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A suspended committal order was made on a judgment summons application and the judgment debtor has now defaulted under the terms of the order. Other than the judgment creditor filing a statement of default (per Family Procedure Rules 2010, SI 2010/2955, 33.16(4)(b)) what other steps must be taken to apply for the committal of the judgment debtor?
Q&As
Where an order has been made in family proceedings for the payment of money and it has not been satisfied, it is open to the judgment creditor in such circumstances to apply for a judgment summons. The procedure is governed by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 33 and, where the court is satisfied that the debtor has made a default on payment of a debt and has, or has had since the date of the order, the means to pay the defaulted sum and has refused or neglected to pay that sum, it may commit the debtor to prison. Under FPR 2010, SI 2010/2955, 33.16(2), if the court makes an order of committal,
A tale of too many applications (Desporte v Bull)
NEWS
TMT analysis: The substantive claim in Bull v Desporte garnered attention due to the background facts as well as the claim relating to misuse of private information. The present judgment relates to subsequent applications made by Mr Bull as a result of meritless counterclaims brought by the defendant, Ms Desporte. The court granted Mr Bull’s applications and therefore struck out Ms Desporte’s libel claim and made an extended civil restraint order (ECRO). Written by John Benjamin, partner, and Edward Pickard and Oliver Kent, associates, of Duane Morris.
A taller building has been built beside a shorter building. The surface water runoff from the higher building is causing flooding or maintenance problems for the shorter building. Are there are requirements that should have been taken into account when the taller building was built?
Q&As
Subject to exemptions, building work is required to be carried out in compliance with the applicable requirements in the Building Regulations 2010, SI 2010/2214, reg 4. In addition, there is a further requirement to apply for approval under the building control regulations (Building Regulations 2010, SI 2010/2214, reg 12). Building Regulations 2010, SI 2010/2214, Sch 1 sets out the requirements for various parts of the building work and government guidance is provided on those requirements by Approved Documents. Building Regulations 2010, SI 2010/2214, Sch 1 requires, along with other requirements, adequate drainage of rainwater. Approved Document H contains guidance on constructing
A tangled web unwoven (Shankland v McKeand)
NEWS
Restructuring & Insolvency analysis: The respondent, an independent financial adviser, had created a portfolio of companies to support his various business interests. One of these companies was Lion House Portfolio Ltd (Lion House) which entered liquidation. The liquidators brought and succeeded in their claims in misfeasance in relation to various payments and transfers made to the respondent and his portfolio companies. The claim in relation to shares alleged to be owned by Lion House failed because the court concluded the shares had, in fact, been beneficially owned by the respondent. Written by Damian Murphy, barrister at Enterprise Chambers.
A taxable estate consists of failed potentially exempt transfers (PETs) and a gift with a reservation of benefit. There is no direction in the Will stating that the estate bears the burden of the tax and so this burden will fall to the donees subject to taper relief. Is it necessary for the executors to submit IHT100 to disclose these failed PETs and the gifts with reservation of benefit or is that the responsibility of the donees of the failed PETs and the person to whom the gift with reservation was made?
Q&As
Failed PETs In the case of a potentially exempt transfer (PET) which becomes chargeable on the transferor’s death, the accounting party is any person the value of whose estate was increased by the transfer and, where the death of the transferor is after 8 March 1999, the transferor’s personal representatives (PRs). The account should be delivered before the end of 12 months from the end of the month in which the transferor died or, where it is delivered by their PRs, before the expiry of three months from
A teenage child has been placed with another family member under an interim care order and attends a fee-paying school funded by the maternal grandparents. Can the local authority (LA) seek an order to change the schooling arrangements under the interim care order where one of the parents objects, or does the LAs parental responsibility pursuant to the interim order override the natural parent’s parental responsibility?
Q&As
Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property. A decision on a child’s schooling is one which necessarily involves the exercise of parental responsibility. See Practice Note: The meaning and scope of parental responsibility. A care order on an interim basis (ie an interim care order) may be made by the court in any proceedings on an application for a care order or supervision order when the proceedings have yet to be concluded,
A telecommunications operator’s lease of a rooftop site was terminated on forfeiture of a headlease. The freeholder then served a paragraph 21 notice under the Electronic Communications Code, and the operator served a counter notice. The freeholder has issued possession proceedings which have been listed for hearing. The operator intends to serve a paragraph 5 notice before the hearing and seek further directions in that regard. Should the proceedings be treated as a possession claim under CPR Part 55 and accordingly does the operator need to file a defence within 14 days?
Q&As
It is assumed that there is a headlease which has been forfeited, and that any sub-leases under this lease have also come to an end. The Electronics Communications Code (the Code) referred to is the Electronic Communications Code produced by the Law Commission in 2013. As the Q&A notes, the operator’s lease was terminated by forfeiture and thereafter it is assumed that the freeholder requires removal of equipment which required a paragraph 21 notice to be served. Paragraph 21 of the Code states that if there is no agreement
A telecoms provider is holding over under a protected tenancy. The rent in the expired lease was expressed to be reviewable annually with RPI. Can RPI rent reviews be carried out in the holding over period or does the rent remain at the rate it was in the year the lease expired?
Q&As
In answering this Q&A, we assume that: • the agreement may include rights under the Electronic Communications Code (under Schedule 2 to the Telecommunications Act 1984 (TA 1984), as amended by the Communications Act 2003) (Code). However, the current Code does not make provision for rent reviews (under paragraph 7 it makes provision for consideration for the grant of rights in certain specified circumstances including where an agreement is granted by court order, but without making detailed provision as to the mechanics of payment of that consideration) and accordingly is unlikely to be relevant for the purposes of determining whether or not rent reviews continue outside the contractual
A tenancy agreement states that A is the landlord, however, both A and B state that B is the true landlord and A merely manages the property. The rent is received by B. The office copies also state that B owns the property. Whose name should be stated on a claim form and will it be an issue that B is the landlord but A is named on the tenancy agreement as the landlord?
Q&As
This Q&A appears to involve an undisclosed principal; that is, a principal who is not known by the third party to be connected with a particular transaction made between the third party and the principal’s agent. As between that principal and the agent: • they should have agreed to the existence of an agency relationship, and • in entering into the contract with the third party, the agent must have intended to do so on the principal’s behalf For the purpose of this Q&A it is assumed that: • the tenant did not know of B’s connection with the tenancy (although the payment
A tenancy deposit (received in 2015) was protected pursuant to section 213 of the Housing Act 2004 (HA 2004). After the fixed term of 12 months, the tenancy became periodic and continued but the deposit scheme automatically unprotected the deposit and communicated it to the tenant. Three years later and having vacated the property, the tenant brought a claim pursuant to HA 2004, s 214. Can the landlord rely on HA 2004, s 215B(f) in these circumstances?
Q&As
By section 213 of the Housing Act 2004 (HA 2004) (as amended) any person receiving a tenancy deposit must deal with it in accordance with an authorised scheme and the initial requirements of the scheme must be complied with within 30 days of receipt and the prescribed information be provided to the tenant within the same period. A failure to do so entitles the tenant to bring a claim under HA 2004, s 214 which among other things gives the court the power to order the repayment of the deposit and requires the court to order payment of compensation of between one and
A tenancy was solely in Party A’s name and has recently, via property adjustment order, been transferred solely into Party B’s name. Under the right to buy scheme, would Party B need to wait three years from the date of the property adjustment order, or three years from the date of the original tenancy agreement? Would the position change if the first year of the original tenancy was an introductory tenancy?
Q&As
The right to buy scheme enables most council tenants to buy their council home at a discount, provided they are a secure tenant, it is their only or main home, and the property is self-contained. The other key requirement is that the prospective purchaser must have been a public sector tenant for three years. The amount of discount the tenant receives will depend on how long they have been a tenant, the type of property that is being purchased, and the value of the property . If, in the scenario of this query, Party A’s tenancy was transferred from his or her sole name into joint
A tenant (A) proposes to take an assignment of a lease from the existing tenant (T). The lease entitles the landlord (L) to require a director’s guarantee from the assignee, where reasonable. L and A have agreed that A will provide a rent deposit instead of a guarantee, although the lease does not provide that L may require a deposit. L refuses to include a covenant in the rent deposit deed to procure a covenant from any new reversioner (R) to comply with L's covenants in the deed concerning the deposit and to transfer the deposit to R. Does A have any grounds to require that such a covenant is included?
Q&As
In answering this Q&A, we have assumed that the lease is a new tenancy (ie one granted on or after 1 January 1996), as referred to the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995)—8 Procedure for seeking release from a covenant under section 6 or 7. The rent deposit deed Whether or not the rent deposit must be returned or not on the assignment of the reversion depends