This Q&A outlines key issues to bear in mind when considering whether property investment arrangements constitute a collective investment scheme (CIS). What is a CIS and do property investment schemes fall within the definition? A collective investment scheme (CIS) is defined in section 235 of the Financial Services and Markets Act 2000. Broadly speaking, a CIS is any arrangement: • which enables participants to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the property, • where participants do not have day-to-day control over the management of the property, and • where either the contributions and profits or income are pooled, or the property is managed as a whole by or on behalf of the scheme operator, or both. Whether or not a property investment arrangement is a CIS depends on its individual structure and the facts surrounding it. If the arrangement meets the conditions set out below and is not exempt, then its operation and promotion will likely come under Financial Conduct Authority (FCA) regulation. If

The law of passing off can protect addresses or property names provided goodwill has attached to that name or address. While customers may need more education from a trader to treat its address or property name as a mark (rather than just a correspondence address), there is nothing in principle precluding someone trading under the mark ‘Rosewood Cottage’

There does not appear to be a specific authority on this point. Maintenance of a highway Section 41 of the Highways Act 1980 (HIA 1980) provides that the highway authority is under a duty to maintain the highway. It is the duty of the highway authority to maintain the road in such a state of repair as to be passable in safety at all seasons of the year. See Practice Note: The duty to maintain the highway. Highways that are maintainable at the public expense are further defined by HIA 1980, s 6. You may also find the attached Lexis+® UK Local Government Practice Note: Statutory adoption of highways—maintenance responsibility useful on this point. Definition of highway The definition in the HIA 1980 covers any road, street, path, pavement, passage or right of way over which there is a public right of access. HIA 1980, s 328 states that a highway is the whole or any part of

The law relating to the recording of conversations between private individuals and the use of those recordings in court proceedings is a developing area. As a matter of first principles, there is no offence committed where an individual covertly records a conversation with another individual. The Regulation of Investigatory Powers Act 2000 (RIPA 2000) applies to public bodies but not to individuals. Likewise, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, SI 2000/2699, apply to businesses in respect of the recording of conversations without notice to the person being recorded or in certain specified exceptional circumstances. The admissibility of covert recordings as evidence has been considered in several cases by the courts. In Jones v University of Warwick (which was considered in Mustard v Flower, below), an enquiry agent posed as a market researcher and gained access to the claimant’s home. The defendant sought to use as evidence video of

The question of admissibility of evidence in civil proceedings is whether the evidence is relevant to a fact in issue in the case. Admissibility is always decided by the judge and all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion. What is relevant (namely what goes to prove or disprove a matter in issue) will be decided by logic and human experience, and facts may be proved directly or circumstantially. In civil proceedings, evidence must not be excluded on the ground that it is hearsay. In civil proceedings, 'hearsay' means a statement made otherwise than by a person while giving oral evidence in the proceedings

Contractual clauses—termination A contractual termination clause provides either or both parties with the right to terminate a contract under a defined set of circumstances. Such circumstances may be broadly or narrowly defined and may include either fault and/or non-fault based triggers. For an example of a termination clause, see Precedent: Termination clause and Drafting Notes. Whether a termination right also constitutes a ‘remedy’ depends upon whether such right to terminate (and the consequences of exercising that right) does in fact provide relief or remedy to an afflicted party, the language of the particular contract and the circumstances under which a party may exercise its right to terminate. When considering exercising a right under a termination clause, any clause setting out the ‘consequences of termination’ should also be closely scrutinised. For example, see clauses

The general rule is that where a purchaser of a freehold interest in land enters into obligations with the vendor, while the burden of restrictions will in many cases bind a successor in title, obligations which require the covenantor to do something will not pass when the freehold estate is transferred. The rentcharge is a means by which an obligation to pay money can pass to the successor of the original purchaser. While there is no difficulty as a matter of privity of contract in imposing an obligation upon the purchaser to pay the vendor for the provision of services connected with the land, the position is less straightforward when the vendor passes the freehold interest to a third person. The rentcharge, however gives its owner the right to require the periodical payment of money from the owner of freehold land. It is not a mortgage

Charge over receivables? One factor will be the specific terms of the fixed or floating charge and whether it covers repayments under a loan agreement (ie receivables). Questions to ask are whether the charge covers receivables, and if these fall under the floating charge (rather

Right to work checks It is unlawful to employ an adult who is subject to immigration control who has: • not been granted permission to enter or stay in the UK, or • permission that is invalid, expired or otherwise ceased to have effect (eg cancelled or curtailed) or which is subject to a condition preventing them from accepting the employment Checking whether a person has the right to work and the right to undertake the kind of employment and hours required is necessary for an employer to avoid breaking the law. Some people with

For the purpose of this Q&A we have assumed that the bailiff is taking control of goods under the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) and the Taking Control of Goods Regulations 2013 (TCGR 2013), SI 2013/1894. An enforcement agent may take control of goods only if they are on premises that they have power to enter under TCEA 2007, Sch 12 or are on the highway. An enforcement agent may enter premises to search for and take control of goods if they reasonably believe that they are the place or one of the places where the debtor usually lives or carries on a trade or business. The enforcement agent has power to use reasonable

The Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999) provides a statutory exception to the common law doctrine of privity of contract. This provides, in specified circumstances, for third parties to enforce a benefit conferred on them under a contract to which they are not themselves a party. For details of C(RTP)A 1999 and its application, see Practice Note: Third party rights—the Contracts (Rights of Third Parties) Act 1999. C(RTP)A 1999 makes no express provision as to whether a third party may assign rights conferred on it under the Act to a fourth party. We are not aware of any specific decision which covers this question. However, the Law Commission, in its 1996 report Privity of contract: Contracts for the benefit of third

Such works may fall under section 105(1)(b) of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), which defines construction operations as including roads maintenance works: ‘...construction, alteration, repair, maintenance, extension, demolition or dismantling of any works forming, or to form, part of the land, including (without prejudice to the foregoing) walls, roadworks, power-lines, electronic communications apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipe-lines, reservoirs, water-mains, wells, sewers, industrial plant and installations for purposes of land drainage, coast protection or defence’ (our emphasis) Alternatively, the works may fall under HGCRA 1996, s 105(1)(e) if they are considered ancillary to road maintenance works: ‘operations