It seems that there are some estate agents that are looking to trick potential buyers into completing actions in an order that Kirstie has described as ‘NOT legal’.
The practice in question is the evidence of many estate agents forcing potential buyers into meeting with a mortgage advisor and going through a mortgage application prior to being able to view a property.
This may be viewed as an estate agent ensuring that someone is committed to purchasing a property but many also see it as a way for estate agents to trap you into using their in-house mortgage adviser.
Both Kirstie and our team want to make you very aware that it is not a legal nor necessary action, whilst it may seem acceptable due to the number of estate agents found to be doing this, please be sure to contact us if you experience any request that you deem to be suspicious.
Something that may be at the forefront of your mind, given the current times we are in, is what would happen to your business if you were currently unable to work. We have put together the below article to guide you through some of the steps you can take depending on your circumstances.
Whilst no one wants to think about falling ill, it is of paramount importance to have a plan in place during this pandemic. On-the-other-hand, the below information can also be helpful when it comes to you taking a long holiday or sabbatical.
You may need to appoint someone else to make decisions on your behalf. The person you choose should have good knowledge of your business and someone you trust, they must also be readily available to make decisions on your behalf quickly. You can put a limit on how much authority they have. We also advise you informing all key contacts inside and outside of your business know of the person you have chosen to delegate to.
Our team can help you do this formally through a Property and Finance Lasting Power of Attorney, this is especially important if they will need to contact people outside of your business.
Absence within partnerships may cause less of a problem, due to the fact that there will be other partners to keep things going.
However, a proper partnership agreement is something that we advise to have in place. It will set out the actions or decisions that need full partner or minority partner agreement.
This is important to put in place as when circumstances change and decisions need to be made quickly, without all partners there, many partners may begin to reconsider their governance and decision making process.
However, many partnerships allow for partners to notify decisions by proxy, which alleviates many of the problems. Yet it is important to remember that sometimes partners may not be able to vote by proxy, especially where absence due to illness is present.
Shareholders & Directors
Shareholders and directors may want to think about how to delegate actions and decisions temporarily. In many ways their position is similar to that of a partner, except that their duties and powers are set out in the memorandum and articles of associations of a company. Their powers may also include the right to appoint an alternate director to act on behalf of an absent director or to appoint a proxy to vote in shareholder meetings. Limited companies as a legal entity in their own right often have the power to appoint an attorney to execute legal documents on their behalf.
An LPA can be used to facilitate actions and decisions needed in temporary absences. Certain responsibilities and duties held as a director cannot be delegated as they are personal to the individual.
Individual businesses will have their own structures and needs, our team are still working from home and are able to help you with any of the above issues and the best route for you to take. Individual businesses will have their own structures and needs, our team are still working from home and are able to help you with any of the above issues and the best route for you to take. Please click here to get in contact with us.
How to provide for someone to look after your affairs if you become unwell
As the COVID-19 pandemic has highlighted, no-one knows what the future may hold.
Whilst it is always a good idea to let your family or close friends know your wishes, this is not legally binding. By making a Lasting Power of Attorney (often referred to as an LPA) you can make sure you know who will be making decisions for you and looking after your affairs if you are unable to do this for yourself, whether due to mental health or physical incapacity.
What is a Lasting Power of Attorney?
A Power of Attorney is a legal document by which a person (or persons) is appointed to make decisions on behalf or another. The powers given under an ordinary Power of Attorney can only be exercised whilst the person giving the power (the Donor) has mental capacity.
In contrast, a Lasting Power of Attorney continues to have effect should the Donor lose mental capacity. It is a vital safeguard against the problems which can arise from the loss of mental capacity, however caused.
Who can make a Lasting Power of Attorney and who should be appointed?
Provided you are aged 18 or over, solvent and have mental capacity, you can make a Lasting Power of Attorney. You appoint an Attorney or Attorneys who you trust, are willing to act as such and have the appropriate skills to make decisions on your behalf. These can be family, friends, colleagues or professionals, e.g. a solicitor or accountant. You can provide for two or more Attorneys to act together, separately or a combination and you can include instructions or guidance. You may wish to appoint a replacement Attorney in case your original Attorney is unable to act. The powers given under a Lasting Power of Attorney remain in effect until it is revoked by the Donor revokes or upon the Donor’s death.
Does giving a Lasting Power of Attorney affect your ability to make decisions?
No. The appointment of an attorney does not take away your ability to make decisions for yourself and you should continue to deal with your own affairs as normal, unless you specifically ask your Attorney to take over, or your mental capacity diminishes. The Attorney is under a duty to take over should you lose mental capacity.
The powers given under a Lasting Power of Attorney can only be exercised once the document has been registered with the Office of the Public Guardian, in accordance with its requirements. Registration can take several weeks, and it is advisable to apply for registration as soon as possible to prevent delays at a time when the powers may have to be exercised.
What sort of things do Lasting Powers of Attorney cover?
There are two types of Lasting Powers of Attorney: Property and Financial Affairs and Health and Welfare. You can appoint different Attorneys for each, and they provide for your Attorney to deal with, for example:
Property and Financial Affairs:
- Selling and buying property
- Paying the mortgage
- Arranging property repairs
- Paying bills
- Investing money
- Dealing with the bank
- Dealing with HMRC
Health and Welfare:
- Where you should live
- Your medical care
- Who you should have contact with
- What you should eat
- What kind of social activities you should take part in
Who has to sign the document?
You will have to sign the Lasting Power of Attorney and so will your Attorney/s and any replacement Attorney. It also has to be signed by an independent person to confirm that you have the mental capacity to give the powers and to sign the document. Each signature has to be witnessed by an independent person, but it is not necessary for the same person to witness all the signatures.
During the COVID-19 social distancing restrictions, it may be difficult to find someone who is prepared to act as a witness, but there are ways that this can be correctly done whilst still maintaining social distancing. For example, by watching through a window or over the garden fence. We can explain what the requirements are and how to deal with them and welcome any questions you may have.
What happens when there is no Lasting Power of Attorney?
In the event of loss of mental capacity, the Office of the Public Guardian will appoint someone to look after your financial and property affairs (a Deputy), but there is no guarantee that this will be the same person as you would have chosen for yourself and it will not automatically be your spouse or civil partner.
A Donor has to operate under strict guidelines and report to the Office of the Public Guardian. They may not be able to implement your specific wishes. The process of appointment and the administration or your affairs is more complex and costly compared with the making, registration and administration of a Lasting Power of Attorney.
How much will it cost to make and register a Lasting Power of Attorney?
Our fixed charges: Per Individual Per Couple
One LPA (either type) £325.00 + VAT £475.00 + VAT
Both types £475.00 + VAT £850.00 + VAT
We are pleased to offer a discount to Blue Light Cardholders
The Office of the Public Guardian charges a registration fee of £82 for each Lasting Power of Attorney. In some circumstances, this may be reduced or exempted.
At Linnitts we can advise you on who would be a suitable Attorney, guide you through the process of appointment and ensure the formalities of appointment and registration are correctly dealt with.
As an Attorney’s power ends when you die, it would be wise to consider making a Will or reviewing your existing Will at the same time as making a Lasting Power of Attorney, to ensure that your estate is dealt with by the person or persons you choose.
Linnitts can advise and help you with this.
WE ARE OPEN FOR BUSINESS
We may not be able to meet you face to face for now, but we are working from home and are here to help you.
We are all now aware that we are living in challenging and uncertain times. Whilst we all worry about the possible consequences of COVID-19 on our health and wellbeing, the economy is also taking a massive hit.
Businesses are under immense pressure, with the effects of the virus on cash flows being felt worldwide and the current restrictions from our Government meaning that many businesses will be forced to suspend operations or completely change their way of working.
If your customers come under financial difficulty you will need to react to this quickly, in an attempt to lessen the blow upon your own cash flow.
Communication truly is key, if you keep in good contact with your customers you will be able to give you warning that they are in financial trouble. This will allow you to restructure any payment arrangement, this will allow you to maintain your own cash flow and your relationship with the customer.
If they have significant debt, or if you feel unsure about your customer’s long-term financial position and the likelihood that they will be able to meet their payment obligations, you could look to obtain some additional security.
Personal guarantee and indemnity agreements
There is always the option to enter into a personal guarantee and indemnity agreement with a director of the debtor or parent company. This agreement would make them liable for the debt if the company cannot meet its payment obligations. This is something we can help you to create as it is crucial that the guarantee is properly drafted and some consideration between the parties to make it effective or the document needs to be signed as a deed. Sometimes the guarantor will need to ensure proper independent legal advice has been sought to ensure that the agreement is binding.
A fixed charge can be secured against a particular asset, most commonly land or property. It is advisable to seek the advice of a solicitor on the mechanics of drafting the charge and registering it against the property at the Land Registry. Mortgage charges already in place may mean that you need to seek lenders consent to the additional charge. A fixed charge will prevent the debtor from disposing of the asset without your consent and will entitle you to claim a proportion of the proceeds of the sale.
Floating charges are taken over a shifting pool of assets. This pool is liable to change throughout the course of business. It does mean that the assets can be disposed of without the consent of the charge holder. The floating charge will become a fixed charge upon default and you can then look to sell the assets. The risk here is that there may be no assets left in the pool. Floating charges are not the preferred choice, but can be suitable if a debtor does not own any high-value assets on which a fixed charge could be applied.
If your business has suffered loss due to the virus, you should begin reviewing your insurance cover. If you have “business interruption insurance” you will need to act quickly. This is something our team are able to help you do.
There are of course more extreme measures, such as debt recovery. However, given the current climate, this is something we are all keen to avoid, we are here to help you should you need any advice during this time just click here.
At Linnitts we endorse the advice from the Government that the health and safety of individuals and the public must be the priority in deciding whether property transactions can proceed during these unprecedented times.
However, there is no need to pull out of your sale or purchase completely
Whilst it is not generally advisable to move into a currently occupied property, the sale and purchase of unoccupied properties can proceed provided the current guidelines from Public Health England and Public Health Wales are observed.
If the sale or purchase of a property is deemed to be critical and it can be done safely and observing the guidelines relating to social distancing, travel and cleaning, then it may be possible to continue.
Where properties are currently occupied and/or there is a chain of transactions there will inevitably be some delay before these can be completed, but legal work can continue in order to get the transaction up to the point of exchange of contracts. When the relevant restrictions have been eased sales and purchases should be able to proceed fairly quickly, and this will help the property market to get up and running again.
Most lenders will extend their existing mortgage offers by three months.
You can still proceed to mortgage your existing property, either with a conventional mortgage or equity release scheme. The restrictions will not affect any proposed transfer of the equity in, or a gift of, your property. Furthermore, mortgage lenders will be reviewing their lending policies on a regular basis. Some have recently increased their loan-to-value criteria which will open up the possibility of a mortgage or remortgage to more people.
Fixed Fee Charges for Residential Conveyancing of £675 + VAT *
Our charges for a sale or purchase of a residential property will be £675 + VAT* and disbursements.
Disbursements are items such as Land Registry fees, Stamp Duty Land Tax and other items, such as the search pack.
*Terms and Conditions apply.
WE ARE OPEN FOR BUSINESS
We may not be able to meet you face to face for now, but we are working from home and are here to help you.
COVID-19 is seeing many of us trying to terminate all sorts of contracts and agreements. These terminations will be actioned by using Force Majeure clauses or the doctrine of Frustration. For information on this clause, please click here to get in touch with a member of our team.
If there is a force majeure clause that covers coronavirus then frustration will not apply.
However, if this is not the case then parties to the contract may be able to bring the contract to an end by relying on Frustration to avoid liability breach of contract.
How do you know if a contract is frustrated?
- The frustrating event occurred after the contract had been formed.
- The frustrating event was not the fault of either party to the contract.
- The frustrating event was beyond the contemplation of the parties at the time the contract was entered into.
- The frustrating event made the performance of future obligations under the contract impossible, illegal or radically different.
Whether a contract will be frustrated by a supervening event occurring as a result of coronavirus will depend on the individual facts of each case. The bar is high for frustration, yet it is very likely during these times that this bar will be reached.
What happens if a contract is frustrated?
The contract will automatically be discharged at the time of frustration. This means that the parties to the contract do not need to perform any future contractual obligations. Damages cannot be claimed for any future non-performing obligations. Any money paid pursuant to the contract before the frustrating event occurred is repayable.
Can expenses incurred before the frustrating event be recovered?
If a party has incurred expenses before the frustrating event occurred then they can seek to retain or recover these expenses from any money paid or payable at the time of frustration. The court will decide this based on individual circumstances. A party will not be able to retain or recover a sum greater than the amount of money paid or payable at the time of the frustration event.
What happens if one party to the contract has obtained a valuable benefit before frustration?
In circumstances where one party to the contract has already obtained a valuable non-monetary benefit before the contract is discharged, that party may be ordered by the court to pay to the other party a sum that the court considers just.
Yesterday saw the launch of the portal through the government gateway, HMRC have stated that the portal can cope with high levels of traffic and that claims will be paid six days after submission.
The Government have also released further amendments to the scheme and we have summarised the key points below. Specifically looking to clarify how to handle annual leave and how to calculate the 80%.
The CJRS has been extended by a month to the end of June:
This will allow businesses to plan what happens next slightly more rigidly.
Written agreement clarification:
To be eligible for the grant employers must only confirm in writing to their employee that they have been furloughed. This must be done in a way that is consistent with employment law, there must be a written record but the employee does not have to provide a written response. A record of this communication must be kept for five years.
The need to keep records and calculations made in respect of CJRS claims:
New wording has been added into guidance to make it clear that employers will need to retain all records and calculations in respect of their claims, including the amount claimed for each furloughed employee and the period for which each employee is furloughed and claimed for.
Furloughing those who stopped working for you after 28 February:
You can re-employ and furlough staff immediately, however, the furloughed salary must be calculated on the salary on which you re-employed them on.
If a fixed-term contract ended before 19 March 2020, they will not qualify for the scheme.
Employees that are furloughed will continue to accrue annual leave. Employees can take annual leave whilst furloughed (including bank holidays), however, they will need to be paid 100% of normal pay for any period of annual leave. There is still confusion here, as employers will need to pay the 20% during annual leave to make 100% of their wage, however, for many furlough cap means that some aren’t actually on 80% of their usual pay.
New guidance on calculating relevant wages for a CJRS claim:
The latest guidance from the Government outlines how to calculate national insurance and pension contributions, you can access this guidance by clicking here.
Our team of solicitors remain working from home and have been keeping up to date with the latest measures and schemes. If you need any guidance or advice throughout making a claim under the CJRS, please click here to get in contact with us.
Many of our clients when getting a divorce, find themselves needing to enter the court process in order to resolve financial matters. This can cause stress to mount and the current delay of the courts due to the impact of the Coronavirus causing court adjournments isn’t helping with the stress. The court has also just announced that until further notice and if any oral evidence is needed then they will be adjourned.
Alternatives do exist, in the form of mediation but there is another option that we are expecting to increase in popularity during this crisis – the Private FDR.
What is the procedure in a Private FDR?
Involved parties must first agree to pay a barrister, who will often also sit as a judge. Sometimes a retired judge is brought in to read the case and hold a “hearing” to offer their independent view on the likely and correct outcome. Lawyers will be required to present the case to the “judge”, like usual, the judge will then give their view and assist the parties to negotiate a settlement. Parties are not required to give evidence but are needed to be fully present in court. If an agreement can be reached, this is drawn up by the lawyers there and then, offering a quick and efficient solution. If an agreement cannot be reached then at least the issues are much clearer for the parties, which should aid in reducing the length of the final hearing.
Advantages of a Private FDR:
Speed – hearings can be arranged in weeks or even days rather than months or years (given the current court delays).
Reliability – the partied choose the judge jointly, this chosen judge will read all of the parties and unlike in the court system they will not be swapped at the last minute and there will be no lost or unread papers.
Time – A judge will usually be booked for a day, this means that they will be dedicated to assisting the parties with their negotiations instead of having to jump between hearings.
Disadvantages of Private FDR:
The only major disadvantage is the cost, usually in the court system you only pay the lawyers and the judge comes free of charge. However, for Private FDR you will be required to pay your lawyers and the judge; they usually charge between £3000 and £8000 per day. However, it is important to remember the cost of the judge will be split between the partied.
In these strange times we all continue to adapt taking day by day and getting used to a new way of life following the effects of COVID-19 and the ever-evolving Government guidelines. It is more important than ever that we protect some of our most important assets – namely our homes.
Employers can read workers' private messages sent via chat software and webmail accounts during working hours, judges have ruled.
The European Court of Human Rights (ECHR) said a firm that read a worker's Yahoo Messenger chats sent while he was at work was within its rights.
Judges said he had breached the company's rules and that his employer had a right to check on his activities.
Such policies must also protect workers against unfettered snooping, they said.
The judges, sitting in the ECHR in Strasbourg, handed down their decision on Tuesday. Countries that have ratified the European Convention on Human Rights, which include Britain, have agreed to abide by the ECHR rulings that involve them.
The impact on domestic courts differs. Under UK human rights laws, judges must take into account the ECHR's decisions but are not bound by them.