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A landowner intends to grant a lease of land including a gallop, stables and a house. The tenant will use the property for training of horses. Would this use be an agricultural activity thus meaning a Farm Business Tenancy (FBT) is the appropriate document?
Q&As
A Farm Business Tenancy (FBT) is a business tenancy under the Agricultural Tenancies Act 1995. A tenancy of agricultural land granted on or after 1 September 1995 (the commencement date of the Act) will be an FBT where all or part of the land is used for trade or business throughout the tenancy, and the character of the tenancy is primarily or wholly agricultural or the parties have exchanged notices in prescribed form prior to the tenancy confirming that it is to be an remain an FBT. Agriculture is defined as including horticulture, fruit growing, seed growing, dairy farming and livestock breeding and
A landowner is entering into a wayleave agreement. While being described as an 'agreement' the document contains no consideration and provides for execution as a deed. If the agreement provides for nominal consideration, can it be signed as an agreement rather than a deed? Is there a particular legal reason why a utility provider would prefer a deed to an agreement?
Q&As
A wayleave agreement is a form of agreement between a landowner and a utility supply company allowing the latter to place equipment on or through the land for the purpose of providing power supply apparatus, such as cabling, pylons or other necessary items. Ordinarily, the landowner will receive a payment by way of compensation in return for the right. Wayleaves are regulated by the Electricity Act 1989, among other statutes (in respect of other utilities such as water, gas and broadband) and will either be contractual or compulsorily granted by the Secretary of State where the requirements for a necessary
A landowner is in the process of transferring land to a buyer. However, the buyer has requested that the seller enters into a private deed of drainage easement with an adjoining landowner prior to completion in order to serve the buyer's future development (the buyer will be a successor in title and benefit from the future rights). The adjoining landowner has agreed to proceed. However, the easement land actually falls within the extent of the adopted highway (a large verge area adjoining a county road). Is the easement now superfluous on the basis that the buyer should instead seek permission from the local highway authority for the proposed drainage works?
Q&As
An easement is a right enjoyed by one piece of land (the 'dominant tenement') over another piece of land (the 'servient land'). The easement is a right that attaches to the land, as opposed to a personal right such as a licence. An easement for services is a very common easement that provides for the running through the servient land of services for utilities, such as water, gas, electricity
A landowner is selling self-build serviced plots on a multi-unit site. The landowner will not be responsible for construction of the units. The construction will be undertaken by a third party building contractor under a separate agreement from the plot sale agreement. The buyer of each plot will be required under the plot sale agreement to enter into a building contract on or before completion of the plot sale to ensure consistency of development across the site. Will SDLT be due on the payments under the building contract as well as under the plot sale agreement?
Q&As
Stamp duty land tax (SDLT) is generally calculated by reference to the chargeable consideration given for the subject matter of a chargeable transaction, directly or indirectly, by the buyer or a person connected with the buyer. This is subject to market value charges that apply in certain circumstances. For further details of the market value rules, see Practice Note: SDLT chargeable consideration. Chargeable consideration has a particular meaning for SDLT purposes. Chargeable consideration includes not only money or money’s worth but also other means
A landowner proposes to undertake works on his land which involve excavation, the foundations of which will encroach onto the adjoining owner's land by one metre. It is not clear whether the foundations comprise 'special foundations' as defined in section 20 of Party Wall etc Act 1996. If the landowner obtains the adjoining property owner's consent, does section 6 of the Party Wall etc Act 1996 allow the landowner to construct the foundations in the absence of any other rights to access the adjoining owner's property?
Q&As
Notice requirements in respect of excavations are outlined in section 6 of the Party Wall etc Act 1996 (PWA 1996), and in particular, they deal with excavations which are within between three and six metres of an adjoining property.. Dealing firstly with the matter of 'special foundations', these are defined in PWA 1996, s 20 as: '…foundations in which an assemblage of beams or rods is employed for the purpose of distributing any load'. If the foundations meet the above definition they require the adjoining owner's prior consent in writing. Clearly this
A large cash sum was donated to a charity several years ago for a restricted purpose. It has transpired that the donation has been spent on other purposes and the donor has approached the charity asking for the money back. What are the legal repercussions for the charity under Scottish law?
Q&As
This is potentially a serious matter and it may be advisable to gain specific legal advice. In short, a number of potential matters arise, which include: • there could be a regulatory inquiry by the Office of the Scottish Charity Regulator (OSCR) exploring the misapplication of funds, which might also impact on the charity trustees themselves. The OSCR is likely to explore key issues such as whether there was proper governance in place and how the funds
A lasting power of attorney appoints a solicitor as attorney and contains a clause enabling charges to be made. The donor dies and another firm of solicitors is appointed as executors of the donor's estate. Under what circumstances can the solicitor attorney charge for work undertaken after the donor's death, such as liaising with the care home, notifying the executors of the death, providing information etc?
Q&As
Charging by an attorney An attorney appointed under a property and affairs LPA in accordance with sections 9 to 14 and Schedule 1 to the Mental Capacity Act 2005 (MCA 2005) has the power to do almost anything that the donor could do regarding their property and affairs. The authority conferred by any LPA, both property and affairs and personal welfare (MCA 2005, s 9(1)), is subject to the provisions of MCA 2005 particularly section 1 (the principals) and section 4 (best interests) and any conditions or restrictions specified in the LPA itself: MCA 2005, s 9(4). See Practice Note: LPAs—the attorney's duties and powers. An attorney can claim expenses for carrying
A law firm has been appointed as executor, but wishes to renounce probate. Can it within the deed of renouncement consent to the appointment of another firm in its place, or can it only consent to the appointment of a trust corporation as executor? Alternatively, could the appointed firm appoint a successor by power of attorney?
Q&As
Renunciation of probate by partners Rule 37(2A) of the Non-Contentious Probate Rules 1987, (NCPR 1987) SI 1987/2024 (SI 1987/2024, r 37(2A) provides that any two partners in a firm of solicitors or any other trading partnership may renounce probate on behalf of and with the authority of the other partners, where all the partners were appointed executors and/or residuary legatees and devisees in trust. Following the decision in Re Rogers (deceased), renunciation must be effected by equity partners in the firm of solicitors (they being the only partners entitled to probate). Where the solicitors have become a limited liability partnership or have incorporated, the renunciation may be effected by any two members or directors as appropriate. The Precedent: Renunciation of probate by equity
A lawful development certificate is being sought for a farm dwelling. The property is subject to a planning condition which only allows occupation of the dwelling to a person solely, mainly or last employed in the locality in agriculture. The applicant has lived in the dwelling for over 15 years. The applicant (as the co-owner of the farming enterprise) has employed a farm worker to run the farming operations and has confirmed that he has not been involved with farming activities. The source of the applicant’s current income is unknown but the applicant has confirmed that no income has been derived from the farming operations or by him from any other agriculture or forestry in the last ten years. Would this constitute a breach of the planning condition? Is there any case law on the words ‘solely, mainly or last employed in the locality in agriculture’? As a co-owner of the farming enterprise would this satisfy the planning condition?
Q&As
Section 171B of the Town and Country Planning Act 1990 states that a breach in a planning condition achieves immunity from
A lawful development certificate was granted for the occupation of a dwelling by someone not employed in agriculture thus rendering the agricultural occupancy condition unenforceable. Can there be any sound reason to refuse a section 73 application to remove the condition?
Q&As
The Local Planning Authority (LPA) in this situation may be relying on the judgment in R v Coventry City Council Ex p Arrowcroft Group Plc, which is sometimes cited to refuse an application under section 73 of the Town and Country Planning Act 1990 (TCPA 1990) which seeks to amend conditions which would be inconsistent with the description of development authorised by the original permission. In Arrowcroft, the court held that LPAs can only impose different conditions upon a new planning permission under TCPA 1990, s 73 if they are conditions which the LPA could lawfully have
A lease contains a pre-emption right allowing the landlord to take a surrender for the same price as the tenant is seeking to assign the lease for. The tenant dies and the lease vests in their PRs. The PRs are looking to vest the lease in the beneficiaries under the Will. Will this constitute an assignment which might trigger the pre-emption right?
Q&As
The drafting of the definition of a disposal in the right of pre-emption will dictate what is included as a trigger. The definition of the trigger event should be clearly defined. From the buyer/landlord’s perspective, the definition of a disposal triggering the right of pre-emption
A lease contains an option to renew. The option does not set out a time frame in which completion of the option is to take place. Is there any way of forcing the tenant to complete?
Q&As
A contractual option to take a lease for a further term is a ‘call’ option. It confers a unilateral right on the tenant to call for a renewal lease (often subject to conditions precedent such as all rents being paid up to date and the tenant not being in material breach of covenant). There is no obligation on the tenant to exercise their right, but if they do, the landlord is bound