Do you own a holiday home abroad?

If you are fortunate enough to own a holiday home in another country that is part of the EU then following a recent EU Regulation you should probably review your Will. If you are among that number who have not made a Will you should certainly do so.

EU Regulation 650/2012, colloquially known as “Brussels IV” is an attempt to harmonise the laws of succession in the member states. It should mean that provided you leave an English Will your foreign property will be allowed to pass under the same terms, rather than be at the mercy of the idiosyncrasies of a foreign jurisdiction.

We have specialist lawyers who can advise on the preparation of an English Will that accords with Brussels IV and contact with specialist lawyers in other EU countries to whom we can refer you for further advice.

We urge you to make an appointment and look forward to meeting with you.

Sorting out Finances on Divorce

This month (April 2016) the Family Justice Council of England and Wales has published it’s guide, Sorting Out Finances on Divorce. It is designed for “those who have normal levels of wealth” and is intended to demystify what is a complex area of law, but at over 50 pages is still a daunting read.

Therefore, Kiteleys Family team have summarised some of the key points:

• The objective in all cases is to achieve a result which reflects the best possible outcome for each family.

• The law does not set out hard rules or a mathematical formula. Each case has to be considered on it’s particular circumstances.

• The welfare of children under the age of 18 has to be “the first consideration”.

• In most cases a “fair outcome” is based on meeting the family’s “needs”. As a result, in most situations, assets will not just be divided 50/50.

• Only in very rare and extreme cases will a spouse’s share of the assets be reduced because of his or her bad conduct.

• Achieving a “clean break” should be the aim, for the spouses to achieve financial independence from each other, but this might not be fair or possible where there are children or the marriage has been long.

• The honest “disclosure” of all financial information is very important.

• Reaching an agreement away from court is generally cheaper and quicker than going to court for a judge to make a decision, but an agreement will still need to be formally recorded in writing to be legally binding.

• It may be sensible to seek legal advice on the wording of an agreement document, such as a “consent order”, to ensure that it is legally correct.

However, this summary can only briefly touch on the complex issues which a family face when spouses separate and divorce. Also, the recently published guide does not deal with the entirely different and complex law concerning financial arrangements between couples who are not married when they split up.

If you have any family legal problem, then help is available via Kiteleys Family team.

A Fixed Fee Meeting and a Fixed Fee Divorce are available.

Contact any Kiteleys Office to be put in touch with a specialist family law solicitor.

Buy to let – More Doom and Gloom?

There can be no doubt that Government action over the past year will have an effect on the market for residential buy to let properties.  Buyers will need to factor in the new 3% Stamp Duty surcharge on properties over £40,000 and existing landlords will be affected by limits on mortgage interest relief and ongoing pressures on income from regulations for gas appliances, electrical installations and fire-retardant furnishings.  As if these factors weren’t a sufficient deterrent, Landlord’s of older properties in particular now need to pay close attention to the Energy Performance Certificate for the property.  For some time now a Certificate has been required when renting out a property, but the actual contents were largely ignored by both landlords and tenants.  This is about to change.  Since 1st April 2016, tenants of short-term tenancies have the right to require alterations to their property to increase its energy rating if that rating is F or below.  The landlord cannot unreasonably withhold consent to the tenant’s request.  From 1st April 2018, it will be unlawful to let out properties with a rating of F or below.  Listed buildings will be given a further two years to comply, presumably to allow landlords the additional time needed to gain all the necessary approvals.

All of this paints a fairly gloomy picture for the future of buy to let properties, however the continued demand for accommodation shows little sign of subsiding and buy-to-lets could still prove attractive to those who prefer a bricks-and-mortar home for part of their future growth or retirement fund.  All investment decisions should be taken with advice from an experienced and qualified independent financial advisor, and if the decision is to invest, the Kiteleys residential property team, with huge experience of the buy-to-let market, will be on hand to make that investment decision a reality.

What you need to know about the stamp duty changes…

From 1 April 2016 anyone purchasing an additional property will have to pay an extra 3% stamp duty tax.

Buy to let Stamp Duty Changes

BandExisting residential SDLT ratesNew residential SDLT rates as of 1 April 2016 for second homes and buy to let investors£0-£125k0%3%£125,001 – £250k2%5%£250,001 – £925k5%8%£925,001 – £1.5m10%13%£1.5m plus12%15%

Who will pay more stamp duty?

Anyone owning a second property (that is not their main residence) and purchasing another or changing the property (they do not already live in) will likely be affected by the extra stamp duty changes.

Surprises arising from Budget 2016 SDLT….

To assist proposed buyers who may have been hit with delays in the selling process, the government are offering buyers 36 months from 25 November 2015 to apply for a stamp duty refund. To be clear, this change will only apply to those who are selling a main home and purchasing a new one at the same time.

Unfortunately, if you are buying a property with someone who already owns another property you will be subjected to the additional rates – there will be no apportionment for the ‘first time buyer’.

Originally there were talks that individual investors or companies who were buying 15 or more properties would be offered some form of relief. However, this is not the case, there is no exemption for large scale purchases or portfolio investors.

The budget allows for capital gains to be reduced from 28% to 20% for higher rate taxpayers and reduced to 10% for lower rate taxpayers (residential property has been excluded from this). Buy to let and second home owners have been deliberately excluded from the capital gains cut.

It has been speculated that the chancellor’s aim is to tackle the housing shortage and that the receipts from the extra stamp duty would be put towards community housing trust projects.

 SDLT on leases….

From 1 April 2016, there will also be a new 2% rate for high value leases with a net present value above £5 million.

 Are the stamp duty changes going to have an impact on buy to let investors?

Buy to let landlords, whether a company or an individual, are usually investing for long term. With this in mind, as a buy to let investor with a portfolio the new tax changes are not likely to make a big impact given that they would be well established and the rents would go up long term.

Prenuptial Agreements

Prenuptial agreements can provide a measure of certainty and the means to protect pre marriage assets, inheritance and existing family commitments such as children from a previous marriage. A prenuptial agreement is a written formal agreement entered into by the couple before they get married that sets out what they have agreed will happen to their assets in the event of a future divorce. Any couple who are contemplating marriage or entering into a civil partnership can enter into a prenuptial agreement.

Whilst it is better to agree arrangements before the marriage takes place, it is possible to enter into similar agreements once a marriage has occurred. These are known as post nuptial agreements.

Generally speaking you should sign the prenuptial agreement some weeks before the date of the actual wedding or civil ceremony.   If you rush into a prenuptial agreement UK courts tend to be open to an argument that one party was under a degree of duress and this can mean that the prenuptial agreement will not be enforced by a UK court. Many divorced people wish they had made their partner sign a prenuptial agreement prior to marriage. However, there are various reasons why people do not agree to sign a prenuptial agreement. Many people think it is unromantic.

Whilst prenuptial agreements are not legally binding in England and Wales, the case of Radmacher v Granitino 2010 confirmed that the Supreme Court will give weight to the existence of a prenuptial agreement when deciding what Financial Orders to make on divorce provided that it is entered into freely and it is not unfair to one party.

If you need help with any family matter, please get in touch with a member of our Family Team.

The myth of “common law marriage”

The importance of protecting yourself legally has been emphasized again in a recent case. Joy Williams had co habited with Norman Martin in a property they owned together as ‘tenants in common’ for 18 years before he died. When he died Ms Williams expected to receive his half of the property. However, Mr Martin died suddenly without having updated a very old Will and instead Mr. Martin’s half of the property was bequeathed to his estranged Wife.

“The idea of a common-law husband or wife is an urban myth.”

 This case outlines the fundamental importance of ensuring that you leave an up to date Will that reflects your current circumstances and guarantees that your wishes concerning the devolution of your estate are carried out.

In addition when co-habiting with a partner, no matter for how long, you do not accrue any legal rights in relation to the distribution of their assets after they die. Until such time as the legal position of co-habitees reflects modern society it is vital to make a Will to ensure that your assets are left to whom you want them to be when you die.

If you would like to make a Will, please contact us and one of our specialist lawyers will be happy to talk through the process with you.

Misdiagnosis of Sepsis

There has been extensive press coverage in recent days regarding the difficulties encountered by medics when diagnosing cases of sepsis. This has seen the Health Secretary, Jeremy Hunt, apologise for the shortfalls in NHS care relating to this serious condition (http://www.bbc.co.uk/news/health-35410840).

So, what is sepsis? Sepsis is triggered by infection and causes the immune system to go into overdrive causing inflammation in the body’s tissues and therefore interfering with the flow of blood. Rapid diagnosis and treatment of the condition is required as failure to do so can lead to multiple organ failure and eventual death. It is estimated that over 100,000 people in the UK are admitted to hospital each year with sepsis, of which around 37,000 will die. An estimated 12,000 of these deaths are avoidable.

There are a number of symptoms to look out for (http://www.nhs.uk/Conditions/Blood-poisoning/Pages/Symptoms.aspx); however there are certain categories of people who are at increased risk of developing sepsis. These include:

• Those with a weakened immune system.

• Those who are already in hospital.

• The elderly, the very young and pregnant women.

• Those who have just had surgery or have been involved in an accident.

Experts assert that the trouble with diagnosing sepsis is that it can present in a number of different ways posing obvious difficulties to medics when trying to make an accurate diagnosis. The key is in recognising that a patient has the condition before the “red flag symptoms” develop (http://www.bbc.co.uk/news/health-35409266).

Following the identification of the difficulties that are being encountered by healthcare professionals NICE have begun consultation earlier this month to produce guidelines which will assist in speeding up diagnosis and treatment of sepsis (https://www.nice.org.uk/news/press-and-media/nice-consults-on-guideline-to-speed-up-recognition-and-treatment-of-sepsis).

A drive to improve the identification and treatment of sepsis, resulting in the prevention of avoidable deaths would be welcomed by all I am sure. However, it is disappointing that this is still being contemplated rather than implemented when these difficulties were identified and reported on by the Parliamentary and Health Service Ombudsman nearly 3 years ago. (http://www.ombudsman.org.uk/__data/assets/pdf_file/0004/22666/FINAL_Sepsis_Report_web.pdf)

Purchasing a Mortgage Re-possession at Auction

Potential Problems and Pitfalls

Purchasing a re-possessed property can seem like a good way of acquiring a cut price property for investment or for occupation. Without the right advice, however, these “bargains” can often have defects that potentially take many years and tens of thousands of pounds to put right, or in the worst case you could be left with a property that is virtually worthless.

Unlike a normal purchase where there is a pre-contract stage to give you time to check the contract, make searches and arrange your finances, if you bid successfully at auction there is an immediate binding contract and you buy the property “warts and all” subject to any legal problems or defects in the property.

The key questions to consider are:

• Who is selling the property?

It will very often be the mortgage company exercising its power of sale under the mortgage and as such the mortgage company will not be the registered owner of the property. It is accordingly necessary to consider whether the power of sale has arisen (which will require examination of the original Mortgage Deed) and an examination of the title to discover whether the mortgage was a first or second charge over the property. If the mortgage company selling only has a second charge then it is sometimes necessary to enquire as to whether the purchase price achievable will cover the first mortgage, failing which the holder of the first mortgage may refuse to discharge that mortgage. Auction sale packs should at the very least contain an acknowledgement by the mortgage companies that they will discharge their mortgages and leave you as a purchaser with clear title to the property, as the last thing you will want is to buy a property with an existing mortgage.

• What is the status of the current legal owner?

If the owner is bankrupt, there may be bankruptcy notices against the property requiring that no transfer of the property be registered without the consent of the legal owner’s Trustee in Bankruptcy. Again, the auction particulars should given an indication as to how this problem will be overcome.

• What title guarantee is being offered?

Very often a mortgage lender will sell a property under its power of sale with no title guarantee whatsoever. This means that you will have no comeback against the mortgage lender if it subsequently turns out that they were not entitled to sell the property. This makes it crucial to have a full legal examination of the title and the Mortgage documentation.

• Who owns the contents of the property?

These may still belong to the legal owner of the property, who may not have taken steps to remove them. They can also be owned by a Trustee in Bankruptcy if the legal owner is bankrupt.   You cannot assume that merely because the contents have not been removed that they belong to the mortgage company.   The safest course of action is to assume that nothing of any value has been left in the property on purpose and any items that are there must be considered to be “on loan” until such time as they are collected, with the added obligation that you may be required to repair or replace any items that become damaged or cease to function.   The law assumes that after a reasonable period of time has passed, the items are treated as having been abandoned by the owner, however the length of time that is “reasonable” will depend to a large extent on the value of the item and the ease by which it can be removed from the property if required.

• What is the physical condition of the property?

Some borrowers with mortgage arrears are unlikely to have paid out the necessary sums for upkeep of the property and, indeed, the property may be in such a poor state and condition that the only option was for the property to go to auction rather than be placed on the general market. Nothing short of a full structural survey will suffice and you should ensure that your surveyor reports to you on the likely value of the property to avoid you paying excessively at auction. You should also have the electricity and gas wiring, cabling and piping checked by an appropriately qualified person.

• Plans – Do the plans include the whole of the property you think you are buying?

 They should be checked on site.

• Is the property freehold or leasehold?

If the property is leasehold, you will need to ensure that you have read through all of the obligations (covenants) on the part of the tenants contained in the lease to ensure that they have all been complied with. If you purchase a leasehold property and there is an existing breach of covenant then you could be liable to have the property forfeit by the landlord for that breach of covenant and you cannot always be guaranteed to have the sympathy of the court in applying for relief from forfeiture. The most common reasons for forfeiture are unauthorised alterations (look out for signs of any work recently carried out to the property), lack of repair (this is where your survey report becomes increasingly important), rent arrears and service charge arrears. Usually when purchasing a leasehold property you would be provided with a clear ground rent and service charge receipt from the landlord or the landlord’s agents, however this cannot be guaranteed to be forthcoming from the mortgage lender and therefore you must be prepared to make your own enquiries. You must also be prepared to ask questions of the owners of any surrounding property owned by that landlord to try to identify any potential problems that exist with the Landlord.

• Have you inspected the property?

In a usual sale by private contract, you will have the opportunity of asking the Seller various questions in relation to the property. Your solicitor will also ask a number of questions on your behalf. Some of the key enquiries raised relate to any rights which any other person may have over the property that are not disclosed in the title deeds. As you will not have the benefit of asking these questions (it is very unlikely that the defaulting borrower will be persuaded to answer them), you must make your own inspections. You must inspect the property for signs that anyone else uses the property, including pathways and any pipework and cabling underneath, over or through the property and you should make enquiries of the gas, electricity, telephone and water companies to try to identify whether their records show any pipes etc. going across the land.  Your solicitor can assist with this if required. You should also consider the access to the property and whether it crosses anybody else’s land and may require their permission. You will also need to enquire and inspect to see if there are any current occupiers of the property. The property should be vacant. As with all properties purchased, it is a good idea to inspect the property at different times of day and night both on weekdays and at weekends to get as full a picture as possible of the property being purchased, surrounding properties and the area in general.

• Have you carried out the appropriate searches?

The mortgage lender may have provided you with the result of a local search which they commissioned in respect of the property. This will be a search of the local authority’s records, however it is unlikely to be an “official” search and is most likely to be a search carried out through a search agency. In our experience search results produced by search agencies tend to be less accurate than official searches and we would always advise commissioning a local search yourself. Local Authorities’ records can reveal a lot of information about a property, including its planning history and any existing action that the local authority is taking in relation to the property (e.g. existing compulsory purchase orders).   You should also carry out a water and drainage search if one has not been commissioned by the mortgage lender and make further enquiries if you do not like the results. A useful tool is also an environmental search, which may reveal historic land uses that may contribute to subsidence or environmental contamination of the property, both of which will blight the property in the eyes of a future purchaser. We would also recommend that you carry out a chancel repair search to ensure that the property has no likelihood of suffering from an existing liability for chancel repair (an old medieval “tax” for the upkeep of the inner part of the medieval parish church) and, upon a successful bid being accepted at auction, you may need to put in place appropriate chancel repair insurance to cover against any liability to pay for the upkeep.

• Will you need any mortgage finance?

If you require a mortgage in order to complete the purchase then it is important that you have a mortgage offer in principle before you bid. You will be required to pay a deposit upon a successful bid and you must ensure that you have the funds available (a bounced cheque will often lose you the deal and leave you open to a claim for damages).   Your mortgage lender will instruct solicitors to consider the property in detail after exchange of contracts so that they can be sure the property offers good security for the amount being advanced. Your own solicitor can often act on behalf the lender as well, however in order to give a clear certificate to the lender confirming that the property offers adequate security, your own solicitor will need to be happy with the property prior to exchange of contracts.

• How much time do I have between a successful bid and completion of the deal?

This depends on the auction contract. You should obtain full legal advice on the auction contract as you will be treated as having accepted all the terms of the contract the moment you submit a bid for the property which is accepted by the auctioneer.

Horror Stories. We have been involved in cases where clients have purchased at auction without checking any documents and without seeking our advice. On one occasion there was no legal access to the first floor flat and on another one there was an occupier in the property not notified to the buyer. On a third case a client took a chance in believing she could sell her own property by the time of completion but the sale fell through and she had tremendous problems arranging finance so she failed to complete and lost the 10% deposit.

DON’T LET THIS HAPPEN TO YOU! Please contact us as soon as you receive the auction particulars so we can check out the conditions, title, searches etc. We can normally of this for a fixed fee.

All of the above points to a necessity to have a solicitor involved in the process of buying a property at auction at the first available opportunity. It may be that you need to have your solicitor consider a number of auction packs before you are in a position to put in a successful bid, however the important thing is to have the confidence to place a successful bid in the knowledge that so far as possible all the legal risks have been dealt with to your satisfaction beforehand.

Have you got a Power of Attorney?

Have you got a Power of Attorney?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is potentially a very important document. It enables you to give a legal authority to look after your affairs when you no longer can.

“One in three over-65s die with dementia”

It can give you great peace of mind knowing that someone can manage your financial affairs and pay important bills, and make decisions on your behalf.

If you lose mental capacity and do not have a LPA someone would need to apply to court to be appointed as a Deputy. This is a long and expensive process and best avoided.

There are two types of LPA. One to look after your Financial and Property affairs and the other your Health and Welfare.

You can choose whether a LPA comes into force immediately after you have signed it, or when you have lost mental capacity. You can appoint family members and/or trusted friends and specify how they should work together to make decisions on your behalf.

The important thing to remember is that you cannot create a LPA when you have lost mental capacity. Therefore it is always best to have one in place just in case. If you are interested in making a LPA please contact one of our specialist lawyers and they will be happy to talk through the process with you.

Family Law – developments for 2016

As we start a New Year, the Head of Kiteleys Family Team, Colin Mitchell, considers what changes might come into effect during 2016 which affect families:

Support for relationships in difficulty – on 11 January 2016, the Prime Minister David Cameron, announced that Government funding for relationship support will be doubled, for organisations like Relate, Marriage Care and One Plus One, to help couples stay together

Life Chances Strategy – at the same speech on 11 January 2016, David Cameron also announced a plan for significantly expanding parenting provision, to include the introduction of a voucher scheme for parenting classes, via the Troubled Families Initiative which was launched in 2012.

No Fault Divorce Bill – on 22 January 2016, the second reading of this new law will take place in the House of Commons, in attempt to change the law which has been in place for over the past forty years.

Currently, the Matrimonial Causes Act 1973 requires that anyone applying for a divorce in England and Wales (“the Petitioner”), must prove one or more of five facts, three of which are based on their spouses fault; adultery, unreasonable behaviour or desertion for two years. To avoid the need to rely on one of these fault based facts, the Petitioner must wait until they have been separated at least two years before apply for divorce.

These current legal requirements have long been considered to be unsatisfactory by such family law organisations such as Resolution and many family Court Judges.

Therefore, this proposed new legislation was introduced to Parliament by Richard Bacon MP in October 2015 and this is currently making its way through the legal process to potentially become law 2016. This new law could for the very first time allow a divorcing couple to submit a “joint Petition” based merely on the fact that their marriage has “broken down irretrievably” without either needing to blame the other for their marital breakdown.

However, another significant proposed change is that once the first stage of divorce has been achieved with the grant of “Decree Nisi”, the divorce cannot be finalised with the grant of “Decree Absolute” until twelve months later, whereas the current legal procedure requires a wait of only six weeks.

Calculation of financial needs on divorce – long overdue progress could be made during 2016 by the Ministry of Justice, to build on the Law Commission’s 2014 recommendation that there be a method for divorcing couples to calculate how best to distribute their available assets to meet their financial needs. The Family Justice Council is also planning to produce guidance on how Family Court Lawyers consider the calculation of “needs”.

Non disclosure in matrimonial financial proceedings – following from the Supreme Court decisions in the cases of Sharland and Gohil (October 2015), during 2016 we could see further cases of couples who divorced some years ago, but who now return to the Family Court to reconsider their financial decisions if evidence has subsequently come to light that one spouse was concealing significant wealth at the time that the original Financial Court Order was made.

Improvements in the Family Court Service? – from April 2015, the route for a routine divorce in the South West of England was centralised at a Regional Divorce Centre in Southampton. This has resulted in significant delays with the time taken by the Family Court to process divorce papers, sometimes taking months rather than weeks. During 2016, the new South West Regional Divorce Centre will hopefully become more efficient at dealing with the large volume of divorce documents and so these delays will decrease.

If you have any questions concerning any family problem, make contact with any Kiteleys Office, to arrange an initial free telephone assessment with one of our specialist Family Law Solicitors.

How complex do leases have to be?

During an average month I may see more than half a dozen different styles and forms of commercial leases pass across my desk.   The type of property and its location mainly dictates the type of lease. I may see anything from a lease for a small lock-up shop on Poole High Street to a factory unit on Upton Industrial Estate. I could be dealing with a major new office development in Swansea or part of a shopping centre in central London.

The quality of modern drafting is generally more consistent than its equivalent of a few decades ago, primarily due to the ability to reprint and re-create leases at the click of a mouse, but this ease of production has its downsides. Too often now I can be presented with a draft lease for a 3-year lease of a small unit based on a lease the landlord’s solicitor had used for a major new development, with all its minutely detailed provisions relating to service charges and approval for subletting. Whilst leaving no stone unturned, such leases are usually overkill, as they can run on for 80 pages or more, and invariably end up costing the landlord and tenant more, as the solicitor is under no less duty to advise.

Landlord’s can often save time and money and have a tenant completing a new lease sooner by choosing a solicitor who will carefully prepare the first draft so as to be as straightforward as possible given the length of the term and the type of property, whilst ensuring that the key issues are addressed in the document.

Southern Health NHS Foundation Trust

Southern Heath NHS Foundation Trust is one of the country’s largest mental health trusts covering Hampshire, Dorset, Wiltshire, Oxfordshire and Buckinghamshire. Unfortunately, the Trust has attracted adverse attention recently following an investigation commissioned by NHS England. The report was ordered in 2013 after the death of an 18 year old patient who drowned in a bath following an epileptic seizure whilst admitted to the care of Southern Health NHS Foundation Trust.

The report sadly concluded that deaths of mental heath and learning-disability patients who were under the care of Southern Health NHS Foundation Trust were not properly examined. This finding has been confirmed by Southern Health NHS Foundation Trust who ‘fully accept’ that their quality of processes for investigating and reporting a death needed to be better. It accepted that its process ‘had not always been up to the high standards that our patients, their families and carers deserve’.

The report revealed that between April 2011 and March 2015 10,306 patients with mental illness and leaning-disabilities had died under the care of Southern Health NHS Foundation Trust. 1,454 of the deaths occurred unexpectedly and only 13% of these deaths were investigated.   The investigations that were carried out were found to be of poor quality and carried out late.   The reports failed to improve the Trust’s performance and there was often very little effort on behalf of Southern Health NHS Foundation Trust to engage with the families of the deceased. In fact, in nearly two-thirds of the investigations, there was no family involvement at all.

The report also confirmed that the average age at death of those with learning difficulties being cared for by Southern Health NHS Foundation Trust was 56 – over 7 years younger than the national average.

When commenting on the report, Norman Lamb – Former Care Minister, said that the findings were shocking and ‘that you end up with the sense that these lives are regarded as somehow slightly less important than others’.

For further details of the report please see http://www.bbc.co.uk/news/health-35051845

EU Regulation 650/2012 – Are you protected?

EU Regulation 650/2012 (also known as Brussels IV) is designed to harmonise succession law across the EU. Although the UK didn’t opt in to this Regulation it still applies to clients who have assets in EU states who die after 17th August 2015. It changed the law in that now, if you own overseas property which you live in or intend to live in one day and want it to devolve under English law, you must expressly state so in your English Will. You can elect for your national law to apply. If you have more than one nationality you can choose which one is to apply to your assets.

If you do not make an election the law applicable to your EU assets will be the law of the state in which you had your habitual residence at the time of your death. Habitual residence involves a right to be in the country and intending to stay in that country. This is unless at your death you were more closely associated with another state.

UK nationals can protect themselves by making an election that succession to their assets situated in EU states should be via English law. It is advisable to do this wherever they are currently living. Though, it must be noted that the usual local succession taxes will continue to apply and must be considered as part of estate planning. It is also advisable for a testator to make a separate Will in accordance with the law of the EU member state where the property is situated and to provide in that will that English law is chosen as the law of succession.

If you have a foreign property please make an appointment with one of our specialist lawyers and they will be happy to talk through the issues with you.

Residential Property: Boundaries and boundary disputes

When you purchase a property the last thing you want to inherit is a boundary dispute. This is why it is so important for you to check any plan you receive very carefully to make sure it accurately reflects the property you believe you are buying.

As solicitors we do not physically inspect the property but rely upon our you/your surveyor to draw to our attention any discrepancies. You should investigate the precise boundaries of properties carefully, in particular where there is some obvious inconsistency between the physical aspects of the land and the wording of, or plan in, a document.

If a dispute arises between neighbours about the boundary between their properties the legal documents will be looked at to determine boundary ownership. However, the boundaries between properties can differ from those described in the title documents or lease. The most common are where they have been changed by agreement or by encroachment (occupation without permission).

Sometimes where the deeds seem clear, on closer examination there may be uncertainties. If you think that the boundaries are not defined in the title document or lease, or that the boundaries have been changed by agreement or encroachment, you will probably need to get legal advice from a solicitor and/or a surveyor.

Even where the boundary appears clearly defined on the Land Registry title plan, the red edging on that plan is ‘indicative only’ and as Land Registry plans are described as accurate ‘to within a metre either side’, there is substantial room for disagreement.

Boundary disputes can be costly and time consuming and generally create a lot of unhappiness and mistrust for all parties involved. They can quite often escalate beyond all proportion to the original dispute. Any disputes would need to be disclosed to any future buyer of the property and this could impact upon the value of your home. Often it can far better in terms of time and expense to reach a compromise, however this should not be attempted without an opinion from a solicitor and surveyor as to the likely true position should the matter reach the Courts.

There are of course steps you can take to make disputes far less likely, or prevent them escalating. Thoroughly check any plans and flag up any issues to both your solicitor and the surveyor and deal with any encroaching fences with your neighbours at the point when the footings are going in, rather than when the fence is already erected and has been standing for six years or more!

Kiteleys’ property team can help you by reporting on any likely disputes at the time of purchase and our dispute resolution team can give advice to homeowners on progressing a claim in court if matters cannot be resolved amicably with your neighbour.

Tenancy Deposits – to protect or not?

As most landlords are aware, since the 6th April 2007 all security deposits taken by landlords must be protected in one of the approved Government Tenancy Deposit Schemes [TDP]. Landlords have always had a choice of schemes to which they can safeguard each deposit that must then be followed up with the serving of a statutory notice [Section 123], which must be served upon the Tenant no later than 30 days of receiving the deposit.

The question arises though; must all deposits be in monetary form and must all deposits be protected? The answer is surprisingly no, since the latest legislation amendments of April 2015, landlords can now accept actual valuable items instead of money. Examples include a car, a piece of furniture or even jewellery, such physical assets do not need to be protected by any such scheme therefore giving an “opt out” option to a number of landlords who find the deposit schemes ineffective and time consuming.

Other types of deposits that do not come under the TDP legislation are deposits from lodgers, certain types of live-in landlords and company lets. As the landlords are not obliged to take deposits in these circumstances some get to avoid the rules altogether but landlords do need to be mindful of the fact that the TPD legislation only applies to Assured Shorthold Tenancies [AST].

The schemes are free and not over complex but still landlords are apprehensive to get involved as in some schemes require the full amount of the deposit must be protected where as other schemes which are insurance based, require the landlord to pay an ongoing insurance premium. Furthermore, at the end of the tenancy the landlord has the option of returning the full amount of the deposit or part sum depending on whether any dispute arises. If dispute does arise then usually an arbitrator will decide upon the validity of the issues and pays out accordingly.

To summarise, since the introduction of the TDP Schemes in 2007 there has been much confusion and a genuine lack of knowledge in regard to the legal requirements which has left many landlords in trouble. The rules are very stringent so if landlords do not want to get into strife, the following condensed summary is a useful breakdown of the current position that landlords of AST’s find themselves in since the latest amendments of April 2015;

• Deposits do not have to take monetary form, physical items can be used as a deposit that do not come under the TDP and therefore do not need to be protected;

• Once a deposit is received it must be deposited within 30 days and notice of the prescribed information [s123 Notice] must be served on the tenants;

• Proof of service is invaluable as without it any attempt of the Eviction via the Section 21 route will undoubtedly fail;

• Detailed inventory checks and reports must be carried out by independent, authorised third parties as without such documentation a landlord will not succeed in any claim for damage against a deposit;

Failure to comply with any of the rules will not only prohibit a landlord from serving a section 21 and regaining possession but will also result in a hefty fine that could be three times as much as the deposit.