Blogs

Japanese Knotweed – a ‘knot’ to consider

What is the problem with Japanese Knotweed?

Japanese knotweed is a plant that can cause serious damage to buildings if left untouched.

It is a weed with roots that can extend up to 3 metres in depth, 7 metres in direction and can grow up at a rate of a yard per week. As a home owner, property developer or potential purchaser, knotweed poses a serious threat to a property; its roots can have a damaging effect on building foundations and drains and the presence of it alone can cause a diminution to the value of the land even.

Lenders are cautious with properties affected by the weed and some lenders will reject a mortgage application if the property is reported to have Japanese Knotweed. Due to the damage the weed can cause, lenders are concerned that a property with or damaged by Japanese knotweed may not be good security for a mortgage as the property is at high risk of damage posed by the plant which can also affect the ability of the property being sold in the future.

In short, you do not you want Japanese Knotweed on or near your property.

What can you do if you have Japanese Knotweed?

If you identify Japanese Knotweed on your property it is important that you try and control it and make sure it does not spread onto your neighbours land. If you struggle to contain or exterminate it you can seek help from professionals who can treat it.

The process is long and can take around 3 years to treat Japanese Knotweed. Therefore if you become aware of the weed it is suggested that you commence treating it immediately.

You do not have to remove Japanese Knotweed from your land but if you fail to stop it from spreading to anyone else’s property you could face prosecution for causing a nuisance to the neighbouring land.

My property has Japanese Knotweed, what liability do I have to my neighbour?

You are not obliged to control, remove or treat Japanese Knotweed on your land. However, you may be liable should the presence of the weed cause the neighbouring property to decease in value and if it spreads on to a neighbouring property.

(1) The spread of Japanese Knotweed onto a neighbour’s land

If the weed spreads onto your neighbour’s land, they can issue proceedings in the Civil Courts for private nuisance, requesting that you remove the weed and pay the costs of removal. Your neighbour may also request the Court award damages for the loss of enjoyment and diminution of value of their land.

A private nuisance is an act or omission which is an interference with, disturbance of or an annoyance to a person in the exercise of his ownership or occupation of land. Nuisance extends to include encroachment on to neighbouring land as in the case of tree roots or overhanging breaches, which cross a boundary.

(2) You can still be liable for the presence of the weed on your land

If the weed is present but has not yet spread on to your neighbours land, you may still be at risk of claim being brought against you.

Japanese knotweed weed may prevent a neighbour mortgaging their property, reduce the value of their property for sale and/or warn off new buyers having an impact and generally reduce the value of the land. The presence of knotweed is sufficient for your neighbour to claim, even if no damage or growth to the property has occurred, for the reduction in the value of their land due to the fact that the weed is in the vicinity of their property and their land is at risk of damage that the plant may cause in the future.

(3) Local Authority action

Be warned- your local authority has (in most cases) the power to serve Notice on an occupier of land containing the weed, requiring them to remedy and/or remove the knotweed. If the occupier fails to adhere to the requirements in the notice can lead to criminal liability.

If you have any concerns about your neighbour, your rights, liability or any property litigation matter then it is recommended that you contact Aileigh Brough at Meaby & Co for timely advice: abrough@meaby.co.uk or call 0207 703 5034.

Tenant considerations on an assignment of a commercial lease

It is common, upon taking a commercial lease, for a tenant to agree a contractual term longer than the tenant expects to be in occupation. The majority of new commercial leases that the writer finds passing her desk is around the ten year mark. If a tenant does not want or need to be in occupation for the duration of the ten years and the lease contains no provision for a break, a tenant will want to ensure that it has the ability to assign the lease to someone else.

There will be commercial considerations at play here: whether it is likely that someone will want to take on a tenant’s lease in the future; whether the terms of the lease attractive to future owners and whether the premises in an area of demand.

This article deals with the procedure for an assignment of a lease and focuses on what considerations a tenant will have when assigning their lease.

The first consideration ought to be whether the lease is assignable. Most leases permit assignment but place restrictions on the tenant and the proposed assignee. This is generally thought to be fair: the landlord will have heavily vetted the original tenant and they will want to have a degree of control over their new occupant. If a tenant fails to adhere to the assignment provision in their lease then this can constitute a breach of the lease so compliance is key.

More often than not a commercial lease will permit assignment of whole of their lease and premises with the landlord’s consent and, more often than not, such consent must not be unreasonably withheld. Usually, a landlord is entitled to recover legal and surveyor costs from the tenant in considering the application for consent so this must be factored in to the tenant’s financial considerations when assigning their lease to another.

Under statute and, often the express terms of the lease, obligations are imposed on a landlord to provide consent but will also govern what conditions a landlord may impose on a tenant to ensure the suitability of the incoming assignee.

Leases granted prior to January 1996 kept a tenant on the hook for the liability of the tenant covenants for the duration of the term. That meant that if a tenant took a lease for, say, 25 years and upon the 24th year of the term the current tenant defaulted on the rent, the original tenant could receive a sharp reminder in the post of the obligations that they entered into years ago. From January 1996 the Landlord and Tenants (Covenants) Act 1995 changed all this by imposing a statutory release for a tenant from its obligations after assignment of its lease.

This release was subject to the exception for a landlord to require, what is known as, an authorised guarantee agreement (otherwise known as an AGA). Generally speaking, an AGA contains a guarantee by the tenant of the performance, by the assignee, of those covenants from which the tenant has just been released. That guarantee is a one time only obligation: an AGA cannot extend the outgoing tenant’s liability in respect of a successor to the assignment. Therefore when the lease changes hands the next time, the outgoing tenant is released from its obligations for the rest of the term. For this reason it is key, for any tenant seeking to assign its lease, to first check out the strength of the financial covenant of its proposed assignee. The outgoing tenant will lose the right to operate its business from the premises and it will not be in active day-today control to assure that the incoming assignee behaves. Landlords will request references to, essentially, provide that the incoming assignee is “good for the money” but such references are as important to the outgoing tenant as they are to a landlord. In short: you may feel pleased to have found someone to take on your obligations but remember to check that they are the right person.

Assignments should include an indemnity from the incoming assignee to the outgoing tenant. An indemnity will require the incoming assignee to reimburse the outgoing tenant their financial losses should the landlord go after the outgoing tenant for a breach of the lease caused by the incoming assignee. However, such an indemnity may be of little value: the landlord will use the AGA as a second resort so if the Landlord has cause to go after the outgoing tenant, it may be the case that the existing tenant is not worth pursuing for losses.

Contact Nicky Cleightonhills on ncleightonhills@meaby.co.uk or +44 207 703 5034 for commercial lease matters.

The Rights of Beneficiaries  vs. The strain of being an Executor

Acting as executor in an estate can be difficult, especially when grieving beneficiaries wish the matter to be resolved as soon as possible. This can be especially difficult if you are a friend or advisor and are not fully aware of the deceased’s personal affairs which are likely to have been managed by family members. Meaby & Co can assist you in fulfilling your duties as an executor or administrator (collectively called Personal Representatives) to ensure that things run smoothly and to provide a source of clarity for all involved during a confusing and stressful time. If on the other hand you are a beneficiary and have concerns regarding the conduct of personal representatives, we can advise you of your rights and how best to resolve matters.

Although beneficiaries do not have an immediate right to the assets they have inherited, they have the right to bring proceedings if they feel that the estate is not being administered properly. The estate could be complex to administer so cooperation between personal representatives and beneficiaries is vital. The beneficiaries will often be the close family and friends of the deceased and may be able to provide helpful information in relation to the deceased’s assets and the whereabouts of any beneficiaries who may have either died, or moved address since the Will was made. Having someone else in control of the estate can be unsettling for beneficiaries especially when information is not forthcoming . On the other hand, even the most reasonable request from a beneficiary can feel like the straw that broke the camel’s back for an already overburdened personal representative.

When the grant of representation is obtained, the assets of the estate vest in the personal representatives. It is essential that they are managed properly otherwise the Executor/PR will be held personally liable for any loss to the beneficiaries. As personal representative, a duty of care is owed to the beneficiaries to exercise reasonable care and skill when administering an estate and a duty is owed to the Court indefinitely unless they are removed from office or the grant is revoked. Any breach of this duty could result in an action from the beneficiaries. Below are some of the most common actions against the personal representatives of an estate and how they can be avoided.

Slow progress during the administration

Probate is a process which can often take longer than anticipated especially in a complex estate. Delay is often unavoidable and unexpected especially when dealing with so many organisations who each have their own processes.

In very simple cases, probate can take only a few short months but the usual timescale is around 6-9 months, sometimes extending to a year. The personal representatives are not bound by law to distribute the estate to beneficiaries before the passing of 6 months from the date of death and cannot be forced to do so by the Court before the passing of 12 months (the executor’s year). This can extend to a little longer if it can be shown that there is a good reason for delaying distribution and that the personal representative is acting reasonably and with integrity. PRs should not however hold on to assets needlessly and should administer the estate in good time. All involved should be  aware of the process to avoid frustrations and regular updates should be given to beneficiaries. Therefore, communication is key.

Beneficiaries should also bear in mind that the personal representatives may have taken steps to protect themselves and the estate from any possible claims and it can be sensible to allow sufficient time to expire to ensure that these protections are fully effective.

Failure to provide accounts or a copy of the Will

It is best practice to inform all beneficiaries of their entitlement under the Will, and it is usually ok to provide them with a copy, especially where this will not give rise to conflict or affect the administration process. Personal representatives must also keep full estate accounts and these should be available to beneficiaries on request.

All residuary beneficiaries of the estate should be provided with a copy of the estate accounts but those inheriting a specific legacy are not entitled to a copy although one may be provided in good faith. Simply knowing where they stand can help calm beneficiaries and reduce friction.

However, anybody with an interest in the estate can make an application to the Court for an account under Section 25(b) of Administration of Estates Act 1925 if a direct request to the PR has been met with refusal.

The preparation of good and thorough accounts and schedules will assist in updating beneficiaries and can help personal representatives keep track of the funds they receive and the changing values of appreciating assets or accruing liabilities.

Negligence of PR

Beneficiaries can issue court proceedings if they consider that a personal representative is acting negligently. It is sometimes frustrating for beneficiaries, as before the litigation begins, they may find that their rights are not as strong as expected when requesting information or documents. Court proceedings calling for full disclosure are therefore popular so it is best for the Executor to be forthcoming and transparent with the beneficiaries from the outset to avoid this or to reach a settlement.

Removing an executor/ Stepping down or asking for help

Personal representatives can step down voluntarily if they feel that they are not able to comply with their obligations, or discord between themselves and the beneficiaries will hamper the progress of the administration. It may be better for the personal representative to appoint a professional to continue on with the administration on their behalf as this may release some of the pressure and reassure the beneficiaries. Alternatively, beneficiaries can apply to the Court to seek removal or substitution of a personal representative. This is not an easy process and the beneficiaries will have to show serious unsuitability, misconduct or incapacity of the personal representative to fulfil his duties.

If you would like advice on your rights as a beneficiary or duties as personal representative, please contact Hollie Skipper at hskipper@meaby.co.uk, or feel free to call on 020 3861 5158.

 

Latest authority on Philosophical belief.

The Employment Appeal Tribunal has dismissed an employee’s claim that she had been discriminated against by her employer on the grounds of a philosophical belief.

Ms Gray – who started working for Mulberry, the designer leather handbag retailer in January 2015, asserted that a belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output” amounted to a philosophical belief within the meaning of section 10(2) of the Equality Act 2010.

She was asked by her Employer to sign an agreement stipulating that the Company would own the rights to any work that she completed during her time with them.

Ms Gray refused to sign the document on the basis that she believed that by signing it, it would extend to work carried out in her own time as a writer and film-maker.

Mulberry agreed to amend the wording of the agreement to stipulate that the agreement would only relate to work carried out relating to their business. Notwithstanding this offer to compromise, Ms Gray still refused to sign the agreement on the basis that she considered the wording to be general and open to interpretation.

By September 2015 Ms Gray had still refused to sign the agreement and Mulberry decided to terminate her employment.

The resulted in Ms Gray issuing employment tribunal proceedings for both direct and indirect discrimination on the grounds of belief.

The Employment Tribunal held that Mulberry’s requirement for employees to sign the agreement was a proportionate method of protecting their intellectual property and that Ms Gray’s belief was not eligible for protection under the Equality Act 2010. It said that ‘having a belief relating to an important aspect of human life or behaviour is not enough in itself for it to have a similar status or cogency to a religious belief.’

It also held that Mulberry’s interests as a designer in seeking to protect its intellectual property were ‘correspondingly greater’ than the impact on Ms Gray’s interests in refusing to sign the document.

The Employment Appeal Tribunal upheld this rationale.

In relation to the claim of indirect discrimination, the Employment Appeal Tribunal confirmed that the Employment Tribunal was also correct in its decision to find that group disadvantage had not been made out by Ms Gray. The sole adherent of a philosophical belief, who is unable to establish any group disadvantage, cannot succeed in a claim of indirect discrimination.

Ms A Gray v Mulberry Company (Design) Ltd: UKEAT/0040/17/DA

If you have concerns about discrimination in the workplace or are an Employer who wishes invest in good policies and procedures then contact Steven Eckett, Senior Associate and Head of Employment seckett@meaby.co.uk

ACAS confirms a hike in Employment Tribunal claims

ACAS has confirmed that there has been a 39% hike in the number of employment tribunal claims being issued in the last financial year.

It’s annual report reveals that in the last financial year for 2017/18  26,012 cases were filed with the employment tribunal compared to 18,647 for the period 2016/17.

In addition, applications for ACAS Early Conciliation jumped from 1,700 per week to 2,200 immediately after employment tribunal fees were abolished after being declared unlawful last July by the Supreme Court.

ACAS has also confirmed that it has helped to settle around 92% of workplace disputes avoiding employment tribunal proceedings in more than  70% of cases.  This proves that mandatory ACAS Early Conciliation is a useful and effective tool in reducing the number of claims going through the system.

The Ministry of Justice has also confirmed that single employment tribunal claims that have been received have increased by 118% between January and March 2018, although the number of multiple claims fell by 40%.

It was also noted that fees had been returned to 7,700 Claimants totalling some £6.5million.

It is however highly noticeable that the Employment Tribunal service continues to suffer both administrative and judicial under-resourcing leading to a significant number of claims being delayed in being issued combined with many cases being adjourned at short notice.  This clearly is not good for the Claimant’s seeking justice .

We are however pleased to hear that the Judicial Appointments Commission is seeking to appoint 54 new employment judges which we hope will reduce the backlog of claims going through the system.

If you have any employment related enquiries then please contact Steven Eckett, Senior Associate and Head of Employment at Meaby & Co.  seckett@meaby.co.uk

What is the difference between an Executor and a Trustee of a Will, and who should I appoint?

Often clients ask what is the difference between an executor and a trustee, and whether they can appoint the same person to act in both capacities under their Will.

Your executor is the person that deals with the winding up of your estate on your death, in accordance with the terms of your Will.  They will gather in the deceased’s estate, pay debts and satisfy any claims, and distribute the assets to the beneficiaries.  They will also need to value your assets and account to HMRC for any inheritance tax that may be due.  The role therefore carries a great deal of responsibility, and potentially some liability.  The Will writer should therefore carefully consider whom they wish to act in this function; they should be capable of dealing with, quite often, a great deal of administration during a difficult time, and they must get along with the other appointed executors.  One person can be appointed to act as executor, and as many as four.  It is also possible for a professional body, such as a firm of solicitors or accountants, to act as executor, or be appointed to act on behalf of the executors if appropriate.

If a trust is established under your Will (such as where property is to be held for a child upon attaining a specific age), then the trustees who have been named in the Will become responsible for receiving and holding the inheritance on behalf of the trust, and he is bound to carry out the terms of the trust on which he holds the property.  The trustees’ duty is therefore to manage the assets for the benefit of the beneficiary, and they have a duty to act fairly and with care and skill.

It is very common for your executor and your trustee to be the same person.  In addition, there is no legal objection to a beneficiary being appointed as an executor and trustee under a Will, especially where he is the sole beneficiary or where the estate is small or uncomplicated.

If you have any questions about setting up a Will or a trust for a specific purpose, or on the administration of a deceased’s estate generally, please contact Laura Sentkovsky in our Private Client team on 0207 703 5034 or at laura@meaby.co.uk.

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A Meal Ticket For Life?

A Supreme Court decision, given last week, is being hailed in some quarters as the end to what  campaigners  see as a “meal ticket for life” for divorcing wives, but is that really the case?

Mr and Mrs Mills divorced in 2002 and an order was made which awarded Mrs Mills a lump sum to meet her housing needs and spousal maintenance payments of £1,100 per month until she remarried or one of the parties died. Mrs Mills bought and sold a number of different homes and ended up with significant debts. Eventually, she moved into rented accommodation.

In 2014 Mr Mills made an application to discharge or at least reduce the maintenance payments on the basis that Mrs Mills had badly managed the original capital award and that she was able to increase her income by working more. Mrs Mills applied to increase the monthly maintenance payments on the basis that the current payments were not sufficient to meet her basic  needs.

The Family Court left the maintenance payments as they were. The Court of Appeal allowed Mrs Mills’ appeal and increased them to cover an element of rent. The Supreme Court this week allowed the appeal of Mr Mills and ordered that the original maintenance order should remain in force but that there should be no increase to cover rental costs, given that provision had already been made for Mrs Mills’ accommodation in the 2002 order and she had mismanaged those funds.

Our Head of Family Law, Joanna Toloczko comments: “Many of my clients, both husbands and wives, are surprised to learn that there is such a thing as spousal maintenance, assuming that maintenance is only available for children. Indeed, there are many European jurisdictions where that is the case. There is also a big difference in the approach of Family Courts in different parts of the country as to whether an order for spousal maintenance should be made and, if so, what the correct level of maintenance is and when it should come to an end.

Although some people are hailing the Mills case as another nail in the coffin for payment of maintenance for life, it should be remembered that the Supreme Court upheld the original joint lives maintenance order and only declined to increase it to cover rental payments.”

For advice on maintenance payments for children and spouses and all other financial remedies, contact Joanna on jtoloczko@meaby.co.uk or 0207 703 5034.

 

Blogs

Transgender van driver issues first LGBT+ discrimination claim in the Gig economy

Employment Rights in the Gig economy have been in the headlines quite a lot over the past couple of years focusing on various businesses denying their workers various rights for example the national living wage, and holiday pay.  Typical workers have been Uber and Deliveroo drivers, Couriers, and plumbers.

Another claim has been issued against a Gig economy business where for the first time a transsexual woman called Hayley Stanley is claiming discrimination against her by her former employer – Gnewt Cargo and its parent company – Menzies Distribution, on the basis of her gender reassignment.

Hayley’s role and responsibilities were to load parcels onto a van and then to drive them across London and she worked for Gnewt Cargo from May 2014 to January 2018.

Gnewt Cargo classed Hayley as an independent contractor, however she believes that she is a worker if not an employee and is therefore entitled to worker’s rights and benefits.  This is key because if Hayley is an independent contractor then she has no discrimination rights that she can pursue in the employment tribunal.  If she is however an employee or a worker then she can pursue her rights.

During the course of her time at Gwent Cargo, Hayley encountered taunts from colleagues for example they laughed at her when she had to physically move 70 boxes out of her bay before she could start work.  Her bicycle was also tampered with and the front wheel came off whilst she cycled home.  She complained to Gnewt Cargo about her treatment but it fell on deaf ears and nothing was done about the situation.

Gwent Cargo however are disputing that Hayley was discriminated against and that the reason they brought the arrangements to an end was because she purposefully damaged the main roller shutter door of their premises by ramming it with a loaded pallet truck.  This they say was captured on CCTV and that they would have treated any other independent contractor in the same way.

The case is being supported once again by the Independent Workers Union of Great Britain who have supported other workers in pursuing their rights.  Their  reasons are simple and are based on the fact that the Government is not enforcing the law and on a point of principle.  The Unions’s General Secretary Jason Moyer-Lee states ‘If you are being discriminated against in any form, you should be able to bring some sort of justice to bear on these people.

No doubt this case will be watched with keen interest to determine whether Hayley is in fact an employee or a worker and can therefore proceed with her discrimination claim.

Whatever the outcome of Hayley’s status it just cannot be right that she suffers work place discrimination and cannot do anything about it and on this basis this should be challenged.  The ideal solution would be for the Government to legislate in this area to clarify once and for all the rights of workers in the Gig economy.

Finally a Government survey shows that 4.4% of UK workers have worked in the Gig economy or around 2.8 million people and the numbers are growing.   Even more reason to legislate to clarify employment rights for such workers.

If you are a victim of unlawful discrimination at work or would like advice as an employer on introducing anti-discrimination policies then contact Steven Eckett, Head of Employment at Meaby & Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

Court ruling states that neighbours are entitled to damages for Japanese knotweed “encroachment”

A Court of Appeal ruling this week decided that owners of land in England and Wales will be entitled to claim damages if Japanese knotweed has encroached on their property from neighbouring land.

The court ruled in favour of two neighbours in Maesteg, South Wales, whose properties had been affected by the growth of the plant. They made a joint claim against Network Rail who own the property immediately behind them, as the Japanese knotweed had grown from Network Rail’s land spreading under the properties.
Japanese knotweed, which grows quickly and strongly and spreads through its underground roots, can undermine the structural integrity of buildings and is expensive to treat.

The court heard that the plant had been present on Network Rail’s land for approximately 50 years, and the claimants first complained in 2013. They were successful in a county court claim in 2017 and were awarded damages. Network Rail appealed against that decision, but this week the Court of Appeal ruled that the landowners were entitled to damages because the roots of the plant had extended beneath the two bungalows.

In giving their decision, the Court stated that “Japanese knotweed, and its roots and rhizomes, does not merely carry the risk of future physical damage to buildings, structures and installations on the land. Its presence imposes an immediate burden on landowners who face an increased difficulty in their ability to develop, and in the cost of developing, their land, should they wish to do so, because of the difficulties and expense of eradicating Japanese knotweed from affected land.

“In this way, Japanese knotweed can fairly be described as a natural hazard which affects landowners’ ability fully to use and enjoy their property and, in doing so, interferes with the land’s amenity value.”

The Court did however state that the claimants were not entitled to seek damages on the basis of their respective property values being reduced as a result of the knotweed.
If you are buying or selling a property, whether in England or Wales, please contact Andy Roscoe at Meaby & Co for advice: andy@meaby.co.uk or call 020 7703 5034.

A Little Soho History

I am currently reading Jenni Murray’s “A History of Britain in 21 Women”. Chapter 5 is about Fanny Burney – a woman I knew very little about prior to reading the book.

She was an English satirical novelist, diarist and playwright , born in 1752. Part of Murray’s chapter on her concentrates on her detailed written account of her diagnosis with breast cancer and subsequent mastectomy in 1811 – at a time when there “was no such thing as an effective anaesthetic”. Burney lived for 29 years after her successful surgery and there is clear evidence that the medical profession learned a lot about the disease as a result of her treatment.

I was intrigued to read that her husband, Monsieur D’Arblay had encouraged her to seek medical advice and that D’Arblay was a French emigre and career soldier who was a member of a liberal group of constitutional reformers. Fanny had married D’Arblay in 1793. Murray’s chapter also referred to the fact that the Burney family had moved to London and set up home in Poland Street, Soho in the early 1760s when Fanny was a child.

Meaby & Co’s Soho office is in Portland Mews – a square which is formed partly by Poland Street and D’Arblay Street. Next step – Wikipedia. It turns out that D’Arblay Street is named after Fanny Burney (Madame D’Arblay) and that her  home from 1760 – 1770 was at 50 Poland Street. I intend to hunt down 50 Poland Street during my next lunch hour.

I love the fact that this area is so rich with history and that it is associated with such a pioneering woman and I would like to think that Meaby & Co continue that pioneering spirit in their cutting edge approach to all things legal.

Written by our Head of Family Law, Joanna Toloczko who may be contacted at jtoloczko@meaby.co.uk or on 020 7703 5034.