Kent Solicitors

Question:

My back garden backs onto a road which the Council tells me is not classified as a public highway but privately owned land. Between the side of the road (it is a tarmac road) and my back fence is a strip of land about 2 foot wide. This is shown on the deeds as my land. 9 years ago we wanted to move our fence line out to the side of the road, but neighbours complained to the council. The council then told us that even though we owned the land we could not move the fence. They said I could plant trees, but not erect posts.

We now try to maintain this strip of land, but it is constantly being driven over when neighbours park their cars outside their houses narrowing the road to such an extent that to pass, vehicles drive onto our land.

I have put large logs on the land to try to stop this happening but the neighbours constantly move them.

In addition our fence is being damaged by wing mirrors of large vehicles driving on the land. I am getting nowhere with the council and what I want to know is can I errect small posts along the border to stop people driving on my land.

What can I do to resolve these issues?

Answer: The presumption is that the landowner can do what he likes with his land, subject to getting planning permission and not causing danger, harm or injury to other people.

You should ask the council to quote "chapter and verse" as to why you cannot move your fence or erect posts. Ask them whether they can object to you building a rockery there.

Some land owners place large, ‘too heavy to move’, and usually unsightly blocks of stone on their land.

You can apply to the court for a declaration that whatever your proposed plans might be, they are lawful.

Labels: Private land access and maintenance

Question:

I own a flat which I have rented out for ten years. The tenant has moved out and I do not want to pay capital gains tax. If I moved into the flat, how long would I have to live there before I could sell the flat and therefore not pay capital gains tax?

Answer: It is bit more complicated than that - the gain is apportioned depending on the time you have occupied it (you being deemed to have occupied it in the last 3 years of ownership).

Step1: Working out the capital gain or loss for 2008-09

Work out how much you received for your property

This is normally the amount of money you receive when you sell or dispose of the property.

However, in some cases, you might have to use a different figure, for example:

If you give your property away, you use its ‘market value’ (the price the property might reasonably be expected to fetch if it had been sold on the open market).

If you intentionally sell your property for less than it is worth you use the property’s market value.

If you sell your property to a "connected person", such as a close relative or a company you control, you use the propertys market value.

Your husband, wife or civil partner is a connected person. If you are separated for the whole of the year in which you sell or dispose of a property to them, market value applies. However, if you transfer a property to your husband, wife or civil partner and live together at some time in the tax year in which you make the disposal, you usually won't have to pay any Capital Gains Tax on that disposal.

If you exchange your property for something else, you usually use the value (in money terms) of whatever you swapped it for. Sometimes you may have to use the market value of your property instead - for example if the exchange is with a connected person as above.

Work out how much your property cost

The cost of your property is often the amount you paid for the land, building or lease when you bought or acquired it.

However, in some cases, you might use a different figure, for example:

If you received the property as a gift and there has been no claim for Gift Hold-Over Relief, you use its market value at the time you received it.

If you inherited the property, you use its market value on the date of death of the person who left it to you.

If you sold or disposed of part of the land or property, you use a proportion of the cost.

If you sell or dispose of a lease which has less than 50 years to run, you can normally deduct only a part of the cost. The amount depends on the length of the lease left.

If you owned the property on or before 31 March 1982, you use its market value on that day.

If you received the property from your husband, wife or civil partner when you were living together you usually use the amount the property cost them. You may be able to use the Indexation Allowance if they originally bought the property before 1 April 1998 and transferred it to you before 6 April 2008.

You may also be able to use the 31 March 1982 value if they owned the property then. Contact your Tax Office for more information if you think that either of these applies.

If you have to value an asset when working out your capital gains, you can use form CG34 Post Transaction Valuation Check to ask HM Revenue & Customs (HMRC) to check your valuation.

You should complete and send form CG34 to your Tax Office before you complete your Self Assessment tax return. Please allow at least two months for HMRC to provide the valuation.

Work out how much you spent on buying, selling or improving your property

If you have spent extra money on buying, selling or improving your property, you can deduct certain costs. The following costs can be included:

Fees or commission for professional advice or services, for example Capital Gains Tax valuations and estate agent or advertising fees

Stamp Duty Land Tax and VAT (unless you can reclaim the VAT)

Improvement costs to increase the value of the property (you can't include normal maintenance or repair costs)

Step 2: Applying tax reliefs

Once you've worked out your capital gain so far, you may be able to apply tax reliefs to reduce your gain. These include:

Private Residence Relief

This is a tax relief which makes sure you usually don not have to pay Capital Gains Tax when you sell or dispose of your own home. See below regarding apportioning gain.

Business Asset Roll-Over Relief

This may be available if you sell or dispose of business assets and reinvest the amount you received in certain other business assets.

Entrepreneurs Relief. This may be available if you sell or dispose of business assets.

Gift Hold-Over Relief. This may be available if you make a gift of a business asset.

Step 3: Working out how much to pay

Through step 1 and step 2, you have worked out the basic gain on the property and applied reliefs. If you sell or dispose of other assets in 2008-09, you must repeat these basic steps to work out the separate gain or loss for each asset.


When you have worked out each gain or allowable loss, you add them together to work out the total gain (or loss).

You must claim an allowable loss in order to be able to use it.

You can do this on your tax return or by writing to your Tax Office.

If you have made a total net gain you can reduce it if you have unused allowable losses from earlier years.

You only use enough losses from earlier years to reduce your total gain to the same amount as the annual tax-free allowance (known as the Annual Exempt Amount). The Annual Exempt Amount is 9,600 pounds for an individual for 2008-09.

You should deduct the Annual Exempt Amount from any remaining total gain.

You then work out the tax due. The rate of Capital Gains Tax is 18 per cent for 2008-09.

You do not have to pay Capital Gains Tax if your total gain is smaller than the Annual Exempt Amount.

Apportioning the Gain

Calculate number of days owned = X

Calculate number of days occupied (assume occupied for last 3 years) = Y

Calculate chargeable number of days X-Y=Z

Chargeable gain is total gain multiplied by Z / X

Labels: Capital Gains Tax, renting property, tenant

Question:
I have split with my former partner but she refuses to move out of the home we shared. We have been together for 5 years and have a 3 year old child. The house has been fully financed by me, with a mortgage in my sole name with no contribution from my ex-partner.
She contributes a nominal amount towards bills, but I pay all bills. She works full time.
I want her to move out the house and have offered to help her financially to find and furnish a new home for her and my son. I have also offered to pay maintenance but she does not want to accept my offer and wishes to go through the CSA and take the legal route.
Please could you advise on my position with regard to her being forced to move out.

Answer: As the property and mortgage are in your sole name, unless your ex-partner made a substantial financial contribution to the value of the property e.g. by paying for building works or improvements, she will have no entitlement to any share of it.

However, as you have a child together it may be possible for her to secure the use of the home for her and your son. Then when your son completes full time education, the ownership of the home would revert to you. This claim would only succeed in exceptional circumstances. Your only obligation is to support your son financially by paying maintenance to your ex-partner.

Labels: children, family home, separation, shared residence

Question:

In December 2008 I ordered a machine with a separate attachment from a company for business use. The machine was delivered on 22nd December without the attachment. This was promised for the end of January. The attachment wasn't delivered and after three attempts to contact the company I received, by email, notification that they were in the process of redesigning the attachment for increased performance. They stated that they had anticipated it being ready but had encountered problems and therefore the part was not ready.

The attachment adds significantly to the functionality of the machine and not available from other manufacturers as they would be incompatible.

Without the attachment the machine does not match my requirements specified when I placed the order. The Sale of Goods Act states that goods should be fit for purpose. Can I claim a full refund and return the machine to at their cost? If the company refuse a refund what would be my next step? The machine cost 5000 pounds.

Answer:

You must review the terms of the contract to see what it said about delivery times and delay. If there are no explicit provisions, write giving a reasonable period for delivery but now making “time of the essence” of the contract so far as delivery is concerned. Reject the goods if delivery is not made in that period and then sue for the return of your money.

If you are experiencing problems with supply of goods please ring Michael Breeze to discuss further 07 900 195 195

Labels: supply of goods

Question:

My parents own their home and are concerned that should they need to go into a care home the home which they have paid for will be used to fund their care in old age and not passed down to their children.

Is there any way my parents can avoid this?

The house has been left to their children in their wills but can they gift it now or can we buy it off them to avoid the house being sold to pay for care?

Answer:
There is no easy route to depriving oneself of capital and throwing oneself on the tender mercies of the local authority

The governments view appears to be that people should save to support themselves in their old age and that the tax/ratepayer should not fund their care fees so that they can pass on wealth to their children.

If an elderly person asks a local authority to fund care fees, they check into his / her past finances to see if he / she has intentionally deprived herself of assets and if so, seek to claw it back by way of contribution / payment of nursing home fees

For further details please refer to The Charging for residential accommodation guide (CRAG) in support of The National Assistance (Assessment of Resources) Regulations 1992 (S.I. 1992/2977): Update April 2005 -
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4107292 and in particular para 6.057 onwards.

Labels: Charging for Residential accommodation, Inheritance

Before starting a business you need to sit down with the people who are going to be involved and agree, in writing, money and time investments, rewards, exit routes and strategies.

If you do not, if the business owners have a disagreement the legal work has to concentrate on analyzing conversations to establish what the agreements were - a labour intense exercise and one where the conclusions may well be disputed by the parties involved.

If a disagreement occurs there are usually the following options if the other business partners want to get rid of a partner.

Option A
Spend money on lawyers and accountants to argue your dismissal / the deal and the value of your shares, with the hope that they can agree to get increase in offer more than costs spent or alternatively risk the venture going bust and getting nothing.

Option B
Spend your time arguing your dismissal / the deal and the value of your shares with the hope that they can agree to get increase in offer more than costs spent or alternatively risk the venture going bust and getting nothing.

Option C
Sit tight and do nothing. Hope that one day someone will offer a lot of money for the shares or risk the venture going bust and getting nothing.

Option D
Grab the money on offer. Put the whole thing down to experience. Resolve to deal with businesses matters properly next time


If you want help setting up your business contact Michael Breeze on his Mobile:
07 900 195 195 email: mdb@kaslers.co.uk

The individual IHT allowance is increased to £325,000.

Labels: Inheritance Tax

Question:
I have just helped my common law partner pay off the mortgage on our home and would like to get my name put on the title deeds. What do we need to do? Is there any stamp duty payable?

Answer:
It would have been safer to have consulted a solicitor at the time you paid off the mortgage in case anything happens to either or you. However, a Transfer document can still be prepared and signed and new ownership registered at HMLR.

Yes, Stamp Duty may be payable, but this depends on the amount paid.

You also need to consider, as you are not married, whether you wish to hold the property as joint tenants or, if not, in what shares you hold the property as tenants in common.

For further details please contact Simon Scott on 07979 916 619 or email ss@kaslers.co.uk

Labels: property mortgages stamp duty

Question:

In December 2008 I ordered a machine with a separate attachment from a company for business use. The machine was delivered on 22nd December without the attachment. This was promised for the end of January. The attachment wasn't delivered and after three attempts to contact the company I received, by email, notification that they were in the process of redesigning the attachment for increased performance. They stated that they had anticipated it being ready but had encountered problems and therefore the part was not ready.

The attachment adds significantly to the functionality of the machine and not available from other manufacturers as they would be incompatible.

Without the attachment the machine does not match my requirements specified when I placed the order. The Sale of Goods Act states that goods should be fit for purpose. Can I claim a full refund and return the machine to at their cost? If the company refuse a refund what would be my next step? The machine cost £5000.

Answer:

You must review the terms of the contract to see what it said about delivery times and delay. If there are no explicit provisions, write giving a reasonable period for delivery but now making “time of the essence” of the contract so far as delivery is concerned. Reject the goods if delivery is not made in that period and then sue for the return of your money.

If you are experiencing problems with supply of goods please ring Michael Breeze to discuss further 07 900 195 195

Labels: supply of goods

Since the downturn in property prices and investments, updating and reviewing your Will is a worthwhile exercise as the value of items left to loved ones may no longer have the same value as when your Will was made.

In addition, if your Will includes any tax planning provision, the provisions made may no longer be appropriate. It is now time to review the value of your assets and ensure that your Will accurately reflects their true worth.

For expert advice please call Vanessa Adamson direct on 01622 844607 or contact her by email: va@kaslers.co.uk

Labels: Inheritance Wills Asset Value

Journalists wanting to report on and attend Family Court Proceedings will have to be accredited through the British Press Card Scheme

Labels: family court proceedings media reporting

Courts will have power to restrict the attendance of media, if it believes a childs welfare requires it.

Labels: family court proceedings media reporting

We are pleased to be able to offer a Debt Recovery Service for clients at the rates shown below. The initial cost per letter (Letter before Action LBA) will be calculated on the basis of the number of debts sent to us at any one time.

For example:

1-5 debts - 25 pounds each LBA
6-20 debts - 20 pounds each LBA
21-50 debts - 15 pounds per LBA
51-100 debts - 10 pounds per LBA

If further work is required to recover a debt, it will be agreed prior to any action being taken by us and will be dealt with in accordance with our Terms of Business.

The process is as follows:

The client sends details of the debts on an excel spreadsheet with details of the debtors, that is, their name and address and the amount of the debt. At this point, money on account will be payable, for example a batch of 30 debts would equate to a fee payable of 450 pounds plus VAT. Payment can be made to us by cash, cheque or credit card.

An LBA (the wording of which will be agreed with the client beforehand) will then be sent to each debtor. A three week deadline will be set, at which point we will update you, by telephone, of the responses we have received and then agree any further action.

The responses are likely to fall into one of four categories:

Payment in full
Proposals to pay by installments
Dispute as to the sum due
LBA ignored/returned

Once we have discussed the responses received, we can agree what (if any) further action is to be taken. We can negotiate for payment or issue proceedings on your behalf, both of which will be charged at an hourly rate.

For further details please call Felicity Keeler on her direct line 01622 891711 or call the office number (local rate) 0845 270 2511

Labels: debt recovery fixed fees

Subject to Parliamentary approval, the media will be allowed to report on family court proceedings from April 27th 2009

Labels: family court proceedings media reporting