Landmark court rulings for failure to control Japanese knotweed

Recent court decisions have highlighted the risks to landowners with Japanese knotweed on their land of allowing it to spread to adjoining property, or even allowing it to grow close to boundaries with adjacent land.

Earlier this month, the Truro County Court delivered its judgment in Adam Smith and Eleanor Smith v Rosemary Line.  The court ruled that the defendant was liable in common law nuisance for a 10% diminution in the value of the claimants’ £500,000 property for allowing Japanese knotweed to invade their garden.    This  decision was made on the basis that while it is not illegal to have knotweed on land, it is illegal to allow it to spread.  As a result, the defendant was ordered to employ a contractor over the next five years to eradicate the weed and pay court costs.

In April 2017, in Williams v Network Rail Infrastructure Ltd, the Cardiff County Court decided that knotweed was an actionable interference before it caused physical damage on adjoining land because of its effect on the use and enjoyment of the claimants’ land.   In this case, two homeowners took action against Network Rail after Japanese knotweed grew into their garden from adjoining railway sidings.  Their homes had fallen in value and were difficult to sell as Network Rail had not taken adequate measures to control the Japanese knotweed growing on their land.  The homeowners were awarded damages for the cost of treatment and the loss in value of property after the treatment had been carried out.  Network Rail is appealing that decision.

These cases reinforce the legal precedent for homeowners to ensure that knotweed on their property is not preventing neighbouring owners from being able to sell their property for market value.  In the past, landowners have not been legally required to control or remove existing established areas of Japanese knotweed.  Instead, a landowner would try to reach agreement with the adjoining landowner, but any control works undertaken would have been at their discretion.

The Royal Chartered Institute of Surveyors now advises that knotweed should be removed by an expert, as it is extremely difficult to eradicate unless it is professionally treated.

If you require any further advice in relation to difficulties faced by Japanese knotweed on your property or on neighbouring property please contact Zahra Shah on 020 3053 6509 or at zshah@meaby.co.uk

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Blogs

What is Family Mediation?

Family mediation is a process to help couples who are separating/divorcing reach agreement on any issues which are important to them. It is used mainly to resolve issues regarding the arrangements for the children, and property and financial matters, but it can be used to discuss other issues, such as the arrangements for separation; who will issue the divorce proceedings and on what basis; the contents of the Divorce Petition and many other matters.

It is an alternative to the traditional legal process where there is typically correspondence between solicitors and, if an agreement cannot be reached, one party makes an application to the Court.

The couple are provided with a safe unpressured environment in which they can discuss their differences in a calm, structured and dignified way. The interests of any children are placed at the heart of all discussions.

The mediator will normally see the couple individually for a Mediation Information and Assessment Meeting (known as a MIAM). This meeting is an opportunity for the mediator to provide more information about the process. It is also an opportunity for the mediator to check that there are no domestic violence and/or child protection issues and it is safe for the mediation to proceed. The mediator will also want to know what the priorities for each person are and what they think the challenges will be.

If mediation cannot proceed, the mediator will issue the certificates the couple need to make applications to the Court.

First joint sessions – if your mediation includes arrangements for children, the mediator will  spend some time getting to know a little bit about your children, their personalities, what they like and don’t like; how they are getting on at school,; their hobbies and interests; the current arrangements; what is working well and not so well etc.

If your mediation includes property and financial matters, the mediator will take you through the Form E (the form which is used for financial disclosure) so that the two of you can decide which information and documents you need to provide and who will provide them etc. The mediator will work with you to prepare an agreed schedule of assets, income and liabilities.

The mediator will then help the couple to discuss and explore the different options available to them and consider whether they will work in reality.

The aim of mediation is to find one option which both parties feel that they can live with, even though it may not be their preferred option.

If you have any queries regarding Family Mediation or any aspect of Family Law, please contact Joanna Toloczko on 0207 703 5034 or at jtoloczko@meaby.co.uk.

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Paws {sic} for Thought – Pet Covenants in Leases

In the matter of Victory Place Management Company Limited v (1) Forian Kuehn (2) Gabrielle Kuehn [2018] EWHC 132 Ch, the High Court upheld an injunction requiring a couple to remove their dog from their flat.

Mr & Mrs Kuehn purchased a flat in a gated residential development in Limehouse. The management company, (VPMC) comprised of an elected board of directors who were themselves leaseholders.

Each lease on the development contained a clause that “No dog bird cat or other animal or reptile shall be kept in the [property] without the written consent of [VPMC]”. The management company also had a strict “no pet” policy.

Mr & Mrs Kuehn owned a 5 year old Yorkshire/Maltese terrier cross called Vinnie. They applied for consent however, VPMC refused consent. Mr & Mrs Kuehn moved into the flat with their dog following refurbishment works and VPMC obtained an injunction for the dog’s removal.

VPMC argued that their decision was reasonable as although they adopted a strict “no pet” policy, they were willing to consider Mr & Mrs Kuehn’s application if they could provide evidence of special circumstances.

Mr & Mrs Kuehn argued that the “Wednesbury Reasonableness” test (established in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223), should be adopted to consider whether VPMC’s decision was reasonable. The two limb test concerns rationality and rationality of outcome.

It was held on appeal that there was a rational process followed by VPMC as although they had a strict “no pet policy” they were prepared to consider special circumstances. As Mr & Mrs Kuehn had not provided evidence of special circumstances, VPMC had acted reasonably in refusing consent.

The lesson to leaseholders is, don’t assume consent will be granted for your pets or that the pet covenants in your lease wont be enforced.

It is common for a lease to be silent on this point, contain a restriction against keeping pets entirely or allow pets with the prior written consent of the Landlord. If prior written consent is granted,  a leaseholder should be aware that such consent can be revoked at any time.

If you are purchasing a flat and have a pet or intend to own one in the future, highlight this to your solicitor at the start of the transaction.

If you have any queries regarding lease covenants, please contact Varsha Varsani on 0207 703 5034 or at vvarsani@meaby.co.uk.

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Shock statistics show that UK Employers harbour discriminatory attitudes towards pregnant employees.

The Equality and Human Rights Commission (EHRC) released shock statistics this week which suggest that more than a third of private sector employers in the UK believe that it is acceptable to ask female candidates during the recruitment process about their future plans to have children.

The survey was carried out by YouGov last Autumn and concentrated on a poll of 1,106 senior business decision makers’ attitudes towards pregnancy and maternity discrimination.

Out of this sample, 59% said that they agreed that female candidates who are interviewed should disclose if they are pregnant and 46% said that they believed that it was reasonable to ask a woman if she had small children.

The survey also disclosed that 44% of employers believed that women should work for their employer for at least a year before deciding to have children,  and that women who had more than one pregnancy whilst in the same job could be a burden to their team.

This is notwithstanding the fact that this practice has been illegal since the introduction of the Sex Discrimination Act back in 1975.

The chief Executive of the EHRC branded the findings ‘ depressing’ and accused many employers of ‘living in the dark ages’.  She went on to say ‘We should all know very well that it is against the law not to appoint a woman because she is pregnant or might become pregnant.  Yet we know women routinely get asked questions around family planning in interviews.  It’s clear that many employers need more support to better understand the basics of discrimination law and the rights of pregnant and new mothers’.

The view of many employers is that pregnant women take advantage of their pregnant status and that new mothers are less interested in career progression compared with other employees.  There is also the view that some parts of the workforce are resentful towards women who are pregnant or who are on maternity leave especially where they are expected to cover their roles.

As a consequence of these shocking statistics the EHRC has launched a new campaign called  ‘Working Forward’ aimed at raising awareness and improving the workplace for pregnant employees and new parents.  It is urging employers to sign up and to pledge to treat these employees fairly.

It has to be re-iterated that it is unlawful to ask female employees questions during the interview process and during the course of their employment as to whether they intend to have children in the future or if they have small children.

It is also unlawful to both dismiss a female employee or to refuse to recruit for a reason relating to her pregnancy and maternity .    Any pregnancy and/or maternity related dismissal could lead to claims for direct sex discrimination where there is no financial cap on the amount that an employment tribunal is empowered to award and could also result in a  finding of automatic unfair dismissal where the employee does not require the usual two-year qualifying period.

Employers should also be aware that any decisions taken to dismiss a pregnant employee or one that is on maternity leave is likely to affect their entitlement to maternity pay and the statutory right to return to the same job and also their rights to shared maternity leave.  This in turn can also have a detrimental effect on the pregnant employee’s future family finances.

If the cost of maternity leave is an issue particularly for small businesses then they can reclaim most, if not all the statutory maternity pay from HMRC.  Larger businesses can reclaim 92% of the payments.

If you are a small business, and have paid less than £45,000 in Class 1 National Insurance contributions for your employee(s) in the last complete tax year, then you qualify for small employer’s relief, and can reclaim 103% of the costs.

Above all it is imperative that employers seek timely legal advice before taking any drastic steps that they are considering in either terminating the employment of a pregnant employee or one who is on maternity leave.  This is also the position if there are concerns about what can and cannot be asked during the recruitment process.

Contact Head of Employment Law, Steven Eckett at Meaby&Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

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New annual increases to Employment Tribunal awards and Statutory payments

New annual increases in maximum and minimum employment tribunal awards have been laid before Parliament and are contained in The Employment Rights (Increase of Limits) Order 2018.

These are due to come into effect on 6 April and are as follows:-

A week’s pay for the purpose of calculating statutory redundancy pay and the unfair dismissal basic award increases from £489 to £508.

The maximum basic award for unfair dismissal and statutory redundancy pay (30 weeks) increases from £14,670 to £15,240.

The maximum compensatory award for unfair dismissal increases from £80,541 to £83,682 or a year’s salary whichever is the lower.

The cap on the unfair dismissal compensatory award does not apply where the reason for the dismissal was based on health and safety activities or where the employee has made a protected disclosure (whistle-blowing)

The minimum basic award for unfair dismissal in health and safety, employee representative, trade union and occupational pension trustee cases will increase from £5,970 to £6,203.

Remember too that various statutory payments are scheduled to increase in April 2018:-

Statutory Maternity Pay, Statutory Adoption Pay, Statutory Paternity Pay and Shared Parental Pay all increase from £140.98 to £145.18.

Statutory Sick Pay will increase from £89.35 to £92.05

Contact Head of Employment Law, Steven Eckett at Meaby&Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

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We are delighted to welcome Joanna Toloczko to the Meaby Family

Joanna is a Senior Associate with over thirty years’ experience of Family and Divorce Law, in leading law firms in London and Essex.

Joanna understands that the breakdown of a relationship is one of the toughest experiences a person will ever have to deal with. She aims to provide her clients with the support they need to approach their situation with clarity, confidence and dignity. She helps her clients to focus on the future by approaching the negotiations in a constructive and non-confrontational way. If there are children, their best interests are paramount. Joanna can help you whether you are married, in a civil partnership or living together.

She can offer assistance in connection with all Family Law matters but has a particular interest in complex and high value financial applications within divorce proceedings, such as cases involving a family business or complex trust arrangements.

Joanna is a member of Resolution and the Law Society’s Family Law Panel. She is also an accredited mediator under the Law Society’s Family Mediation Scheme and is described in the Legal 500 as “experienced, efficient and caring”.

You can contact Joanna via email: jtoloczko@meaby.co.uk or call us on 020 7703 5034

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Are you entitled to a refund for your Lasting Power of Attorney fees?

The Office of the Public Guardian (OPG), the Government body who monitor attorneys and deputies, have announced that they are partially refunding those who applied to register either a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), and paid an application fee, between 1 April 2013 and 31 March 2017 in England or Wales.

Due to a rise in applications for LPAs in recent years, the OPG’s registration procedures have become much more efficient, enabling them to reduce their administrative fees (and they are not allowed to make a profit from such fees).  Recently, they lowered the application fee from £110 to £82, and in April 2013 from £130. The refund scheme allows those who paid a higher fee to claim a partial refund, plus interest at 0.5% from the date the original registration fee was paid.

You can make the claim if you are the donor or the attorney, or if the donor has since died, the Executor of the will or the administrator of the estate may apply. The refund must be paid to the donor or to the Executor/administrator as appropriate.  You will only need to make one claim per person, as the system will pick up if that donor had made more than one LPA or EPA.

Those who believe they may be eligible for a refund should follow the link: https://www.gov.uk/power-of-attorney-refund to complete an online application.  There are also details on the link of how to claim the refund by post or you may call a dedicated refund hotline on 0300 456 0300 and select option 6.

While LPA registration fees are at their lowest, there is no better time to consider making a new LPA in relation to your personal finances or your health and welfare, and whilst it would not be cost effective to instruct a Solicitor to claim back your refund, Meaby&Co would be more than happy to assist with any LPA enquiries.

Should you have any questions, please contact Laura Sentkovsky in our Private Client team on 0207 703 5034 or at laura@meaby.co.uk.

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Irish Series: Should we digest our news with a pinch of salt?

New media is literally at our fingertips, with access to the most up to date new stories in print, broadcast media or on our phones at any time of the day. The media has an extremely important role to play in how we stay informed and feed our insatiable appetite for information. However, at what point does the media cross over the line from reporting on the facts as presented, for example during the course of a criminal trial, to spreading misinformation or providing misleading accounts, be it via traditional print media or broadcast news. Or is there really such a thing as “FAKE NEWS”?

“Fake News” is defined as information spread with the intention of misleading or causing damage, and according to many sources, it threatens democracy, free debate and western order. There is a distinction to be drawn between media outlets reporting false or purposely misleading information to reporting on matters which portrays either a bias in circumstances where it could be extremely damaging, or inaccurately or over-reporting facts. One of the pillar-stones of our justice system is justice should be administered in public, and should be seen to be done. The media plays a vital role in reflecting the public interest and representing the public view. The media also carries a great responsibility in how it chooses to report the facts.

The Irish media has been awash with coverage of the ongoing trial of high profile Ulster rugby players amongst others, who are charged with rape and sexual assault of a young woman. Further charges have also been levied against the 4 individuals involved. The trial has been ongoing for several weeks and naturally, there has been significant coverage and commentary on the proceedings as well as events surrounding them, across all forms of media, be it social or otherwise. It is of course vital that the trial is reported on, as the public have the right to know and scrutinise the public administration of justice. Caution should be exercised, as with all criminal trials, particularly those attracting heavy media attention.

At what point could such reporting become prejudicial to the fair administration of justice or potentially impinge upon the rights of an accused to a fair trial? How do we protect the integrity of the jury trial in the digital era in which we live? How can we balance the right of an accused to a fair trial against the idea of open justice? There are legal restrictions on what the media can and cannot report on and this is key to protecting the victim, the accused and other individuals involved. Reporters must be very careful about what they report on in a case, as there is a risk that they could print something which could affect the result of a trial in court, or make it impossible for the accused to get a fair trial.  They also have to exercise caution to ensure the integrity of the evidence, protect the victim should they require anonymity, and protect their good name.

Jurors have to be able to deliver a verdict solely based on the evidence presented in court, and if they are subjected to print, online or broadcast media which could potentially affect their fair assessment of the evidence presented, there is a real risk that they could be influenced. In addition, an accused has the right to defend her/himself and is afforded the means to do this in court by countering and addressing any evidence submitted or proferred against them. However, in the media, be it print or social, they are not provided with this opportunity and there is a real risk that judgment is cast before the trial concludes. We have seen this often with what is called “Trial by Twitter”.

Is the right conferred on an individual to a fair trial under Article 6 of the Human Rights Convention and the Human Rights Act at risk? While the victim in criminal cases needs to be protected, so does the accused. The media bears the weight of this responsibility and this is something which ought to be borne in mind by those of us who ingest the media in all its forms.

For further insight into legal issues in Ireland or the UK, contact our dual-qualified solicitor Caoimhe Boyce on cboyce@meaby.co.uk.

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Decluttering, Moving and the Fittings and Contents Form

Moving home is a good opportunity to declutter especially if it’s been a long time since your last move.  If you own a lot of stuff, it can be daunting thinking about packing everything away in boxes and loading it all on a removal van and unpacking and arranging everything at your new home.

Taking time before your move to have a clear out can make things easier when you come to move.  It’s amazing how much stuff can accumulate over the years.  If you have a large house and/or a lot of stuff, the sooner you start the better.  It can be a daunting task.  But it can be broken down into smaller steps.  You can start one room at a time.  You can break this task down further by tackling one drawer or one cupboard at a time.

William Morris said, “Have nothing in your homes that you do not know to be useful, or believe to be beautiful”.  When you’re considering whether to keep or discard an item, keep this in mind.  Ask yourself, “Does this item serve a useful purpose?  Will I use this?  Will I enjoy having this item on display in my new place?  Or will it just stay in a box gathering dust?”

When you sell a property, your solicitor will ask you to complete a Fittings and Contents Form.  In this form you will be stating the items that will be included in the sale and the items that will be excluded from the sale.  The contract will contain a contract clause which will refer to items that are included and items that are excluded as shown on an attached list, so this form will become part of the contract.  The contract will usually also contain a clause requiring you to offer vacant possession on completion which will mean that you will need to leave the property before a specific time which is stated in the contract (usually sometime between 12pm and 2pm) and to take all your possessions with you, except for those items which you have stated in the Fittings and Contents Form that you are leaving at the property.

The Fittings and Contents Form does not mention everything and mainly refers to items such as carpets, curtains, white goods, fitted cupboards, etc.  It will not refer to furniture and personal items.  There are blank spaces on the form where you can include items not mentioned in the pre-printed form or you can attach an additional page to the form listing further items that you would leave at the property or that you would like to offer for sale.  Such items could include furniture (such as sofas, tables, chairs, etc) or garden items (such as garden equipment, trampolines, wendyhouses, etc).  Offering your framed posters of Barry Manilow or your 5,000 piece Swiss cowbell collection will probably be a bit optimistic.

The buyer may not necessarily want you to leave certain items at the property and may ask for these items to be removed from the property on completion.  For example, the buyer may already have their own washing machine, Barry may not fit in with their intended décor or they may have a Swiss cowbell phobia.  If the buyer specifically wants these items to be excluded, you will have to take these with you or alternatively take them to the charity shop or sell them on Ebay before you move.  Some local authorities collect bulky items for free or for a small fee if you arrange a delivery time with them.

It is very important that you do not leave anything at the property on completion that you have not stated in the Fittings and Contents Form or in writing via your solicitor to be included in the sale. You should also check outbuildings and storage places to make sure these are emptied of all belongings and rubbish and junk.  Your buyer will consider it an unpleasant surprise if they find an old mattress in the side alleyway, the shed full of junk or a large forgotten garden gnome collection in the attic.  Your buyer will likely then contact their solicitors who will be in contact to point out these items, point out that you were required to give vacant possession and will ask you to clear the property of all junk, rubbish and miniature bearded people.  If you do not clear the property, the seller could pursue you for reimbursement of removal costs that they incur in connection with arranging these items to be removed themselves.

It is also important that you do not take with you or throw away or sell any items which you have stated in the Fittings and Contents Form that are included in the sale.  The buyers could try to pursue you for replacements or reimbursement of the value of the items.  It is therefore a good idea to keep a copy of the Fittings and Contents Form that you completed and regularly check the form when decluttering and when preparing for your move.

If you are planning to sell a property, please contact Brian Craig on 020 7703 5034 or bc@meaby.co.uk for timely advice.

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Blogs

You’re a solicitor, not a bank – why are you asking about my finances?

The majority of property transactions involve clients sending some money to their solicitors.  For a purchase, that sum might be tens or even hundreds of thousands of pounds.  Since the 2002 Proceeds of Crime Act came into force, solicitors have been required to carry out ever more stringent checks on their clients, and where their client’s funding comes from.  The reason for this is to verify, as far as solicitors can reasonably do so, that the funds are not the proceeds of crime.

Figures released recently by Fortytwo Data suggest that 32% of “suspicious activity” reports made to the National Crime Agency (NCA) related to residential property transactions.  Money laundering is, according to a definition given on Wikipedia, “concealing the transformation of profits from illegal activities and corruption into ostensibly ‘legitimate’ assets.”  Where any suspicious activity is noted by a solicitor, that solicitor must make a report to the NCA of their suspicions – the NCA will then consider the report and decide within a week whether the solicitor may proceed.

It should be noted that the “profits from illegal activities” mentioned in the definition above does not just relate to the sort of money laundering that you would expect to see in Narcos – if it becomes apparent to a solicitor that a client has not paid their taxes, a report will need to be made to the NCA.

When a client transfers funds to their solicitor, the solicitor must enquire as to how the client has acquired the funds, to verify that the funds are not in any way suspicious.  It is not sufficient that the client’s money is held in a bank before being transferred to the solicitor – we must still query the original source of the funds.

It is the querying of the original source of the funds which often irks clients – if you are using funds from long-held savings, or receiving a gift from your parents, and your lender has already approved your use of those funds, why would we have to ask questions?  Simply, it is because the lender would not be “laundering” the funds themselves – but we would be by allowing the money to pass through our account.  Accordingly we must verify the source of every last penny that we receive towards the acquisition of a property.

If a client tells us that he is a student but somehow has £100,000 in savings, we will have to ask how he has acquired those funds.  On the other hand, if a client is receiving a small gift from her very wealthy parents, we still have to ask the parents how they have acquired those funds, and we must verify the identity of the parents.

So, please remember, when your solicitor asks you apparently intrusive questions about how you can actually afford your dream property, we are merely asking you to assist us in upholding the rule of law.

If you are buying or selling a property, please contact Andy Roscoe at Meaby&Co for advice: andy@meaby.co.uk or call 020 7703 5034.

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