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Where an original enduring power of attorney (EPA) has been lost, can a certified copy of the EPA be registered?
Q&As
The Office of the Public Guardian guide to enduring powers of attorney states [at page 15]: ‘If the original EPA has been lost, destroyed
Where an outline permission has been granted and a subsequent section 73 application to amend a condition of the outline permission is granted, there then exists two separate permissions. Can a reserved matters application be made pursuant to both the section 73 application and the original outline permission or does it have to be made pursuant to one permission only?
Q&As
It is a fundamental principle of the planning system that a successful section 73 of the Town and Country Planning Act 1990 application will result in the grant of a new planning permission, leaving the original planning permission intact and unamended, and the applicant free to choose which permission
Where an outsourcing agreement provides that the transferor is responsible for employment-related liabilities arising ‘on or before the transfer date’, does this mean that, if the transferee terminates the employment of a relevant employee on the transfer date itself the transferor might be liable for the termination costs?
Q&As
Position under TUPE 2006 Under regulation 3(1)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, a business transfer occurs where there is: • a transfer of an undertaking or business (or part of an undertaking or business) • situated immediately before the transfer in the UK • to another person • where there is a transfer • of an economic entity • and the economic entity retains its identity after the transfer For further information, see Practice Note: TUPE—business transfers. Under TUPE 2006, SI 2006/246, reg 3(1)(b), a service provision change takes place where: • activities cease to be carried out by a person ('a client') on his own behalf and are carried out instead by another person on the client's behalf ('a contractor') • activities
Where an overdraft is repayable on demand, would you agree that the sum due under it is not a qualifying debt for the purposes of a debt relief order under section 251A (2)(a) of the Insolvency Act 1986, where no demand has been made, on the basis that it is not 'payable immediately or at some certain future time?'
Q&As
Although we are not aware of any case law considering this issue, we suggest that an overdraft should, subject to the specific terms of that facility indicating otherwise, be considered as a 'qualifying debt' for the purposes of section 251A(2)(a) of the Insolvency Act 1986 (IA 1986), save to the extent that the overdraft is secured (IA 1986, s 251A(3)), A bank will usually be able to ask for repayment of an overdraft at any time. This may happen for example if an account holder consistently goes over their overdraft
Where an overpayment of wages has been made to an employee, is it lawful to deduct the overpayment from their final pay if that final pay comprises accrued but untaken holiday pay only?
Q&As
Under section 13 of the Employment Rights Act 1996 (ERA 1996), an employer may not make a deduction from the wages of any worker employed by the employer, unless: • it is required or authorised to be made by virtue of any statutory provision or any relevant provision of the worker's contract, or • the worker has previously signified in writing their agreement or consent to the making of it For more information, see the section of Practice Note: Deductions from wages entitled
Where an overseas entity disposes of its only or last remaining UK property, it cannot make a s9 application for removal from the ROE until the registration of the transfer at HMLR is complete. In a rare situation where the transferee has not applied to register the transfer, what can the transferor do to compel the transferee to proceed and complete the registration as the overseas entity is keen to remove itself from the Register of Overseas Entities? Would an application to the Court/Tribunal be required under LRR 2003?
Q&As
Since 1 August 2022 overseas entities which wish to buy, sell or transfer property or land in the UK, must registered with Companies House and state who the registrable beneficial owners or managing officers are. The Register of Overseas Entities was introduced by section 2 of the Economic Crime (Transparency and Enforcement) Act 2022 (EC(TE)A 2022). By EC(TE)A 2022, s 9, an application by a Registered Overseas Entity for removal from the Register must contain a statement confirming amongst other things that the entity is not registered
Where an owner has opted to tax on a building and is selling it where the property is sold with the benefit of an existing lease can this be described as a sale of a going concern even though this is not the sale of a business?
Q&As
The charge to VAT can be avoided on the transfer of a business as a going concern under the Value Added Tax (Special Provisions) Order 1995 (SI 1995 No 1268). This provides that where certain conditions are met, no VAT is chargeable on the assets of the business. These conditions are as follows: • the assets are to be used by the transferee in carrying on the same kind of business (whether or not as part of any existing business) as that carried on by the transferor in relation to the whole or part transferred • where the transferor is a taxable person, the transferee is already, or immediately becomes as a result of the transfer, a taxable person • there is no significant break in the normal pattern of trade either
Where an ownership certificate submitted in respect of a planning application has been challenged, what duty is a local planning authority under to undertake enquiries regarding its validity?
Q&As
Section 65(5) of the Town and Country Planning Act 1990 (TCPA 1990) provides that: • a development order can make provisions requiring notice to be given of any planning application and any applicant for such permission to issue a certificate as to the interests in the land to which the application relates or the purposes for which it is used (an ownership certificate) • ‘provisions shall be made’ by a development order for the purpose
Where an underlease is being extended pursuant to a section 42 notice under the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) and the freeholder is the competent landlord, there is a deemed surrender and regrant of any intermediate lease per LRHUDA 1993, Sch 11. What will be the length of the intermediate lease following the deemed statutory regrant?—Will it be the same as the flat lease being extended?
Q&As
Where there is an intermediate tenant between the qualifying tenant seeking a new lease and the competent landlord, there is a deemed surrender and regrant of the intermediate lease under paragraph 10(1) of Schedule 11 to the Leasehold Reform, Housing and Urban Development Act 1993, but that regrant is on the same terms as the original intermediate lease including as to rent and term—see Nailrile Ltd v Cadogan. The intermediate
Where an undertaking given in proceedings under the Family Law Act 1996 provides for the respondent not to threaten or use violence, molest or otherwise interfere with the other party, would allegations the applicant considers to be unfounded that are made to the court and to the police amount to a breach of that undertaking?
Q&As
The Family Law Act 1996 (FLA 1996) provides for the making of non-molestation orders under FLA 1996, s 42, but nowhere does it define what ‘molestation’ is. The term has been considered to be synonymous with ‘harassment’. In the case of In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman, Munby P commented on the terms ‘harassment’ and ‘molestation’ at para [29]: ‘“Harassing", like "molesting", is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense,
Where an unmarried couple are jointly purchasing a property, but one of them has a child from a previous relationship who will be living at the property with them, what can the other party put in place to protect his position in the event they separate and he wants to sell the property but she wants to stay living there with the child?
Q&As
It will, in the first instance, be necessary for the parties who are purchasing the property jointly to establish whether or not they wish to purchase as joint tenants or tenants in common. Where land is co-owned, legal title is always held as joint tenants and the presumption is that beneficial or equitable ownership is also as joint tenants. Each joint tenant has an identical interest in the whole land and the interest of one passes automatically on death to the survivor. When the survivor becomes sole legal and beneficial owner, the trust ends. Where the beneficial interest is held as tenants in common, interests can be unequal and the share of one does
Where an unmarried couple purchase a house then separate, how may the sale proceeds be shared?
Q&As
Where property is held in the name of one party only, that person is presumed to be the owner of the entire beneficial interest as well, unless another party can establish an interest under an implied, ie a resulting or constructive trust (see Lloyds Bank v Rosset). Case study An unmarried couple purchased a house. A put in 75% of the deposit and B paid 25%. A was the sole legal owner and was the only person with the mortgage. A & B shared the cost of the mortgage payments and bills. A & B have now separated. B wants a share of the sale proceeds of the property. Resulting trust Where a person contributes