Kent Solicitors

The Access to Neighbouring Land Act 1992 allows a landowner to gain access to his neighbour's land (without the neighbour's permission) to do works that are 'reasonably necessary for the preservation' of the land, provided they cannot be carried out (or would be substantially more difficult to carry out) without entering the neighbour's land.

'Basic preservation works' are automatically considered to be 'reasonably necessary for the preservation' of the land, but the list of these is limited and does not include new building works which could be a problem if you want to build an extension. In such circumstances, you may wish to try to use the Party Wall Act 1996 instead.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: access

Consider (even before you take him/her on) whether he/she is going to be a mere employee (owing a duty of fidelity) or a director or senior employee (owing a fiduciary duty, a more onerous duty on him/her).

Draft / impose / seek to agree non-compete, non-solicitation, and non-dealing clauses in his contract of employment as well as clear intellectual property right provisions in the contract.

List out what you regard as 'confidential information'; include provisions about it and make sure that the overall policy in relation to such information is coherent and enforced generally.

Police the use of confidential information and computers.

Conduct exit interview, whilst he/she is an employee. If he/she lies to you, this can assist in later proceedings.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: rival busness employee

Write it down, have a system for updating it, ensure that the policy is fair and not discriminatory, enforce it consistently.

We can help with the first three, but you have to do the last.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: dress code

Many arguments occur over estate agents commission - especially where the seller has changed agents

A recent case suggests that, in the absence of clear terms and conditions to the contrary, drawn to the sellers attention and specifically agreed, the only agent entitled to commission is the one who was the effective cause of the sale

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: estate agents commission

A commercial agent is someone who organizes sales on behalf of his principal.

It is not someone who buys and sells on his own account.

This is important because a commercial agent is entitled to compensation at the end of the relationship whereas an independent contractor is not.


Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: commercial agents

There is a new penalty system for incorrect returns for VAT, PAYE, national insurance, capital gains tax, income tax, corporation tax and the construction industry scheme.

It was introduced to try to make the system consistent across the various taxes.

If people take reasonable care when completing their returns, they should not be penalized but penalties will be high, if the error is deliberate

A penalty can only be charged if the taxpayer carelessly or deliberately supplies a document containing an inaccuracy that leads to an understatement of the persons liability to tax, an inflated statement of a loss, or a false or inflated claim to repayment of tax

A penalty may also be charged where the tax payer ahs filed no returns and HMRC issue an assessment which is insufficient

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: CGT, Construction Industry, NI, PAYE, penalties, Tax, VAT

A company must have an individual shareholders agreement to circulate reports and accounts and notices via a website or email

If not, then the company may wish to arrange to have the power to do this as permitted under the Companies Act 2006

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: communications, Electronic, shareholders

If a trader takes goods from their business for their personal use then they must pay tax as if the item had been sold in the normal course of the business

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Traders goods tax

Restrictive covenants in a contract of employment will not be enforceable if they are not limited to preventing the former employee from having contact with customers of the former employer with whom he personally had had dealings.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Employment

An employee pursuing an equal pay claim cannot use a successor as a comparator. The comparison must be made with an existing employee

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Equal Pay Claim

The duty to avoid conflicts of interest is wide. A director will be under a duty to avoid any situation in which he or she has, or could have, a direct or indirect interest that conflicts, or 'may possibly' conflict, with the interests of the company

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Traditionally, members' written resolutions had to receive unanimous approval

Now they can be passed by the percentage of members appropriate to the resolution

This means that you can pass resolutions by collecting the signatures of 75% shareholders for special resolutions and 50%+ for ordinary resolutions

Signatures / voting can be collected by email or via the company's website

We can review your Articles and procedures with a view to modernizing them

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: New Companies Act percentage written resolutions

Companies may now pass any resolution using a written resolution procedure. This does not apply to a resolution to remove an auditor before the expiration of his office or to a resolution to remove a director

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Companies Act written resolutions

AGMs are no longer required unless provided for in the Articles. Smaller companies may wish to do away with them. We can review your Articles of Association and modernize them

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Companies Act Annual General Meeting

Employers often publish to their employees' policies on various aspects of the employment relationship - dress code, private use of work telephones and computers, private use of company vehicles, policies on sickness, holiday pay, smoking and many other things

Be absolutely clear which are to form part of the contract and which are not - keep them separately

Contractual policies require the employer and employee to agree a variation.

Non contractual policies can be updated by the employer from time to time without the need to get consent from each and every employee

Lump them all altogether in one handbook or electronic folder and you could find that an employee argues that something you thought was within your discretion is in fact a contractual entitlement, where you have no discretion

Example: you set out a policy for enhanced redundancy pay in a policy and put it in a folder with other policies which are clearly contractual. You are going to find it difficult to argue that the enhanced redundancy pay policy is discretionary, rather than contractual

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: employment contract

The Corporate Manslaughter and Corporate Homicide Act 2007 may result in your company / organisation being found guilty of corporate manslaughter if there have been serious management failures leading to a gross breach of duty of care.

You should contact your insurance broker immediately to ensure that cover is in place

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Corporate Manslaughter

AGMs are no longer required unless provided for in the articles. As an alternative to general meetings, s288 allows companies to pass any resolution using the written resolution procedure, with the exception of a resolution to remove a director or a resolution to remove an auditor before the expiration of his office

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Resolutions meetings

Many solicitors and others use enquiry agents. What if the enquiry agent fails to act lawfully? Will you be responsible?

Many turn a blind eye to illegal activities carried out by the enquiry agent in particular, breaches of Data Protection Act 1998.

However, if an enquiry agent commits an offence, the person instructing him is potentially liable for the offence of procuring the breach.

Traditionally, the authorities have focused on those who have committed the offence, rather than those who have procured it. But, the Information Commissioner has said: It has since been made clear that the prosecution ground rules have been changed and those instructing enquiry agents are far more likely to be prosecuted than in the past.

Accordingly, instruct a reputable enquiry agent and tell him in your instructions that under no circumstances, will illegal activity or breach of regulatory codes or statutory frameworks be condoned.

Remember also that apart from the criminal sanctions, there is the possibility of a damages claim from the person whose data protection rights have been breached.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 http://www.kentsolicitor.co.uk/

Labels: Enquiry agent: employer liable

A claimant can now recover damages for internal staff costs incurred in investigating and mitigating its situation, but without having to show that it has incurred any loss of profit or additional expenditure.

All that is required is to demonstrate some significant disruption to the business

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Damages lost staff time

Defendants must consider issues of service before filing an acknowledgement of service.

If they do not then they will not be able to raise any argument as to service, including challenging an extension of time given to the claimant.

Michael Breeze, Kaslers Solicitors LLP 07 900 195 195 www.kentsolicitor.co.uk

Labels: Claim form challenging extension