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Where one trustee is resident abroad and one in the UK and at the time of the settlement the settlor was UK resident but not domiciled, what is the residence of the trust for UK tax purposes?
Q&As
With effect from 6 April 2007, the rules to determine the residence of a body of trustees were re-drawn and are identical for both income tax and capital gains tax. Prior to that date, it was possible for trustees to be resident in the UK for the purposes of one tax, but not the other because of the different rules that applied. The rules apply in relation
Where original documents are emails, but these are then printed off so that they are filed in hard copies, does the disclosure list have to comply with CPR 31.10 or PD 31B? Inspection will not take place on an online or electronic platform; instead the hard copies will be provided.
Q&As
CPR 31.10(2) requires that each party make and serve on every other party a list of documents in the relevant practice form. The list identifies: • the extent of the search that has been made to locate the documents • the documents which are available for inspection • the documents which your client claims a right or duty to withhold from inspection • the documents that are no longer in your client’s control and what has happened to them Where electronic documents are present, this may impact the form of the list of documents. CPR PD 31B deals with electronic documents. Before considering the application of CPR PD 31B, it should be noted that there is a distinction between: (1) paper documents, which a party puts into electronic
Where outline planning permission is granted prior to a community infrastructure levy (CIL) charging schedule being in place; but one is in place by the time of grant of the approval of reserved matters, would CIL be payable? Would the position be the same if the outline planning permission was granted prior to the entry into force of the changes introduced by the Community Infrastructure Levy (Amendment) (England) (No 2) Regulations 2019?
Q&As
The Community Infrastructure Levy (CIL) was introduced by section 205 of the Planning Act 2008 (PA 2008) and came into force in 2010. It allows local authorities to raise a charge on new developments in their area on developments which create a new dwelling or additional floor space of 100sqm or more, where the local authority has consulted on and approved a charging schedule setting out the levy rates. Detailed rules are set out in the Community Infrastructure Levy Regulations 2010, SI 2010/948 (the CIL Regulations) as amended, made under the PA 2008. The levy is charged on
Where parents have separated and have left England, each with one child of the family, to live in different countries in the Middle East having each obtained child arrangements orders that make provision regarding who the children are to live with and having obtained permission to remove the children from the jurisdiction, does the English court have jurisdiction in proceedings under the Children Act 1989 in relation to the children? Can jurisdiction be established relying on domicile?
Q&As
Jurisdiction under the Children Act 1989 (ChA 1989) is governed by the Family Law Act 1986 (FLA 1986). Prior to implementation period (IP) completion day (ie 11pm 31 December 2020) (referred to in UK law as ‘IP completion day’), FLA 1986, s 2 referred to the jurisdiction of the courts in England and Wales by virtue of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis, also known as Brussels IIA) or the Convention on Jurisdiction, Applicable Law,
Where part commercial and part residential premises are let under a single lease which the landlord intends to forfeit, and the residential part is occupied under a (lawfully granted) assured shorthold tenancies (AST), will the AST end on forfeiture, and if so, will the undertenants be entitled to relief?
Q&As
Forfeiture of a lease is a unilateral action by the landlord which has the effect of terminating any underlease (subject to the below). However, a subtenant has the right to apply for relief from forfeiture under LPA 1925: • LPA 1925, s 146(4), or • in respect of forfeiture for breaches other than non-payment of rent, under LPA 1925, s 146(2)
Where part of a freehold is being offered for sale by way of a Section 5A offer notice under the Landlord and Tenant Act 1987, and sale of that part would lead to severed reversion of a leasehold (ie the leasehold is larger than the freehold being offered), should the offer notice make reference to the part of the leasehold which remains unaffected by the proposed disposal of part of the freehold, and to what extent (eg cover fee splits, etc)?
Q&As
Where a landlord proposes to dispose of the whole or part of its interest, under the Landlord and Tenant Act 1987 (LTA 1987), qualifying leasehold tenants have a right of first refusal giving them the right to seek to acquire the interest being offered for disposal. The landlord must serve a notice on the qualifying tenants pursuant to LTA 1987, s 5 complying with the relevant requirements depending upon the nature of the proposed disposal. The disposal by the landlord may be of part but not all of his interest, in which case the right of first refusal applies
Where part of a piece of land is sold and the transferor (Y) gives positive covenants in favour of the transferee (X) and also covenants that on any further disposition of all or part of the remaining land that Y will procure a deed of covenant from the disponee (Z) that Z will comply with the positive covenants, is there any requirement to obtain the consent of X to the deed of covenant?
Q&As
It is often the case that, where part of an existing title is transferred or sold, it will be a condition of that sale that certain covenants are included. Such covenants might include rights of way or the passage of services over the transferred land for the benefit of the retained land. While certain covenants may be implied by operation of section 62 of the Law of Property Act 1925, the rule in Wheeldon v Burrows and/or by necessity, to avoid any risk of a dispute, the
Where part of land demised under a lease is to be relinquished, from a landlord’s perspective, would it be better to effect this by way of a deed of surrender of a part or a deed of variation reducing the demise under the lease?
Q&As
A variation of a lease will sometimes result in an implied surrender and regrant of land. This takes place where the variation cannot be effected in law without a new lease being granted. The clearest example of when this occurs is where the parties seek to vary a lease by either increasing the amount of land which is demised under the lease or by increasing the term of the lease. Neither of these can take place with a simple variation; instead, the law implies that the old lease is surrendered and a new one granted (see Jenkin R Lewis & Son v Kerman, Friends Provident Life Office v British Railways Board, and Well
Where part of land is sold with the benefit of a right of way for access over the retained land (transfer 1) and the retained land is then sold without reference to this easement (transfer 2), if transfer 2 is registered at the Land Registry prior to the registration of transfer 1, can the now land locked purchaser in transfer 1 claim the easement still applies?
Q&As
The grant of an easement must be protected by way of registration in order for it to be a legal easement and thus binding on successors in title of the servient land. If an easement granted in a transfer is not registered, then it is likely to take effect as an equitable easement. An unprotected equitable easement cannot take effect as an overriding interest and bind a purchaser (for example, under transfer 2). See:
Where part-time workers work overtime, should their extra pay merely reflect basic salary, or should it also contain elements relating to other employment benefits, and/or pension and/or payment in lieu of holiday entitlement?
Q&As
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551 (PTW Regs 2000), a part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker: • as regards the terms of his contract; or • by being subjected to any other detriment by any act, or deliberate failure to act, of his employer The right not to be less favourably treated applies only if the treatment: • is on the ground that the worker is a part-time worker, and • is not objectively justified For further information, see our Practice Note: Part-time workers. Where the rate at which overtime is paid, or the threshold at which it begins to be paid, has a different effect on part-time workers as compared to full-timers, this will often open up the possibility of part-time workers
Where parties 1 and 2 are jointly and severally liable on a debt and separate payment arrangements have been made with the two parties, will payment by party 1 refresh the cause of action for the purposes of section 29 of the Limitation Act 1980 (LA 1980) as against party 2? If party 1’s payment fails (eg bounced standing order or direct debit) does this refresh the cause of action as against party for the purposes of LA 1980, s 29?
Q&As
This Q&A, focuses on section 29 of the Limitation Act 1980 (LA 1980) and failure of part payments of a debt for which two parties are jointly and severally liable. Fresh accrual (limitation) LA 1980, s 29 states: '(5) Subject to subsection (6) below, where any right of action has accrued to recover— (a) any debt or other liquidated pecuniary claim; or (b) any claim to the personal estate of a deceased person or to any share or interest in any such estate; and the person liable or accountable for the claim acknowledges the claim or makes any payment
Where parties agree a clean break upon divorce, what is the position with regard to child maintenance, and will that continue to be paid?
Q&As
A clean break involves the dismissal of the claims by each spouse or civil partner against the other for financial remedies on divorce or dissolution. The parties can agree a financial settlement which provides for a clean break, but it is only once the court has approved the terms of their agreement and made a consent order that the parties will be released from any future claims. A clean break can involve a mere capital clean break, by which the parties intend to deal once and for all with all of their capital claims against the other, by way of lump sum, property adjustment and pension sharing orders. However, a full clean break involves the dismissal of all claims, including claims for future maintenance, both during the parties’ life times, and on death (by preventing claims against the deceased’s