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A client has paid the liabilities of an estate themselves to prevent the deceased's property being sold. The property will be transferred into the names of client and three others as executors. The client is to secure their interest in the debt by way of a restriction/charge against the property. Can the client charge interest on the lump sum until the date of payment?
Q&As
Personal representatives have the same statutory powers given to trustees in the Trustee Act 2000 (TrA 2000), by virtue of TrA 2000, s 35. Trustees and personal representatives do not generally have the power to borrow. However, where there is a trust of land, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) gives the trustees additional powers. TOLATA 1996, s 6(1) gives trustees of land all the powers of an absolute owner in relation to the land. Trustees of land therefore have a power to mortgage land to secure liabilities incurred by them. TOLATA 1996, s 18 extends the scope of TOLATA 1996, s 6 (and other specified provisions of TOLATA 1996)
A client has received a gift of funds from his aunt. His brother has received the same amount. The brothers have agreed between themselves to use the funds for her care if she requires it and they have drawn up a Deed to document this. Will the terms of the Deed override their Wills (their Wills leave their respective estates to their wives)?
Q&As
Generally speaking, the terms of a validly executed Will that complies with the formality requirements in section 9 of the Wills Act 1837 will be binding in respect of the estate of the deceased, save where the beneficiaries agree to vary its terms by way of a deed of variation, or if the court makes an order for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. A Will can only leave property that belongs to the testator and so, for example, monies held in trust for a third-party beneficiary cannot
A client has recently broken up with their partner who has been residing at their property rent-free for approximately 20 years. The client would now like their former partner to leave. The former partner made no contributions towards bills or the maintenance of the property. The former partner has no rights, can be told that permission to reside has been revoked and that they must leave within a specified timeframe. What steps should then be taken to recover possession if it is not possible to change the locks or for the client to remove the former partner?
Q&As
It is commonly the case that on the breakdown of a relationship, an issue arises in respect of occupancy of what was previously the family home. Where parties are married, matrimonial home rights can be asserted, and regardless of whose name the property is in, the court can apportion interests in financial remedy proceedings. Cohabiting couples have far fewer protections, and where the property is in the sole name of one party and the other party has made no contributions
A client has recently purchased a residential lease. The landlord is refusing to provide a receipted notice on the basis that the previous owner did not serve a notice of assignment on their purchase and therefore there is no chain of assignment. Is there a solution to this issue? How will this affect service or validity of a section 42 notice?
Q&As
This Q&A assumes that the seller was registered with HM Land Registry as proprietor of the leasehold title, and the buyer has been (or will be) registered as transferee A tenant's ability to assign a lease is frequently limited by covenants. The effect of any given covenant is a matter of interpretation of the lease, along with the statutes that apply to them (including, for example, the Landlord and Tenant Act 1927 in relation to assignment). See Practice Note: Landlord's consent to assign or underlet. In this scenario, the lease is residential. Long residential leases often do not require the tenant to seek the landlord's consent before assigning,
A client has rental properties valued at less than £325,000 that they wish to remove from their estate, but they need to retain the income. Is it possible to rely upon section 102B(3) of the Finance Act 1986 to avoid the gift with reservation of benefit rules in a way that they gift 90% of the rental properties to heir children retaining 10% within their estate, but retaining 100% of the rental income? In addition, the client wishes to make the gift conditional and therefore settle the 90% onto trusts, possibly with a life interest trust for their benefit or discretionary trust where they retain the right to income. Is this possible?
Q&As
We have assumed that: • the client is the sole beneficial owner of the rental properties in question • the client does not occupy any of the properties A post-8 March 1999 gift of an undivided share of land is a gift of property subject to a reservation, except in the following circumstances: • the donor does not occupy the land; or • the donor occupies
A client initially receives customer enquiries via their website or by telephone/e-mail. Some customers attend the client's showroom to see equipment samples. The client then visits the customer's home to help scope out the required work. An estimate is then provided to the customer via e-mail. A contract is then entered into, usually via telephone/e-mail, but sometimes in the customer's home. Would these arrangements give rise to off-premises contracts, distance contracts and/or on-premises contracts?
Q&As
For the purposes of this Q&A we have limited our research to cover the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 (CCR 2013). See Practice Note: Distance, doorstep and on-premises sales which summarises the law, guidance and practice relating to the CCR 2013 and explains when they apply, what information must be provided to the consumer and when, and what the consumer’s rights to cancel are once a distance selling contract has been concluded. The CCR 2013 apply to contracts for goods, services and digital content that are made by means of distance communication, doorstep contracts and on-premises contracts. For further information,
A client is adversely possessing part of a field. The rest of the field is registered in their name. The part of the field they are adversely possessing is registered with possessory title in the name of a third party (and has been since 2001). The client’s predecessors have been adversely possessing this land since 2010 without interference. Is it correct that the client’s adverse possession prevents the registered owner from obtaining title absolute? Additionally, does someone with possessory title have the right to evict others?
Q&As
Adverse possession Since 13 October 2003 an entirely new set of rules on adverse possession has applied registered land. Under the Land Registration Act 2002 (LRA 2002), a squatter may apply to be registered as proprietor after ten years’ adverse possession. The essential elements of the new regime are as follows: • a squatter can apply to be registered as the proprietor of a registered estate if they have been in adverse possession for a minimum period of ten years ending on the date of the application (see ‘Application for registration’ in Practice Note: Claiming title
A client is buying an industrial unit which is unheated. The building was entirely re-roofed in 2016, but no building regulations consent was obtained by the seller. Given the lack of heating in the building, would the work require consent under the building regulations?
Q&As
The Government’s Planning Portal explains that building regulations consent is required for all structural works, although there is an exemption if the works are simply repairs to a roof involving less than 25% of the area of a pitched or flat roof. If the new roof is structurally different from the previous one, then building regulations consent is required, as it may affect the structural integrity of the rest of the building or change the way that the building responds in the event of a fire. Practice Note: Energy efficiency—Part L of the Building Regulations discusses the new regulations regarding energy efficiency. Put simply, most building works are subject to building regulations
A client is buying registered freehold land where there are covenants contained in a previous Transfer noted on the title to the effect that no transfer is to be entered into without abiding by provisions of a schedule that relate to making overage payments and entering into a direct covenant with the original landowner. This is protected by a restriction on the title. My client does not want their land to be bound by the covenants but the seller's solicitor has agreed to obtain the removal of a the restriction but not a release from the covenants in so far as they affect the land. Will this be sufficient for my client's land not to be burdened by the overage payments or do I need a release of the covenants as well as the removal of the restriction?
Q&As
Overage is essentially a contractual obligation or positive covenant to make a further payment and therefore issues arise concerning: • binding the buyer's successors in title • protecting the seller in the event that the buyer fails to comply with its obligations See
A client is going to take an assignment of a lease and then surrender the lease to the landlord in exchange for a grant of a new lease. Will overlap relief be available on a surrender and re-grant of the lease?
Q&As
Assignment of a lease The assignment of a lease is generally treated in the same way as the transfer of a freehold interest and any payment or premium on the assignment (other than a reverse premium) will be subject to stamp duty land tax (SDLT). The assumption by the assignee of obligation under the lease to pay rent or to perform or observe any undertaking of the tenant under the lease does not count as chargeable consideration. Where
A client is in voluntary liquidation and has the benefit of an overage over some land. The liquidation should be finalised shortly. Can the benefit of the overage be assigned to a third party before its finalised?
Q&As
In answering this Q&A, we have considered the power of a liquidator to deal with the company’s assets after the commencement of liquidation. Section 107 of the Insolvency Act 1986 (IA 1986), which applies to both members’ and creditors’ voluntary liquidation, provides that the company’s property shall, on winding up, be applied in satisfaction of the company’s liabilities and, subject to that application,
A client is letting a property to a tenant who is the Secretary of State for a UK government department. What is the correct form of execution of a deed by the Secretary of State? The tenant’s solicitor proposes to execute the document by way of affixing the seal of the Secretary of State to the document together with a signature of an authorised person. Is there authority to do this?
Q&As
Government departments and government ministers (when acting in their official rather than their personal capacity) are generally regarded as emanations of the crown, which itself is considered to be a corporation sole. A corporation sole consists of one person and their successors in some particular office or station, who are incorporated by law in order to give them certain legal capacities and advantages which they would not have in their natural person. Execution of deeds by a corporation