Dubai Court refuses extradition of Meaby’s client, Sanjay Shah

On 31 May 2022, Sanjay Shah was arrested by the Dubai Police following a request for his extradition.

Meaby&Co instructed Horizon & Co, a local law firm in Dubai to act for Mr Shah in the extradition proceedings. Meaby&Co worked closely with Horizon & Co to defend the extradition request. On 12 September 2022,  the Court ruled that Mr Shah should not be extradited to Denmark. The full Judgment is awaited.

It is anticipated that the Danish Attorney General will seek to appeal the Court’s decision.

Blogs

IT’S CRUCIAL TO UPDATE YOUR WILL!

It’s Update your Will Week which runs between 28th March – 3rd April.

New research has revealed 47% of people haven’t updated their will in more than five years.

This means nearly half of wills in the UK are likely to be out of date.

Having an up-to-date will is crucial in ensuring your wishes are carried out in the way you’d like when you die. It can also help ease distress for loved ones and minimise disputes.

If it’s been over five years since you last reviewed your will, or your circumstances have significantly changed recently – due to a new marriage, divorce, birth or even death in the family – we urge you to update your will now.

Where possible, you should always speak with a lawyer specialising in later life planning. They’ll be able to offer specialist advice and experience when laying out your wishes and give useful guidance on ways to reduce inheritance tax.

Contact one of our expert lawyers today. Call 0207 7035034 or email us at info@meaby.co.uk.

To find out more visit: https://www.meaby.co.uk/wills-probate-powers-of-attorney-solicitors/

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Employers Warned Not To Ignore ‘Whistleblower’ Concerns

Employment Tribunal Victory For Meaby&Co

The recent Employment Tribunal (“ET”) decision in Dr B Radeljic v University of East London: 3201164/2020, in which Meaby&Co successfully represented the Claimant, illustrates the dangers of an employer refusing to address an employee’s grievances when those amounted to “protected disclosures”.

The factual matrix of the claims was:

The Claimant was a Reader of International Relations at the Respondent from 2008 to 2020. Academically, the status of “Reader” is one below that of “Professor”. In early 2019, he applied for professorship.

The promotion process was characterised by many significant shortcomings on behalf of the Respondent. When the Claimant expressed concern about  those procedural flaws, both in relation to his and other employees’ promotion applications, the Respondent’s officers, apparently due to their knowledge of the veracity of those and their potential to cause embarrassment to it, either tried to avoid addressing the concerns directly, or eventually, when the Claimant persisted in seeking the truth to his concerns, stopped engaging with him, presumably in the hope that he would give up and the complaints would disappear.

The Respondent did not reckon on the Claimant’s tenacity. He submitted a formal grievance detailing those procedural shortcomings, which the Respondent attempted to persuade him to have considered informally. The Respondent employed a number of sham considerations of his promotion application, eventually finding some spurious grounds on which it felt it could reject that. The Claimant appealed those, once again citing the procedural flaws. Again, the Respondent attempted to avoid addressing the allegation of the 2019/20 promotion round’s procedural flaws by focusing solely on the merits of his promotion application, and ignoring his wider concerns.

The Claimant engaged Meaby & Co, who corresponded with the Respondent, laying out his concerns exhaustively in the hope that it would address those. After further months of delay and obfuscation on behalf of the Respondent, the Claimant resigned from the Respondent, stating that its failure to address those concerns, over 9 months after the date he first raised those, was a fundamental breach of his contract of employment which entitled him to claim that he had been constructively dismissed.

The Claimant brought ET claims for:

  1. Constructive unfair dismissal;
  2. Automatic unfair dismissal for making a protected disclosure (“whistleblowing”);
  3. Detriment for making a protected disclosure; and
  4. Wrongful dismissal.

In an unusually conclusive Judgment, the ET agreed with him and upheld all his claims.

Lessons To Be Learned By Employers

While remedy has yet to be determined or agreed between the parties, a number of lessons can be learned by employers faced with allegations from an employee which could be construed as “whistleblowing”. If an employee makes “protected disclosures” (qualifying disclosures in the public interest), an employer should not ignore those. If it does, it could have the following results:

  1. An employee being entitled to claim that by not addressing his complaint, they are entitled to resign and claim that they have been constructively dismissed;
  2. In those circumstances, they are unlikely to have been paid their notice pay, and if not, will be entitled to make a claim for “wrongful dismissal”;
  3. If that is successful, the employee’s restrictive covenants fall away;
  4. The Compensatory cap for a successful “ordinary unfair dismissal” claim is currently £89,493 or 52 weeks’ salary, whichever is the lower. There is no such cap on a successful “automatic unfair dismissal” claim, which is the claim governing an employee’s dismissal for whistleblowing.  Although the ET will make a determination on how much to award a successful Claimant based on the Claimant’s losses, it can substantially exceed the Compensatory cap for ordinary unfair dismissal.
  5. The employer suffers significant reputational damage, both as a result of failing to address the original whistleblowing, and the subsequent negative publicity from the ET’s Judgment. It risks being perceived as an employer which does not value its employees or their views.

 

Meaby&Co have lawyers experienced in representing both claimants and respondents in ET claims, including whistleblowing.  Should you require further information on the above case or advice on its implications, please contact Chris Marshall on 0207 703 5034.

 

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Airspace Development Schemes

Airspace Development Schemes

Since August 2020 freeholders have been able to develop the airspace above the roof of the building without full planning permission under permitted development rules.

This new rule allows up to two additional storeys, where the existing building consists of two or more storeys; or one additional storey, where the existing building consists of one storey.

The initial building must have been constructed between 1st July 1948 or after 28th October 2018. For the most part and for comfort, prior approval will be sought first.

Freeholders (which we shall describe as the building owners in this note as that description could include a leaseholder with a pre-existing interest in the rooftop) with appropriate buildings ripe for such development will want to consider how they can maximise the value in their rooftop. If they feel bold or have prior experience then they might look to build the extra storeys themselves.

If not, they will look to other options.

The easiest and cleanest method is to sell their interest to a third party who does have the relevant expertise and financial backing to build the extra storeys. However, this may mean selling the reversion to pre-existing tenancies which will mean a loss of the ground rent income. The benefit of this route is that the building owner does not have to police the development and mediate between a new rooftop leaseholder and the existing leaseholders who may not welcome development. A sale of the building owner’s interest might either mean selling their property or, if the property is held by a company, selling the shares in that company.

Alternatively, rooftop and airspace leases are becoming more common. Coupled with other necessary rights such as licences to alter and scaffolding rights, a grant of a lease to a developer creates a leaseholder of that developer and grants the ability for the developer to build on the rooftop.

An alternative is that the building owner might seek to grant a developer rights to build the extra storeys. If this method is used then thought will have to be given as to how the developer will receive the financial benefit of having done so. One option is securing a joint venture agreement prior to the development in which the building owner and the developer agree what will happen with the additional storeys once constructed and how the profits will be split. Alternatively, the building owner and developer might consider a promotion agreement directing that the dwellings created by the additional storeys are marketed, sold and the profits dealt with in accordance with that agreement. Ultimately, if the developer has no proprietary interest in the rooftop, it will have to be the building owner that grants any leases to the end user.

Such a variety of options creates opportunity for the contracting parties to decide how to structure the deal financially. A developer might pay the building owner for the deal in advance of construction or sale or, alternatively, the building owner may defer payment by agreeing to be paid out of the sale proceeds.

If you have any questions on how to structure a rooftop development deal, please contact Meaby & Co at nc@meaby.co.uk or on 020 7703 5034.

We also have a website dedicated to this area of law: Rooftop Law

airspace legal firm
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The Impact of the Landlord and Tenant Act 1987 on Rooftop Development

The Impact of the Landlord and Tenant Act 1987 in the context of Rooftop Development

The Landlord and Tenant Act 1987 requires a landlord, in the event that they decide to sell to their interest on the open market, to offer it to the existing leaseholders before any sale to a third party.

Ownership of the freehold by residential leaseholders can be a good thing, of course. But if the leaseholders do not want to or cannot buy their freehold then this can cause delays in commercial sales.

The existing leaseholders’ right of first refusal applies provided that there are two more residential flats in the landlord’s building held by qualifying leaseholders and, of those flats, that they constitute more than 50% of the flats so contained. However, this obligation does not apply if the total extent of the commercial part of the building is more than 50% of the internal floor area.

The non-residential status of parts of the building might include an intention to convert from residential to non-residential in the future and this may be a way to circumvent the right of first refusal procedure although this would probably take longer than the right of first refusal process as only two months need to expire from receipt of those notices.

There are various exempt landlords but these are unlikely to be private landlords as exemption includes bodies such as housing trusts.

Avoidance techniques include putting a head lease in between the freehold and the leases of the residential long leaseholders but this requires advance planning. It is worth bearing in mind that the permitted development rights for rooftop extensions apply to buildings constructed between 1948 and 2018. Given that any existing residential flats are likely to have already been sold, unless thought was given before the sales of the residential flats to qualifying leaseholders then it is likely that the right of first refusal process will need to be followed as earlier blocks are unlikely to have a head lease in place to take advantage of this loophole.

Other exemptions include disposals by way of a gift to members of the landlord’s family. So, for example, if it is proposed that there is to be a lease of the rooftop and airspace and the reversionary interest is owned by a private individual than that private individual might grant a lease to a family member and that family member might assign it to the proposed developer.

Another loophole is the grant of a rooftop/airspace lease to an associated company of landlord. This is similar to a transfer to a family member before selling on to the third-party. However, both this and the grant of a head lease that require advance contemplation of the sale of the landlord’s interest.

We are aware that sometimes landlords set up associated companies years prior to any sale to satisfy the requirement that the company must have been an associated company of the landlord for a period of two years.

Alternatively, if a company, a landlord might consider selling the shares in the company but this would only work in practice if that company only held that one asset (unless a portfolio sale is intended).

Some might feel that if the tenants accept the offer made by the landlord under the right of first refusal process then does it really matter who they sell to? However, most rooftop and airspace leases (and this is the type of transaction envisaged by this note) would be far too complicated and expensive for the existing leaseholders to consider taking it up. Very few residential leaseholders fancy themselves as developers (although never say never and we saw one instance of this in 2021). Generally speaking and in reality: not many residential leaseholder would want to pay the sort of premium that a developer would pay to the landlord to thwart that development.

 

If you have any questions on right of first refusal, please contact Meaby & Co at nc@meaby.co.uk or on 020 7703 5034.

Blogs

Stamp Duty Land Tax and Non-UK Residents

A surcharge for Stamp Duty Land Tax (SDLT) is payable when a non-UK resident buys a major interest in a residential property for £40,000 or more. There is no set definition of a “non-UK resident” and the HMRC applies different SDLT residence tests dependent on the buyer’s circumstances.

Test 1: Buying as an Individual

To be classed as a non-UK resident when buying a property as an individual you must not be present in the UK for at least 183 days during the 12-month period prior to your purchase. For the purposes of this test, England, Wales, Scotland, and Northern Ireland are considered as the UK.

Test 2: A non-UK resident buying with someone else

If you are a non-UK resident buying a property with a UK resident, then all buyers are treated as non-UK buyers in relation to the transaction.

Test 3: A non-UK resident buying with someone whom in which they are married to/in a civil partnership

If you are a non-UK resident who is married to/in a civil partnership with a buyer who is a UK resident (or vice versa) you may not be liable to pay the SDLT surcharge for non-UK residents. HMRC guidelines advise that “as long as you are not separated and neither of you is acting as a trustee of a settlement, if one of you is UK resident in relation to the transaction then you are both treated as UK resident.”

If you are considered as a non-UK resident for SDLT purposes, a 2% surcharge is added to the relevant SDLT band.

For example, Alex purchases a freehold residential property for £500,000 on the 1st of October 2021. Alex doesn’t already own another property but is not a first-time buyer. Alex is considered a non-UK resident as Alex has only spent 100 days in England within the past 365-day period.

Alex’s SDLT liability is calculated as follows:

  • 2% up to £125,000 = £2,500
  • 4% of £125,001 to £250,000 = £5,000
  • 7% of £250,001 to £500,000 = £17,500

Alex’s total SDLT liability is therefore £25,000

Alex may be eligible for a refund on the 2% surcharge if Alex is present in the UK for at least 183 days during any continuous 365-day period that falls within the 2-year period:

  • Beginning 364 days before the effective date of the transaction (2nd of October 2020)
  • Ending 364 days after the effective date of the transaction (30th of September 2022)

If you have any questions regarding property matters, please contact Meaby & Co at info@meaby.co.uk or on 020 7703 5034.

CAN STAFF DEMAND FLEXIBLE WORKING RIGHTS?

Eighteen months into the Coronavirus Pandemic, which has involved lengthy periods of enforced home working for staff, it is clear that for many businesses, working from home as the new normal has been a success.

In the days pre-pandemic many employers were reluctant to allow their staff to work from home, fearing that the privilege would be abused and that staff would be less productive.   There were certainly trust issues in allowing staff to work from home.

During the Pandemic many employers have actually discovered that their staff have been just as productive and, in some cases, even more so.

There have also been many benefits for staff who have been forced to work from home in that they have enjoyed a better work-life balance, without the daily commute to the office, which was time consuming and costly.   It would be fair to say that many have enjoyed these benefits which have also enabled them to save money from not having the daily commute.

Now that Coronavirus restrictions have been eased, and staff are now returning to the office, many UK employers are anticipating an increase in flexible working requests. In addition, the Government has issued a Flexible Working Bill which suggests updating the law on the right to flexible working and this is dealt with below.

Now that restrictions are easing, many employers legitimately want their staff back in the office.  There are still concerns as to how remote working can be effectively supervised, as well as the importance of teams working together in a face-to-face setting which may generate better results especially in a sales environment.

There is also the argument that it is important for younger members of staff to work in the office and to integrate and learn from their peers and from management. This cannot be undertaken effectively from home and Zoom and Microsoft Team video meetings are not as effective and are not a substitute.

What is flexible working?

Flexible working can take many forms, for example it can include the following:-

  1. Requesting a reduction in hours and days to part time working.
  2. Requesting hybrid working patterns involving more working from home.
  3. Looking at Job share arrangements.
  4. Changing working hours.
  5. Compressed hours worked over fewer days.
  6. Flexi-time arrangements involving working longer hours and banking time to take off in the future.

Quite often the request is made as a consequence of individual members of staff experiencing life changing experiences for example the birth of a new baby, or to accommodate care arrangements for an elderly relative and dependent.

Prior to the Pandemic, statistics show that only one in three flexible working requests were successful.

Since the Pandemic, and according to a survey carried out by Ernst & Young,  nine in ten people said that they wanted more flexibility about where and when they worked once restrictions were eased.   Only 22% of those surveyed would opt for fulltime working hours in the office, with the majority wanting to work from home two or three days per week.  It was also surprising to learn that 33% wanted a shorter working week.

A recent YouGov survey has also confirmed that the majority of staff would prefer to continue to work from home at least some of the time.  The survey also shows that some 40% of employers expect more than half of their workforce to work regularly from home after the Pandemic has ended

What is the current law?

Currently the right to request flexible working arrangements is reserved for employees as opposed to workers, and an employee will only be able to make the request if they have a minimum of 26 weeks’ continuous service.

Many employees wrongly believe that they are entitled to flexible working rights especially as it has been so successful for many businesses during the Pandemic.   Unfortunately, this is currently not the case, as employers only have to give consideration to such requests.  In other words employers do not have to agree and grant flexible working as long as they can show that they have considered the request.

Employers do however have a legal obligation to deal with flexible working requests from their employees in a reasonable manner and can only reject the request for one or more of eight business reasons specified in the legislation.   The eight business reasons are-

  1. The burden of additional costs.
  2. The inability of the employer to reorganise work amongst existing staff.
  3. The inability to recruit additional staff.
  4. Detrimental impact on the quality of work.
  5. Detrimental impact on performance.
  6. Detrimental effect on the ability to meet customer demand.
  7. Insufficient work for the periods the employee proposes to work.
  8. A planned structural change to the business.

The starting point for employers is also any contract of employment which may state a place of work for example the office address of the business.   Now that restrictions have been eased (since July 19th 2021) an employer can reasonably request that their staff return to the workplace and on a full-time basis.   In fact the Government has been actively encouraging a return to the office.

If any employee refuses to return to the office, then this could be viewed by the employer as completely unreasonable and could lead to the implementation of disciplinary proceedings for example for refusing to carry out a lawful instruction and also it could be classed as unauthorised absence.

Once a flexible working application has been made and dealt with, the employee will then have to wait a further twelve months to make a new request.

If as the employer, you receive a flexible working request, you will usually need to arrange a meeting with the employee who has made the request.   There is also a form that can be completed by the employee which asks them to comment on how they believe that their flexible working will impact on the business and other members of the team.

The process must also be dealt with within a period of three months and this includes any appeal against the original decision.  This period can however be extended by agreement between the employer and the employee making the request.

It is also important that employers ensure that any objection to flexible working requests is objectively justified.  Employers should particularly ensure that they are not for example discriminating against any employee who has made the request, for example a female employee wanting to reduce her hours of work or to work from home on a more regular basis, and this also includes treating the employee detrimentally on the basis that they have made such a request.   Any form of discrimination and detrimental treatment are actionable in the employment tribunal and these are rights available to such employees from day one of their employment.

There is also an ACAS Code of Practice on handling flexible working requests that employers need to be aware of and it is recommended that they take some time to review them.

If any flexible working arrangements are agreed then this may lead to a change to some of the employee’s terms and conditions of employment.     Any formal changes to terms and conditions of employment should be communicated to the employee in writing.   It may be the position that any changes are agreed on a trial basis with a view to revisiting the arrangements, say after three months to see how they are working out, with the employer retaining the right to revert to the previous arrangements if they do not work out.  Again it is important to confirm this in writing to the employee so that the position is clear.

What has the Government proposed?

The current law of flexible working is now outdated and the Government plans to modernise the way we work and to make the right to request flexible working a day one right – from the start of the employment relationship.

The Government did pledge this commitment in its 2019 election manifesto and so it is not something so new.  The Pandemic however has acted as a catalyst for the Government to push ahead with its proposals and it has issued a Flexible Working Bill which is being considered by Parliament.

The proposals also look at reducing the current one year per application rule as well as cutting the current three-month period that an employer has to consider any request.

In addition, if an employer is unable to accommodate a request, it is suggested that they would need to think about the alternatives that they could offer, for example if they are unable to change the employee’s hours of work on all working days, then can they consider making the change for certain days?

The consultation also looks at a range of flexible working methods such as job-sharing, flextime, compressed and annualised hours, staggered hours, and phased retirement.   The Government also wants employees to better balance their work and home life, and especially those who care for children and who have other care responsibilities or who may be new parents or disabled.

The Government also believes that the proposals that it is putting forward is good for British business on the basis that companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover, thereby boosting productivity and competitiveness in the process.

There are also some areas where flexible working will not work and the Government still wants employers to be able to reject such requests if they have sound business reasons for doing so.

The proposals if implemented will benefit millions of people, and especially those who provide unpaid care where the Government proposes one week of unpaid carer’s leave per employee per year which will also be available from day one of employment.  The leave can be taken in half days to a whole week.

In summary, the Pandemic has taught us that flexible working can work for many employees and the Government has recognised this by proposing making the right to request such flexible working a day one right for all workers.  It is clear that the law does need updating in this area however the proposals still only enable workers to make a request as to actually being granted flexible working rights.   The employer is likely to retain the right to ultimately decide against implementing such flexible working rights if it chooses to.

If you have any questions relating to the right to make flexible working requests then contact Steven Eckett, Partner and Head of Employment here at Meaby & Co LLP.

Tel: 020 7703 5034  E-mail: seckett@meaby .co.uk

The difference between Legal and Beneficial Ownership

What is the difference between legal and beneficial ownership?

A legal owner is a person or persons who holds the legal title to the property under his, her or their name. You will know who the legal owner of a property is by looking at the register entries held by Land Registry.

However, the legal owner may not be the same as the beneficial owner. The beneficial owner is entitled to the benefit of a property (i.e. the actual value/ equity), even though the title refers to another.

For the most part, the legal and beneficial owners are the same.

However, sometimes they can be different and that is when the property is held on trust by a legal owner for another.

You can tell if a property is held on trust by something called a “Form A” restriction which appears on the title to the Property. The Form A restriction looks like this: “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”. It is that entry that tells you that the beneficial ownership of a property is not the same as the legal ownership”.

A change to the legal ownership (otherwise known as a change in trustees) does not necessarily mean that the beneficial ownership has changed.

So who is entitled to the benefit of a property?

You cannot always tell from the register held at Land Registry who “really” owns a property. It may be that the property is held as “tenants in common” (and for an explanation what this means see our previous article here: https://www.meaby.co.uk/joint-tenant-tenants-common/#:~:text=Tenancy%20in%20common%20means%20that,her%20will%20or%20intestacy%20rules) or it may be that there is a more complicated trust arrangement, perhaps set out in the trust deed.

Accordingly, you cannot assume that you are able to identify the beneficial owner(s) of a property just by looking at the entries at the Land Registry.

If you are buying, or otherwise taking ownership of a property, your solicitor must examine the title at the Land Registry, and ensure that the Transfer Deed is drafted in such a way as to guarantee that you receive the property free from the interests of any beneficial owners.

If you have any questions regarding property and trust matters, please contact Meaby & Co at info@meaby.co.uk or on 020 7703 5034.

MAISONETTE LEASES

What is a maisonette lease?

A maisonette lease is a lease of part of a building where the building is divided into two or more parts (but usually two) and each part is demised to the leaseholder (i.e. the leaseholder owns the whole of their part including the structural and external parts). In modern times leases are more commonly drafted so that the landlord retains the structure and just the internal parts are demised to the tenants.

How does this affect repair obligations?

In maisonette leases the leaseholder is often responsible for the maintenance and repair of their part which includes the structure. This can cause difficulties. Imagine an example where a converted house is effectively split in two: the leaseholder of an upper flat cannot ignore the structure of the lower parts, nor can it carry out repairs to their upper part without ensuring that the lower part is maintained and repaired when necessary. It would make little sense in the lower leaseholder having a contractor repair their part up to the horizontal boundary of the upper part and then having a separate contractor acting for the upper leaseholder continue where the other contractor has left off. The same is true of decoration. If the leaseholder of a lower part painted the exterior of the building up to the level of the upper part with the leaseholder of the upper part deciding to do their part at a later stage (or even in a different colour) then the exterior of the building would look very strange indeed! It is for this reason that it is more common that the landlord is responsible for the maintenance of the whole of the structure and decoration of the external parts. The landlord would then recover those costs from the leaseholder as service charge.

How does this affect insurance?

The position differs between leases. In maisonette leases usually each leaseholder insures their part (including structure). Sometimes the position is ignored and the leaseholder or landlord acquire a block policy and each contribute a proportion.

Further problems could arise when either leaseholder forgets to insure their part. For example, if the property burns down and the lower leaseholder has forgotten to insure or does not have inadequate insurance of their part then the upper leaseholder, even if adequately insured for their part, will suffer because there will be no lower part to build upon! It is for this reason that it is more common that the landlord is responsible for the insurance and reinstatement of the whole of the building and would recover proportions from the leaseholders.

Treatment of maisonette leases by lenders

The UK Finance Mortgage Lenders’ Handbook requires that “responsibility for the insurance, maintenance and repair of the common services is that of:
• the landlord; or
• one or more of the [leaseholders] in the building of which the property forms part; or
• [a] management company”
And where “the responsibility for the insurance, maintenance and repair of the common services is that of one or more of the tenants the lease must contain adequate provisions for the enforcement of these obligations by the landlord or management company at the request of the [leaseholders]”.

Separate insurance and repair obligations in maisonette leases can be made effective by including a clause wherein each individual leaseholder can compel the landlord to take action against the other leaseholders in the building but, generally speaking, whilst not defective, such leases are considered to be unwieldy.
Resolutions to defective leases

Defective title insurance policy can be obtained and whilst these do not solve the practical problem they can compensate a leaseholder and their lender against the financial risk that a maisonette or flat might fall in to disrepair or suffer uninsured damage or destruction.

The above is true as at September 2021

If you have any questions regarding maisonette lease, please contact Meaby & Co at info@meaby.co.uk or on 020 7703 5034.