Getting Your Paperwork in Order For Your Sale

In a conveyancing transaction, a seller’s solicitors will send contract papers to the buyer’s solicitors who will then review the paperwork and raise any necessary enquiries.  The seller and their solicitors will then need to answer the enquiries before the buyer’s solicitors can proceed to exchange.  Many enquiries are asking for documents which are referred to paperwork provided by the seller’s solicitors or in the buyer’s solicitors’ searches such as Land Registry documents, planning documents, building regulation certificates and guarantees.

A seller can assist in getting contract papers issued earlier and reducing the need for a buyer’s solicitors to raise enquiries by making sure they have their paperwork in order.  This may also save the seller money as parties such as the local authority, the Land Registry and other organisations charge fees to provide duplicate copies of documents such as leases, deeds and building regulation certificates.

When a seller buys a property, their conveyancer will send them a lot of paperwork during and after the transaction.  The seller should keep all the paperwork in a safe place so that they can give the paperwork to their conveyancer when they come to sell.  It’s fine to err on the side of caution and give your conveyancer lots of paperwork.  Your conveyancer will be able to work out what paperwork is relevant to send to the buyer’s solicitors.

If, during your ownership, you’re obtaining quotes for works such as window replacement works, gas boiler replacement and electrical works, it is a good idea to check that the company is registered with a reputable organisation such as FENSA, Gas Safe or NICEIC and to check that they will deal with the building regulations for the works.

If you carry out any works to the property, it is a good idea to keep the paperwork and add it to your file of paperwork for the property.  Buyer’s solicitors will usually ask for copies of planning permissions, building regulation certificates and guarantees and warranties in respect of works carried out at the property.  Providing this documentation at the start will mean the buyer’s solicitors won’t have to ask for these documents later on.

If when you bought the property, there were particular enquiries that were complicated and time-consuming to resolve, it is advisable to keep the paperwork in respect of those matters in case the same questions are raised when you come to sell.  For example, if you own a flat and your seller carried out building works without landlord’s consent and the seller had to obtain retrospective landlord’s consent in connection with your purchase, then when you come to sell, it is likely that your buyer’s solicitors will raise the same enquiry if you have not kept a copy.  If an issue was dealt with by the seller providing a legal indemnity insurance policy, then you can provide this policy to your buyer when you come to sell as most indemnity policies automatically pass to future buyers.  If, however, you have lost the policy by the time you come to sell, you may end up having to buy a new one.

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

Blogs

Latest Ruling on Prenuptial Agreements

A Judge of the Family Division of the High Court decided to give no weight at all to a Prenuptial Agreement, which featured in a divorce case, last week.

The case concerned an heiress of the Avon Cosmetics business. The parties lived together from January 2005 and married in November of the same year. They had two children and separated in 2017.

The Prenuptial Agreement provided that, in the circumstances which prevailed at the time of the divorce, the husband should receive half of the increase in value of three properties which were in the sole name of the wife in Barnes, Hanwell and New York. In fact, by the time of the divorce, the three properties had long since been sold and it was not possible to establish exactly what had happened to the proceeds of sale, but it was assumed that they had been invested in the family home in Barnes. That property was worth less than the combined value of the three properties at the time the parties signed the Prenuptial Agreement in 2005, meaning that the husband would receive nothing if the court upheld the Prenuptial Agreement.

The Prenuptial Agreement also provided that the agreement was deemed to have been made under the laws of New York State and that its validity, effect and construction should be determined in accordance with those laws, regardless of where either party resided or was domiciled at the time of the divorce.

The marriage took place on 26th November 2005 and the husband met the lawyer who advised him regarding the Prenuptial Agreement for the first time on 3rd November 2005. The lawyer was the lawyer who had acted for the wife in connection with her divorce from her first husband.

The Judge heard expert evidence to the effect that the agreement suffered from a fatal defect under the laws of New York State and therefore would not be upheld in that jurisdiction. For that reason and the facts that the husband had not received any advice on the law of New York State; the advice he had received could not be regarded as truly independent and the agreement did not meet the husband’s financial needs, the Judge had no hesitation in deciding to ignore the agreement. Instead, he awarded the husband a total of £1,333,500 – £375,00 of which would have to be repaid to the wife at a later date.

Our Head of Family Law, Joanna Toloczko commented:

“This case does not mean that Prenuptial Agreements are of no effect in English Law. What it means is that there are no short cuts in the preparation of Prenuptial Agreements and they must be prepared in the proper manner.

The provisions of the agreement must be broadly speaking fair and at least sufficient to provide for a party’s needs; both parties should have truly independent legal advice, with sufficient time for negotiation, free of the pressure of an impending wedding”.

For information and advice on all aspects of family law, please contact Joanna on 020 3861 5155 or at jtoloczko@meaby.co.uk.

Blogs

Without Prejudice?

The Without Prejudice (“WP”) rule works to prevent statements, whether in writing or orally and made in a genuine attempt to settle an existing dispute, from being put before a court as evidence against the interest of the party which made them. Effectively, if WP applies, a court can never be told of the existence or content of the WP dialogue.

In an employment context, an employer and employee may wish to enter into a WP dialogue to try to resolve an employment relationship which has soured. The WP mechanism allows the parties to have a frank conversation to facilitate that, without fear that it could be used in future proceedings. Please note that although a WP conversation has some of the properties of the “Protected Conversation” mechanism provided by S111A Employment Rights Act 1996, there are differences in their respective coverage and application.

If a party seeks to rely on the WP rule, it is best practice to use the term before starting substantive dialogue with the other party. Although invoking it is helpful in showing that the dialogue was so covered, it does not automatically ensure that it applies. There are circumstances in which a court will decide that although the phrase had been used, the nature of the dialogue did not satisfy the requirements that it be deemed to be WP, with the consequence that both its existence and content can be used in court.

One of those circumstances is where the communication “would act as a cloak for perjury or other unambiguous impropriety”. This is commonly referred to as the “unambiguous impropriety” exception and is only applied in the clearest cases of abuse of privilege.

A hypothetical example in employment would be the following.

An employee is summoned to a meeting with his managers and HR representatives, and told that the meeting is “WP”. He is told that he is at risk of redundancy but is given a proposed Settlement Agreement to terminate his employment, which offers slightly better terms than the employee is entitled to if his redundancy was to be confirmed. Clearly expecting the employee to accept the terms of the Settlement Agreement, but not making it clear that the statement is predicated on that expectation, the employer tells the employee not to come back to work, and that he will receive his notice pay in lieu of working it. The employee does not immediately sign the Settlement Agreement as he is not satisfied with the terms. There follows a time period during which the parties attempt to agree terms, and during this period, the employee does not return to work. During this period, in the numerous email exchanges to attempt to agree terms, the employer makes no complaint about the employee’s absence nor invites him back to work. After a few weeks’ impasse, the employer, frustrated at the employee’s refusal to sign the Settlement Agreement, and in a naked attempt to coerce the employee into accepting the terms of the current offer, informs the employee that he is subject to disciplinary action by the employer on the grounds that he has been absent from work without permission. The sanction for this could be summary dismissal, if the purported “unauthorised absence” is deemed by the employer to amount to “gross misconduct”.

But what about the employer’s assurance in the WP meeting that the employee did not have to return to work? The employer now points to the WP properties of the meeting, effectively stating that such a conversation never happened, and so the employee has been unilaterally absent from work. Under the terms of the employment contract, the employee was entitled to rely on the instructions by his superiors in the WP meeting. Indeed, he would be in breach of his employment obligations if he did not. Now he is being told that in effect, the employer denies that conversation took place and so he, the employee, is putatively in breach of his employment contract.

If the employee was disciplined in such circumstances, and as a result, issued Employment Tribunal or High Court proceedings, he could claim that the purported use of the WP rule had been abused and so the contents should be admissible to the Court. After all, the absence of bona fides by the employer in making a statement which it now claims, due to the use of WP, never took place, had materially disadvantaged the employee – he had been disciplined after relying on an assurance by the employer which the employer now denied that it made.  If the court decided that the actions of the employer amounted to “unambiguous impropriety” it has the right to lift the cloak of WP and so allow admission of the contents of the meeting to the court.  In such circumstances, it is hard to envisage a situation in which the court could not find that the employee had been unfairly treated.

It should be noted that the “unambiguous impropriety” argument is a high hurdle to successfully overcome, and will only be granted by the courts where the “impropriety” is obvious and manifest. The lifting of the WP veil  is not lightly granted. All parties which enter into such a dialogue should be aware of WP limitations and exceptions.

 

Meaby & Co are lawyers experienced in all employment issues. Should you require advice on the use of the WP or “Protected Conversation” process, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or cmarshall@meaby.co.uk.

No Fault Divorce to be Introduced

The government announced today that it will introduce legislation to implement a system of no fault divorce “as soon as parliamentary time allows”.

This follows the consultation period on the issue announced in the Autumn of 2018. Over 600 responses were received which were mainly in favour of the move to no fault divorce.

The anticipated change in the law means that couples that have not been separated for a minimum period of two years will no longer have to rely on adultery or unreasonable behaviour to obtain a divorce. Instead the requirement will be replaced with a requirement to provide a statement of irretrievable breakdown. There will be a minimum timeframe of six months from the petition to the final dissolution of the marriage.

It will no longer be possible for one party to contest a divorce. The two stage process of decree nisi and decree absolute will be retained.

Our Head of Family, Joanna Toloczko commented “The change in the law is good news for those who want to divorce without having to wait until they have been separated for a minimum period of two years. Even when the separation is amicable people normally want to achieve finality on property and financial issues as quickly as possible. In the past one of them would have had to allege adultery or unreasonable behaviour on the part of the other – to get the divorce proceedings underway. This often led to unnecessary animosity between them. That will no longer be the case. It is also good news that one party will no longer be able to block a divorce – after all, what is the point in fighting to remain married to someone who no longer wishes to remain to you?”

For further information and advice in connection with all divorce related matters please contact Joanna on 020 3861 5155 or jtoloczko@meaby.co.uk

 

 

 

REGISTERING THE DEATH

The death must be registered with the local Registrar of Births, Deaths and Marriages and it is essential to have a doctor’s certificate of death. This sometimes can be delayed if a post-mortem or inquest is required. It may be that an interim death certificate will be issued. (The information the undertakers need to know is whether the deceased is to be cremated or buried.) Usually you need to make an appointment to register the death.

Information relating to the deceased that you need to take to register a death, although not necessarily in this order is as follows:-

1. Surname
2. Forename in full
3. Previous names e.g. change of name by deed poll, marriage or partnership; that the deceased was given when he/she was born i.e. on their birth certificate
4. Date of death
5. Place of death
6. Last permanent address i.e. where the deceased usually lived on a permanent basis and had the majority of their belongings. This could for example, be a rest home.
7. Occupation, of if retired, occupation prior to retirement
8. Religion e.g. Catholic, C of E, Jew, Muslim, Humanist
9. Date of birth
10. Place of birth

You will be asked how many copies of the certificate you require and will need to pay the appropriate fee. Consider how many will be required to enable administration of the estate, as not everyone accepts photocopies of the certificate issued by the Registrar. It may be appropriate to discuss how many copies to obtain with the solicitors or person likely to be involved with the administration of the deceased’s estate, if they are familiar with the deceased’s financial position.

There are some occasions when you may wish, for one reason or another, to have Meaby and Co assist with co-ordinating matters with the undertakers and to help with arranging the service.

It is prudent to check 48 hours prior to the burial/cremation that all the arrangements have been put into place to ensure everything goes smoothly at this difficult time.

Can you negotiate with a Vulture Fund?

Many non-performing (or sometimes performing) loans over properties in Ireland and the UK have in recent times been taken over by vulture funds.

A vulture fund invests in properties which are performing poorly and may therefore be undervalued. These funds buy the debt from the bank and effectively step into their shoes in order to recover the loans, whether it is by agreeing a payment structure or appointing a receiver over the assets.

Many Irish investors in properties in the UK now find themselves dealing with vulture funds instead of the banks. But can you reach an agreement with a vulture fund in respect of your outstanding liability or are they a bit more ruthless than your high street bank?

Following a recent decision in the Irish High Court, bargaining chips may be back on the table for some borrowers who want information about their loan when it was sold to the vulture fund.

In the recent case of Eileen Courtney .v. OCM EMRU Debtco DAC, a fund has been ordered by the High Court to provide full details of what it paid for the loan of a specific borrower. The judgment dealt with the borrower’s application to see a copy of the loan purchase agreement so that she could, inter alia, see what price the fund had paid for her loans.

The fund in question argued that what it paid for the loan was confidential. However, the Court stated that what distinguished this case from previous cases seeking disclosure of the purchase price was that the borrower had made a specific offer to the previous loan “owner”, NAMA, to purchase the debt, but the offer was not accepted. The borrower is now arguing that she has an equitable right to redeem the loan for what she initially offered NAMA. Whilst the court did not rule on that argument, and the judgment only dealt with the application to see the loan purchase documentation, it does open the door for the argument to be made that the vulture fund should be forced to accept the offer made to the previous loan “owner”, ie bank. This has not been tested yet in the courts, but it may yet be persuasive to encourage the funds to come to a deal with the borrowers.

Will we see this come across the pond also and translate into the UK courts?

At Meaby & Co, we regularly act for Irish and UK borrowers with property interests in the UK, whose loans have been sold to a vulture fund or who are battling with their bank in relation to outstanding liability. If you have an issue you would like to discuss, please contact Caoimhe Boyce on cboyce@meaby.co.uk.

PREPARING FOR SEPARATION AND DIVORCE

Often clients come to see me for a consultation prior to making the final decision to separate and divorce. Usually, they ask me whether there is anything they need to do in preparation for the journey ahead. What is appropriate will differ from family to family. There may be things you would like to do that are just not possible due to the level of hostility between you. Of course things are very different for the person who has decided to end the relationship and may have spent months thinking about their decision and planning the way forward, compared to the person who may have only just been informed of the decision and may be in total shock and disbelief. Here are some of my recommendations.

Talk to each other

The more communication there is between you, the less likely it is that you will end up in a bitter court battle. Communication is not a one way street, it also involves truly listening to the other person. Talking face to face means that there is less opportunity for a misunderstanding to arise than if you communicate by text or email. To put it bluntly, the more you manage to agree between yourselves, the less money you will spend on lawyers.

Plan how to tell the children

The better prepared you are, the more supported the children will feel. If you can, tell the children together. Prepare what you are going to say and present a united front. Do not give mixed messages and do not denigrate each other to the children. Don’t blurt it out – arrange a suitable time and place to tell them.

You may choose to complete a Parenting Plan together which sets out what you have agreed about the arrangements for the children. Many specimen Parenting Plans are available online.

Get your documents in order

Whichever way you decide to sort out the property and financial issues, you will both need to have a good understanding of what there is first. Indeed, if you decide to go to mediation or to negotiate via solicitors, you will be encouraged to go through the “disclosure” process as a first step. It may be that you will not have all of the required information and documents to hand. For example, it is unlikely that you will have a document confirming the cash equivalent transfer value of your pension, available. These things can take some time to come through so apply for them at an early stage. If you are able to present your solicitor/mediator with a full set of documents at the outset, this will also save you money as the solicitor will not have to keep reviewing the documents and chasing you for missing items.

Get a good solicitor on board

Family lawyers are happy to see clients for a preliminary consultation so that you can find out where you stand. Good quality, comprehensive advice will help you to make your decision with clarity and confidence. A good solicitor will not pressure you into making a decision before you are ready to do so.

Check out the Resolution website

Resolution is the largest organisation of family law solicitors in England and Wales. Members of Resolution are committed to a constructive and non-confrontational approach to family law cases, which puts the interests of the children at the heart of all decisions and aims to maintain the dignity of the parties. You can use the website to search for a solicitor or mediator close to where you live. Parts of the website are open to members of the public and contain a lot of invaluable information about all aspects of family law.

For all family law enquiries please contact our Head of Family Law, Joanna Toloczko on 020 3861 5155 or at jtoloczko@meaby.co.uk.

What if I do not wish to act as an Executor under a will?

Where a will appoints an executor, they have the greatest entitlement to apply for the Grant of Probate to administer the estate of the deceased.  However, if the executor is unwilling or unable to act, then they may reserve their right to become an executor.  There may be many reasons for this; they lost touch with the deceased or they have moved, perhaps to a different country. They may themselves by unwell or incapacitated, or they may have doubts as to the validity of the will.

If the executor’s reluctance is only temporary in nature, then they may ‘reserve’ their right rather than ‘renouncing’ it entirely.  In order to do this the other executors applying for the grant must give that person notice that they are applying for the grant of probate without them.  The Probate Registry will then make a note on the Grant that the person wishing to reserve their executorship has done so.

This means that, in future, if that person wishes to ‘revive’ their executorship and act in the administration of the estate, they may do so.   If the executor wants to relinquish completely their right to a grant of probate, they may make a renunciation provided they have not intermeddled in the estate, that is carried out any actions which an executor would perform in the course of administering the estate.  Unlike having power reserved, a renunciation of the right to probate is usually irrevocable and absolute. Therefore, the right may not be revived in all but the most exceptional circumstances.

If you have any questions regarding obtaining a grant of probate, do not hesitate to contact our Probate Department on 0207 703 5034 or by emailing laura@meaby.co.uk.

 

Getting Your Planning and Building Regulation Paperwork in Order

If you’re selling a property, you will be asked to complete a 16 page questionnaire called a Property Infomation Form (also called Form TA6).  Section 4 asks if any building works or window replacement works have been carried out at the property and asks to provide copies of any necessary planning permissions and building regulation approvals.  Section 12 asks if any boiler installation works or electrical works have been carried out to the property and asks for the building regulation certificates for these works.

In order to avoid delays in a transaction, it is a good idea to keep any planning and building regulation documents in a safe place so that you can provide these to your conveyancer at the beginning of a transaction.  If you don’t provide these, the buyer’s solicitors are going to ask for these once they have reviewed the contract papers.

If you do not hold these documents, you could ask the contractor who carried out the works to provide these.  Some contractors are more helpful than others in responding once the works have been completed and they have been paid, and some contractors go out of business.  If you cannot obtain these from the contractor, then there are other ways to obtain the documents.

In respect of planning permissions, you can contact your local authority’s planning department to obtain copies.  Most Council’s websites have a planning database where you can search for planning applications and download copies of planning permissions.  Copies of building regulation approvals issued by the Council are not as readily available online so you may have to contact the Council’s Building Control Department directly for these.

If planning permission and/or building regulation approval was not obtained for building works, then the buyer’s solicitors are likely to ask for an indemnity policy to cover the buyer for costs and loss in value of the property in the event that the local authority later seek enforcement action in respect of planning and/or building regulation consents not being obtained.  Indemnity policies are issued on the basis that contact has not been made with the local authority regarding the works, so if you think that consents were not obtained for works carried out at the property, you would need to avoid contacting the Council regarding the works if you wanted to leave open the option of being able to offer an indemnity policy.  Another option is to obtain retrospective consent, but this could be time-consuming, it could delay the sale and if the Council do not grant consent, you would not be able to offer an indemnity policy.

Building regulation approval for installations such as gas boilers, electrical works and glazing are usually dealt with by other registration bodies.

For window and glazed door replacement works, building regulation certificates are usually issued by FENSA.  You can check their website – https://www.fensa.org.uk/fensa-certificate – to check if they have a FENSA Certificate registered against the property address and you can order a copy from their website.

For building regulation certificates for electrical works, you can visit the website www. checkmynotification.com to search for and order a certificate.

Gas Safe usually issues building regulation certificates for gas boiler installations.  You can visit their website at https://www.gassaferegister.co.uk/help-and-advice/gas-safety-certificates-records/building-regulations-certificate/ to search for and order a certificate.

If you are planning to sell your property, it is a good idea to take some time to check that you have your paperwork in order and to order any planning and/or building regulation documents that you do not hold as this with save time later on.

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

Employment Appeal Tribunal decision on Sexual Orientation Discrimination

The authority of ‘The Governing Body of Tywyn Primary School -v- Mr M Aplin UKEAT/0298/17/LA demonstrates that sexual orientation discrimination is still unfortunately an issue in 2019.

The facts

The Claimant Mr Aplin was a 42-year-old primary school Head Teacher.  He was openly gay and met two 17-year-old males on ‘Grindr’ which is a dating app for gay men.   After two meetings the three of them had sex.

This came to the attention of the police and then the Local Authority’s Professional Abuse Strategy team which concluded that no criminal offence had been committed and that no child protection issues arose.

Notwithstanding this, the school implemented disciplinary proceedings which resulted in Mr Aplin’s summary dismissal.    They found that ‘his conduct, although not a breach of the criminal law, his perception of it and his inability to recognise any impact upon his role as Head Teacher and the reputation of the school and himself as its figurehead, so call into question his judgment as to undermine the necessary trust and confidence in him and make it untenable for him to continue as headteacher.’

Mr Aplin appealed the decision on the basis there were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the subsequent disciplinary hearing.   Various documents, for example minutes and police material that were relied on as part of the investigation were not supplied to Mr Aplin.

It is worth noting that by appealing, it kept Mr Aplin’s contract alive, however there were further procedural errors with the appeal process which led him to resign claiming constructive dismissal in addition to sexual orientation discrimination.

The Employment Tribunal decision

At first instance the Employment Tribunal after a five-day hearing,  found that Mr Aplin had affirmed his employment contract by bringing his appeal and that his claim of constructive dismissal succeeded.   The Employment Tribunal also found that the way that he had been treated overall gave rise to a reverse burden of proof and that in relation to the investigating officer, that burden had not been satisfied and that he had been discriminated against by the investigating officer because he was gay.

The School appealed against the decision.

The Employment Appeal Tribunal decision

The Employment Appeal Tribunal dismissed the school’s appeal for two reasons:-

  1. In relation to constructive dismissal it held that the Employment Tribunal was wrong to find that in bringing the appeal it gave rise to affirmation of Mr Aplin’s employment contract.   It held that instead he was giving his employer the opportunity to remedy the procedural defects and breaches.
  2. On the sexual orientation discrimination claim, the Employment Appeal Tribunal held that there were sufficient facts from which an inference of sexual orientation discrimination could be drawn, and the reverse burden of proof was justified. It found that the investigating officer had not given an adequate alternative explanation for his conduct which was viewed as discriminatory on the basis of Mr Aplin’s sexual orientation.

If you have any concerns about LBGTQ+ discrimination in the workplace or if as an employer you would like to update any anti-discrimination policies and procedures then contact Steven Eckett, Partner and Head of Employment on 020 7703 5034 or by e-mail seckett@meaby.co.uk