointing your conveyancing solicitor: By appointing one of our experienced conveyancing solicitors, you will receive the relevant help with the inevitable legal side of buying a home. They do a lot of the paperwork and communication for you in order to ensure the process runs smoothly. Getting your mortgage: This is the process of getting your finances together to put towards your mortgage. If at any point you are feeling nervous about securing your mortgage for a new build or you feel like you may have some difficulty in paying the complete mortgage, there are a few schemes that can help you, especially if you are a first-time buyer. Examples of these are the Help to Buy Equity Loan and the London Help to Buy scheme. They are both aimed exclusively at new builds. There are shared ownership schemes available for new builds, which can be a helpful first step if you cannot afford to buy a home outright. Paying your deposit: Most commonly, your deposit will be 10% of the overall price of the home, but with new builds, this can be a bit more. A developer can request anywhere between a 10% and 30% deposit, with an agreement to pay the remainder upon completion. They will normally want proof from the lender that your mortgage is guaranteed. Exchanging contracts: Once you exchange contracts, this is when the whole process becomes official. You then pay your deposit which can then be lost if you back out of this agreement by this point. You normally have 28 days between reserving your home and exchange, and this process can come around quite quickly, so you must ensure you do your due diligence beforehand. There are usually new build warranties, like NHBC or Premier Guarantee. This helps you to protect your deposit after the exchange should anything go wrong with the building development. Your conveyancing specialist should help you go through this. Is the legal process for buying a new build property different to buying a non-new build property? The simple answer is the process is identical. When buying a new build property, your solicitor is required to thoroughly investigate the property to ensure that all legal aspects are in order. The only  difference is that because the property has not previously been owned by someone, the focus will be on ensuring that the site and/or development has been properly configured and set up. This will involve checking things such as rights of access and sewerage. How can Eric Robinson Solicitors help me reserve my new build property? A good conveyancing solicitor will seamlessly guide buyers through the new build conveyancing process, and they will ensure that the exchange of contracts occurs in accordance with the requirements of the house builders reservation agreement. Our team of specialist lawyers offer a bespoke service to parties purchasing new build properties so that they achieve the stringent demands set by developers. There are many matters that will need to be resolved prior to your completion date. These can include considerations such as whether the estates’ roads are finished, whether the buildings will attract future management fees to maintain communal areas, or whether there is a risk that builds will be delayed by weather conditions. Your mortgage lender could also raise issues over planning permissions or your build guarantee. Should the need arise, we will seek to vary your contract price, and we will look to amend any agreements that do not work in your favour. For further information, do not hesitate to get in touch with the Eric Robinson conveyancing team by calling 02380 218000 or visiting our new build page.

Financial Settlement Disputes – What is the process?

When going through divorce proceedings or ending a civil partnership, you and your ex-partner will need to agree on how you will separate your finances and property and make financial arrangements for children, which is called the financial settlement. A financial settlement will set out how you are going to divide all your current financial affairs, including savings, investments and pensions, and if there are going to be regular maintenance payments to help with children or living expenses. If you can agree on future financial obligations and how to split your money and property without the involvement of court hearings, whether directly, through lawyers or through a form of mediation, it will be best for all involved. Involving the courts in financial disputes will be more costly, lengthy and can further impact an already stressful situation.

Making a financial settlement legally binding

If you and your ex-partner can agree on the details of your financial settlement and how you will divide money and property, you will need to apply for a consent order to make it legally binding. But what happens if you are unable to agree?

What happens when you cannot agree on a financial settlement?

If communication breaks down, or you are unable to agree on everything, you can make a Financial Remedy Application, now known as a Financial Order (also known as the ‘contested’ route or an ‘ancillary relief order’). The Financial Remedy proceeding is the process that helps settle financial disputes between divorcing couples in court.

You and your former partner will need to provide all the evidence, including the details of the means and assets, and the court can decide upon an appropriate settlement.

Here are some of the steps involved in a financial remedy proceeding:

Before the Application

Prior to the actual application, the parties are encouraged to follow a pre-application protocol. This protocol outlines the ways in which the parties should provide the required information from and to each other before making the initial application. The idea behind the protocol is to ensure that the relevant efforts have been made to settle issues before taking them to court. In the instance of no possible progress being made, unless there is court intervention, the application can then be proceeded with.

Application to the court

Once you have made your application, the court will provide a timetable, which will include directives for all parties to follow, which includes:

• A date for when you and your former husband/wife will exchange financial statements (Form E).
• A date for when Questionnaires (questions you wish to ask the Other Side for further information, a Chronology (detailing the relevant dates in your Marriage) and the Statement of Issues are to be filed with the court. This usually needs to be 14 days before the First Appointment and is served upon your former husband/wife.
• The date of the First Appointment (known as the FDA).

There are three stages to the process:

• The first appointment – a short hearing with the Judge to discuss your application
• Financial dispute resolution (FDR) appointment – to help you agree without needing a final hearing (you might need more than one appointment)
• Final hearing – if you’re not able to agree, this is when a judge will decide how you must separate your finances

1. First Directions Appointment

The courts will set a First Directions Appointment (FDA) before a District Judge following the application. The First Directions Appointment hearing is where the Judge can establish if full disclosure has been made or if further information is required from either party. The Judge will decide if all necessary information is available before negotiations can begin to attempt to settle the financial dispute between the divorcing couple. In certain cases, other Directions could be issued, including the valuation of assets or the obtainment of expert information.

If it is not possible to reach a settlement at the First Appointment, the District Judge will set a date for the Financial Dispute Resolution Hearing (FDR).

2. Financial dispute resolution appointment

The Financial Dispute Resolution appointment takes place when the necessary documentation and evidence has been proven under the provision of the Judge. At this point, the parties then have the opportunity to negotiate. However, if the parties cannot reach a settlement, then either of their solicitors or barristers will explain their cases to the district judge.

The District Judge will indicate a predicted outcome if the case proceeds to a final hearing. This indication is not binding, they can either accept or disregard it, but it does tend to play a big part in aiding negotiations.

If you are able to reach an agreement at any stage of the process, prior to the Final Hearing date, a Consent Order can be drawn up to formally outline the terms and be filed with the court for approval.

3. Final hearing

In the final hearing, the Judge listens to the evidence from both parties and makes the final decision on how the finances should be separated and if there will be any ongoing responsibility regarding financial support from one party to another. The decision will be incorporated into a court order, which will then be legally binding. The Judge will also decide if there should be a ‘Clean Break’ order, meaning that you and your former spouse would have no financial claim against the other. As with all proceedings during a divorce, children will be given main priority and be of top concern in any final decisions from the court.

If you are going through this process, it is vital you seek early expert advice to ensure you are properly represented, that you fully understand your legal rights and obligations and that any assets are settled fairly.

At Eric Robinson Solicitors, our divorce lawyers will help you negotiate a financial settlement with your spouse. Financial matters can be complex to resolve, but our team have years of experience in the divorce process- handling difficult settlements and securing results that protect your best interests. A family law solicitor can help reach a divorce settlement quickly and efficiently, avoiding potential court proceedings. However, if it is not possible to reach an agreement, we will represent you at every step of the way, and we will advise you on the relevant factors involved in your case and how the court will approach a settlement. We will also help you to understand what the possible outcomes could be so that you can make informed choices throughout the case.

We offer free initial consultations with our family law experts; if you are looking for some initial advice – book yours by completing the appointments form our family law financial agreements page.

For more information on Finances Following Divorce and Separation, you can download our advice guide here.

 

Delays still affecting court claims – what are the alternatives?

Most of us dread the thought of confrontation, and finding yourself in a civil or commercial dispute, for whatever reason, can be extremely stressful, time consuming and costly. Even seemingly small issues, if not nipped in the bud sooner rather than later, can have a way of escalating. Subsequently, this can worsen relationships of those in personal or commercial disputes or endanger the reputation or livelihoods of those involved in business related matters. Whilst it may seem like the only way forward is fighting it out in the courts, there are many alternatives to litigation that should be considered first. Furthermore, most courts will have expected parties to try and resolve matters via alternative methods before issuing a claim.

Recent figures released by the civil, family, and criminal courts have highlighted the increasing delays affecting cases being heard, with some taking more than a year to get to trial, so finding a different route to settle disputes outside of the courts, where appropriate, has never been more relevant.

We talk to Rachel Evans from our dispute resolution team regarding alternative dispute resolution and find a little bit more about her

What are the alternatives to litigation?

There are now various alternatives to litigation, like mediation and arbitration and for many years the UK Courts have been encouraging parties to settle disputes via way of Alternative Dispute Resolution (ADR). ADR includes various formats, which includes

• Mediation
• Arbitration
• Conciliation
• Adjudication

Each should be considered very carefully; they could result in the dispute being resolved or determined sooner rather than later – and therefore usually at less cost than going to court. Be wary of declining an offer to mediate just for the sake of having your “day in court”. This approach can backfire.

How effective is Alternative Dispute Resolution?

There is no doubt, if conducted correctly and if both parties are willing to communicate and compromise, that using alternative dispute resolution techniques will save you time and money. In a survey conducted by the Centre for Effective Dispute Resolution (CEDR) earlier this year, it showed that mediation’s overall success rate is extremely high. Over 90% of all cases settled and over 70% on the first day. In the same survey it calculated businesses and individuals save £4.6bn annually by using mediation.

Is Mediation Compulsory?

Currently mediation is only compulsory in divorce proceedings, (unless you can prove exemption) and in most other civil and commercial disputes it is still a voluntary exercise. Although, it is strongly encouraged, and the courts will take dim view of parties who bring a claim to court without attempting ADR first and can even penalise those who refuse (or ignore) an offer to mediate.

A report by the Civil Justice Council was commissioned to consider the legality and desirability of making ADR compulsory, which could result in ADR playing an even more prominent role in future. Responding to the report on ‘compulsory ADR’, Master of the Rolls Sir Geoffrey Vos said that ‘ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process. That process should focus on “resolution” rather than “dispute”.’ 

However, the report does not offer any proposal of timings as to when any changes might come into place, or how these would be incorporated into the dispute resolution process. Our team are keeping track of any changes and will provide updates as an when new information emerges.

How has the pandemic and social distancing restrictions affected mediation?

The traditional model of mediation involves both parties attending a meeting with a Mediator, at one location, albeit in different rooms. During lockdown and social distancing restrictions, this was not possible so many Mediators offered the option of remote online mediations, via methods such as Zoom or Skype. Whilst online meetings do have some disadvantages, largely this proved to have a positive outcome in most cases, with advantages that included a faster process, reduced costs, and ease of access.

Can court cases be conducted remotely?

In some cases, yes. Courts were required to adapt very quickly at the height of the pandemic and the implementation of modernised systems was fast-tracked to allow for Remote hearings and virtual Trials. Whilst in certain cases there will always be a necessity for in-person participation, it is likely that virtual mediations or court hearings will continue to grow in popularity and become a permanent fixture.

How can Eric Robinson help with Dispute Resolution?

Whilst we have focused on mediation in this article, there is more than one way of resolving a civil or commercial dispute and it needn’t involve the courtroom. At Eric Robinson Solicitors our expert lawyers will explain all the options to you and help you explore the best one for you or your business. We’re experienced negotiators and tacticians. Therefore, our team is well placed to represent both individual and commercial clients across a wide range of legal matters.

Commercial Property Disputes – Top 10 Tips

Business Disputes – Top 10 Tips

Below we find out little more about Rachel Evans from our busy dispute resolution team.

 

 

Rachel Evans – Senior Associate

Rachel has over 25 years’ experience in dispute resolution and has been with Eric Robinson for over 15 years. She can advise on a wide range of civil and commercial disputes including contract and property disputes, company commercial disputes, maritime disputes, more recently specialising in disputes concerning Wills, trusts and estates, and disputed matters in the Court of Protection concerning the affairs of people who lack capacity.

What do you enjoy most about working with the Eric Robinson team?

R: It is a friendly and mutually supportive team who have a good depth and breadth of legal knowledge and experience. This makes it a good place to work and enables us as a team to deliver good solutions for our clients’ legal problems.

What made you choose a career in law?

R: Originally, I had intended to do a history degree but was persuaded to do a law degree instead. I then started my legal career in dispute resolution and never looked back. I found that I enjoyed the process of finding solutions to the clients’ legal problems.

What interests you most about specialising in dispute resolution?

R: I enjoy the challenge of building a persuasive legal case for the client. I also enjoy working with the client to problem solve and to try and facilitate an agreed settlement with the other party to the dispute.

What was your favourite subject at school?

R: Modern history.

Where is one of you favourite places to visit?

R: The Brecon Beacons and Pembrokeshire.

Financial Settlement Disputes – What is the process? When going through divorce proceedings or ending a civil partnership, you and your ex-partner will need to agree on how you will separate your finances and property and make financial arrangements for children, which is called the financial settlement. A financial settlement will set out how you are going to divide all your current financial affairs, including savings, investments and pensions, and if there are going to be regular maintenance payments to help with children or living expenses. If you can agree on future financial obligations and how to split your money and property without the involvement of court hearings, whether directly, through lawyers or through a form of mediation, it will be best for all involved. Involving the courts in financial disputes will be more costly, lengthy and can further impact an already stressful situation. Making a financial settlement legally binding If you and your ex-partner can agree on the details of your financial settlement and how you will divide money and property, you will need to apply for a consent order to make it legally binding. But what happens if you are unable to agree? What happens when you cannot agree on a financial settlement? If communication breaks down, or you are unable to agree on everything, you can make a Financial Remedy Application, now known as a Financial Order (also known as the ‘contested’ route or an ‘ancillary relief order’). The Financial Remedy proceeding is the process that helps settle financial disputes between divorcing couples in court. You and your former partner will need to provide all the evidence, including the details of the means and assets, and the court can decide upon an appropriate settlement. Here are some of the steps involved in a financial remedy proceeding: Before the Application Prior to the actual application, the parties are encouraged to follow a pre-application protocol. This protocol outlines the ways in which the parties should provide the required information from and to each other before making the initial application. The idea behind the protocol is to ensure that the relevant efforts have been made to settle issues before taking them to court. In the instance of no possible progress being made, unless there is court intervention, the application can then be proceeded with. Application to the court Once you have made your application, the court will provide a timetable, which will include directives for all parties to follow, which includes:

• A date for when you and your former husband/wife will exchange financial statements (Form E).
• A date for when Questionnaires (questions you wish to ask the Other Side for further information, a Chronology (detailing the relevant dates in your Marriage) and the Statement of Issues are to be filed with the court. This usually needs to be 14 days before the First Appointment and is served upon your former husband/wife.
• The date of the First Appointment (known as the FDA).

There are three stages to the process:

• The first appointment – a short hearing with the Judge to discuss your application
• Financial dispute resolution (FDR) appointment – to help you agree without needing a final hearing (you might need more than one appointment)
• Final hearing – if you’re not able to agree, this is when a judge will decide how you must separate your finances

1. First Directions Appointment

The courts will set a First Directions Appointment (FDA) before a District Judge following the application. The First Directions Appointment hearing is where the Judge can establish if full disclosure has been made or if further information is required from either party. The Judge will decide if all necessary information is available before negotiations can begin to attempt to settle the financial dispute between the divorcing couple. In certain cases, other Directions could be issued, including the valuation of assets or the obtainment of expert information. If it is not possible to reach a settlement at the First Appointment, the District Judge will set a date for the Financial Dispute Resolution Hearing (FDR).

2. Financial dispute resolution appointment

The Financial Dispute Resolution appointment takes place when the necessary documentation and evidence has been proven under the provision of the Judge. At this point, the parties then have the opportunity to negotiate. However, if the parties cannot reach a settlement, then either of their solicitors or barristers will explain their cases to the district judge. The District Judge will indicate a predicted outcome if the case proceeds to a final hearing. This indication is not binding, they can either accept or disregard it, but it does tend to play a big part in aiding negotiations. If you are able to reach an agreement at any stage of the process, prior to the Final Hearing date, a Consent Order can be drawn up to formally outline the terms and be filed with the court for approval.

3. Final hearing

In the final hearing, the Judge listens to the evidence from both parties and makes the final decision on how the finances should be separated and if there will be any ongoing responsibility regarding financial support from one party to another. The decision will be incorporated into a court order, which will then be legally binding. The Judge will also decide if there should be a ‘Clean Break’ order, meaning that you and your former spouse would have no financial claim against the other. As with all proceedings during a divorce, children will be given main priority and be of top concern in any final decisions from the court. If you are going through this process, it is vital you seek early expert advice to ensure you are properly represented, that you fully understand your legal rights and obligations and that any assets are settled fairly. At Eric Robinson Solicitors, our divorce lawyers will help you negotiate a financial settlement with your spouse. Financial matters can be complex to resolve, but our team have years of experience in the divorce process- handling difficult settlements and securing results that protect your best interests. A family law solicitor can help reach a divorce settlement quickly and efficiently, avoiding potential court proceedings. However, if it is not possible to reach an agreement, we will represent you at every step of the way, and we will advise you on the relevant factors involved in your case and how the court will approach a settlement. We will also help you to understand what the possible outcomes could be so that you can make informed choices throughout the case. We offer free initial consultations with our family law experts; if you are looking for some initial advice – book yours by completing the appointments form our family law financial agreements page. For more information on Finances Following Divorce and Separation, you can download our advice guide here.  

Contesting A Will

The process of contesting a Will can be a very  stressful experience, evoking many emotions and tensions amongst the family members of the person who has passed away. It can be overwhelming to have to endure all the legal formalities,  legal terminology, determining which grounds to contest on, on top of handling the potential familial fallouts and other stresses, which can overcomplicate an already frustrating experience.

If you have concerns about how a Will has been made or think it is a poor reflection of the deceased’s final wishes, you may want to challenge its validity. Our dedicated lawyers are here to listen and fully advise you. At Eric Robinson Solicitors, we have had many years of experience dealing professionally and sensitively with potential disputes or queries arising from Wills.

There are various factors to consider when disputing a Will, in this blog, we go over some of the most frequently asked questions and some of the steps you can take.

 

What are the reasons to contest a Will?

There are many reasons behind contesting a Will, which can include:

• Lack of due execution – A Will has to comply with certain formalities. If there is a lack of due execution, this is a ground on which you can dispute a Will.
• Lack of testamentary capacity – The testamentary capacity refers to the mental and legal ability of the testator to make or alter a valid Will. If the testator lacks testamentary capacity at the time of executing the Will, then the Will is regarded as invalid.
• Undue influence – This refers to when a person is forced into making or changing the contents of the Will usually so that it benefits the person who is engaging in the coercion. If you have evidence of this, it is grounds for contesting a Will.
• Fraudulent calumny- This is the instance where the testator makes their independent decision to make a Will, but their view of the initial beneficiary has been skewed or altered by another beneficiary which has affected how they draft their Will. It is very similar to undue influence.
• Fraud or forgery- When a Will has been made without the knowledge of the deceased, or the signature on it is forged, this would be considered a forged Will. This often happens when fraudsters target elderly people who do not have contact with their families and convince them to put them in their Will.

 

What is the timescale of contesting a Will?

With inheritance dispute matters, you should speak to a specialist solicitor as soon as possible. Ideally you need to act before the administration of the estate begins; it can become much more complicated to deal with a dispute if funds have already been released to any beneficiaries. Some contesting grounds have a limit of 6 months from the grant of probate, but others like forgery or fraud have no limit.

 

What happens if the Will is found to be invalid?

If the Will is declared invalid, then the deceased’s assets will be distributed according to any previous Will, or in the absence of an earlier Will,  the Laws of Intestacy apply. Typically, distribution of an intestate estate follows family relations with assets awarded to the spouse first, then to children, and so on.

 

What costs are involved in contesting a Will?

The exact costs vary from case to case, but at Eric Robinson, our team of experienced dispute resolution lawyers are experts in their field and are sensitive to the wants and needs of their clients. Therefore, they ensure they are transparent and concise about the fees required. We understand this can be an incredibly difficult time for our clients, and we always deal with matters sensitively.

At Eric Robinson Solicitors our expert lawyers can provide a no-obligation, fixed-fee one-hour interview for £125.00 plus VAT (£150) to help you establish whether you have a claim.  If you decide to instruct us beyond this initial meeting, then we will discuss with you the various funding options that may be available, and we will help you find the one to suit you.

Most disputes about Wills and Estates are settled before they get to court. That is what we aim for at Eric Robinson Solicitors, because we recognise that taking a claim to court can be expensive and stressful for families. So, we will explore the ways of settling the dispute including mediation and negotiation. And we’ll make sure that our strategy and advice is tailor-made for you.

For more information, download our advice guide by clicking on the link below:

Top 10 Tips Guide – Disputed Wills and Estates

Protecting your Estate and Preventing a Claim

One of the most robust forms of ‘insurance’ you can have, to ensure your estate is dealt with in accordance with your wishes, is to seek expert legal advice and put in place a well drafted Will. Our specialist private client team can guide you on the right solution for you, taking in to consideration all other overlapping areas of law, such as; trust administration, family law and property. All of which are essential factors in effective estate management. With our expert knowledge of inheritance claims, we can help you ensure that where possible, risks of a disputes are avoided in the first place.

 

How to find out more about contesting a Will

If you are concerned about the contents of a Will, it is very important to get in touch with our team who can find the right solution for you. Eric Robinson Solicitors has 6 offices open to the public located throughout Hampshire and Surrey. Make an online enquiry or call on 02380 218000.