Kent Solicitors

It happens more often than you might think. You give an estate agent sole selling rights over your house for a period, the property does not sell and you change agents at the end of the period. What happens if the eventual buyer first saw the house through the first agents?

The first estate agent might well have a claim against you for commission. Look carefully at the terms of the sole selling rights. Sometimes they provide that commission is still due in these circumstances or if the first agent was the effective cause of the introduction

You need to look at the terms of the second agent, because you may well find that you have to pay them commission too!

Labels: Estate agent commission sole selling rights

This has rather crept in under the radar and could cause some upset in some communities

The Forced Marriage (Civil Protection) Act 2007 is to be brought into force in the autumn of 2008, enabling individuals to apply to the county court for a court order to prevent a forced marriage and offering civil remedies for those in forced marriages.

Labels: Forced Marriage

It happens quite a lot. A Husband and Wife own a property together. H forges signature of W on a mortgage to raise money. W finds out about it much later, often when the money and H have gone. The Lender seeks a sale of the property

Case law has shown that the mortgage is not a nullity, but it binds the forger in relation to any property interest owned by that person i.e. H and his half share. It creates, what we lawyers call, an equitable mortgage of H's beneficial interest

The Lender can apply to the Court for a sale to realise its money. The Court has discretion as to the timing of a sale.

In a case a few years ago, weighing up W"s circumstances, the needs of the 2 children and their ages and the Lender"s interest; an order was made for a sale of the property in 5 years time. W would get half the sale proceeds and the Lender would have to be content to take its money from H"s share, which might or might not be enough at the time

Labels: forgery signature mortgage charge

One growing area of work for us is preparing a Change of Name Deed. If you wish to anglicize your name or just be known by a different name, your dealings with banks and other institutions will be greatly simplified, if you have such a Deed

In order to prepare one we need sight of your original passport and a utility bill showing where you live; copy them and to know the name by which you would like to be known

Labels: change name deed

There is a right for an employee to take off to look after dependants for an emergency or unexpected situation. However, this does not cover accompanying visits planned in advance.

Check you contract to see if it gives a right to compassionate leaveIf not, plan your holiday as best you can. The employer may find it easier to arrange cover, if you take whole days, rather than half days off

Otherwise, you are thrown onto your employer's goodwill. As with most relationships, it helps if you have built up goodwill, in order to have a moral reason to ask to draw on it

Remember: a contract cuts both ways. The employer promises to provide work and pay. The employee promises to devote certain time and effort to the business - sometimes, to meet certain targets. Breach can lead to disciplinary measures and dismissal but the employer must operate a minimum procedure before imposing either sanction - else it is unfair dismissal

Labels: time off dependants unfiar dismissal compassionate leave

Ordnance Survey provides maps. You can download them on-line and you need to be licensed /have an account with them

In a recent case, a defendant company employed a student during the vacation. His university had a license - for the purposes of research - and he had a username and password.

Whilst working with the defendant company, the student used it to download maps to further his own studies (as he was entitled to do) but also for the business.

After the student left the defendant company, the latter (without the formers knowledge) continued to use his username / password (retained on their computer system) to obtain maps.

This was a clear breach of copyright by the defendant company

Labels: Copyright intellectual property

As a matter of public policy, public authorities need to be left free to do their job without fear of the consequences from individuals / businesses that are affected financially by their decisions

In a recent case, the court confirmed that a public health authority did not owe a duty of care to the proprietor of a nursing home, whose registration was cancelled under the Registered Homes Act 1984 (now replaced by the Care Standards Act 2000) but who was subsequently absolved of the wrongdoing / mismanagement which led to the cancellation and closure of the home

Labels: Public policy authority nursing home registration Registered Homes Act Care Standards Act duty

There are many ways a director can be held personally responsible and here is an illustration of one of those ways from a recent case

A company placed an order for goods. The director who signed knew (or should have known) that the company was insolvent and would not be able to pay for those goods

It was decided that an agreement signed by a director on behalf of a company contained an implied representation that the company had the capacity to meet its obligations and the director was personally liable for deceit since he knew that representation was untrue.

Labels: Company director personal liability insolvent misrepresentation deceit

When a business is sold, the employees transfer across to the buyer. Their contract of employment remains with the same terms. Clearly, where the buyer already has a workforce with different terms, there are problems of assimilation

In a recent case, the seller of the business had a retirement age for its employees of 60. The buyer had a retirement age of 65.

Until this case, it was thought that the situation had to remain and any attempt to vary it would be void.

This case held that the variation was not void and the employee could choose between enforcing the transferred acquired right or the newly-obtained right.

Labels: Transfer Undertakings Protection Employment Regulations 1981

What happens if you, as an Employer, suddenly realise that one of your employees no longer has the necessary clearance to work in the UK, perhaps because his time limited work permit has expired Should you dismiss instantly or follow the statutory dismissal and disciplinary procedures. A recent case has decided the latter, especially if the Employee is pursuing appeals / applications to extend the work permit

Labels: employment work permit statutory disciplinary dismissal procedure

Where the facts support it, the Court can order that a child"s surname be changed to reduce the risk of abduction by one of the parents and the court can make orders preventing the parent from seeing the child and limiting that parent"s right to make further applications to the court - all to be done in the interests of the children"s need for stability and absence of stress.

In a recent case, the father had threatened to abduct his 2 children and remove them to another county, applied secretly for passports for them, accused the mother and her new partner of abusing the children (not found to be true), breached a non-molestation order, made accusations of bias against the judge and allegations against the mother"s solicitors

The court made it clear that the father would have to change his ways if he was ever to see the children again

Labels: divorce children abduction contact

To follow up on a previous posting, it is becoming more and more difficult to become non-resident for UK tax purposes. In a recent case, the evidence before the Special Commissioners on whether a bonus paid to a pop music manager was taxable included an examination of his diary, bank records, credit card payments, cash withdrawals, living arrangements and working activities abroad, and his professed intention to leave the UK. It seems that to suceed in arguing that one is non-resident, there must be a distinct break in the pattern of the taxpayer's life.

Labels: UK residence resident income tax

Husband and Wife divorce; there is a bitter argument over finances that goes all the way to court; the judge awards W the former matrimonial home; it is transferred to W pursuant to the Court Order; H goes Bankrupt; H"s trustee in bankruptcy seeks to set it aside under the Insolvency Act 1986 s.339 as transaction at an undervalue. Does he succeed?...............yes according to a recent court case

Labels: divorce bankruptcy undervalue set aside

Where an executed lease does not reflect "the deal" as evidence by the Agreement for Lease, it is possible to rectify the executed lease on the ground of mutual mistake by reading words into it

Labels: lease rectification mutual mistake

A London employment tribunal has decided that an exclusive London club unfairly dismissed and discriminated against - on the grounds of age - a young woman when she was sacked from her job as membership secretary

The Employee claimed she had been dismissed her employer told her she was not old enough to deal with members

Labels: employment unfair dismissal age discrimination

An employment tribunal was entitled to reduce a claimant's basic and compensatory awards for the employee's contributory conduct in failing to seek treatment for alcoholism, and should also have taken into account the employee's drunkenness at work in assessing the contribution

Labels: employment tribunal alcoholism

Inheritance Tax ("IHT")

As you know, IHT does not "bite" on assets left to a spouse nor the first #300,000 - the nil rate band ("NRB") - of a deceased persons estate, but is then levied at 40%

Many wills ("Old Wills") therefore left the NRB down a generation - to use up the NRB and not "waste" it - saving #300,000 x 40% = #120,000 IHT

Often a discretionary trust ("DT") was involved and sometimes, where the wealth was tied up in a house, an IOU

The Chancellor has now announced that if a married person dies, without using up all the NRB and leaving everything to the surviving spouse, the unused NRB is transferred to the latter ("the Relaxation")

This means that if the Deceased gave away nothing in the 7 years before death (other than minor gifts and gifts out of income) the surviving spouse has a NRB of #600,000

Should you now change your Old Will? Think before you act!

The Relaxation may not become law. It needs to be incorporated in a Finance Act first. If an election is called and another party gets in, they may have different ideas altogether

Even if this is not the case, consider why you gifted the NRB or created the DT in the first place. Was it just to save IHT or was it to get money down to children at this time. If the latter, has anything changed?

Were / Are you worried that your surviving spouse might be left short of money for nursing home and medical fees or general living expenses?

If there was a DT, could the trustees benefit your surviving spouse under it? If so, is there any rush to change anything?

If you change your Will now, the change does not come about and you die, you have just given #120,000 to the taxman

Labels: inheritance tax death