FAQ: Ask An Expert

FAQ: Ask An Expert

Commercial landlords – does your property comply?

2021 is well underway, and we are all no doubt hoping for a better and brighter year ahead. As the years fly by, 2018 seems now like a lifetime ago. However, as some of you may recall, it was the year that phase 1 of the Minimum Energy Efficiency Standards (“MEES”) kicked in.

As a brief reminder, from 1st April 2018, it became a legal requirement on the grant of a new commercial lease, that there was a valid Energy Performance Certificate (“EPC”) in existence, showing an energy rating of at least an E or above. If there was not a valid, in-date EPC with at least this minimum requirement when a new commercial lease was granted, there could potentially be hefty financial fines for the landlord (in the tens of thousands).

This is of course something all landlords should look to avoid and ensure that all EPC requirements are met prior to any new letting. If there is no EPC available, a draft EPC should be commissioned prior to the grant of a new lease. If the rating comes in below an E rating, then steps will need to be taken to improve the property’s rating. The measures required will vary case by case.

For experienced landlords the above is unlikely to be surprising news, as this has been an issue to address for almost 3 years now. However, what landlords now need to be aware of is that from 1st April 2023, it will be a legal requirement for existing commercial leases (i.e. those that are continuing at this date) to have a valid EPC with at least an E rating.

Now this may come as a shock to some, and others may feel that this is still a couple of years away, and can be dealt with nearer the time. However, depending on the extent of a landlord’s property portfolio, there could a lot of work to be done to ensure that all their commercial properties let at 1st April 2023 comply with the MEES regulations. Again, to continue to let a property after this date with an EPC below an E rating is a breach of the regulations, and again the fines can be very large.

Taking the above into account, my suggestion to all landlord’s is not to kick this issue into the long grass. It will be for the best to get on top of this sooner, get EPC’s commissioned for your property portfolio and review what needs to be done.

As always, there are certain exceptions to the requirements (such as if the property has no central heating, the property is a listed building etc.) however, I recommend that you speak with your surveyor. For some exemptions, e.g. listed buildings, have to be registered.

For commercial properties which are currently let, landlords will need to review the current lease and establish whose responsibility it is to fulfil these requirements, commission the EPC and, if necessary, carry out or pay for any improvements.

The MEES also apply to disposals and acquisitions of commercial properties, and, therefore, it is in landlords’ best interests to ensure that properties meet at least the minimum requirements. Not doing so may impact properties’ values.

MEES also applies to residential properties, however the implications, timeframes etc., relating to residential properties are not discussed in this article.

Should you have any queries or concerns on the MEES regulations and wish to get ahead of the game, feel free to get in touch with me or another member of Coole Bevis’s Commercial Property team. We are all happy to discuss your position and the next steps to take.

What do I do about all the rubbish and items the sellers have left behind?

I have just completed on my house purchase and having collected the keys from the agents I arrived at the house to find that the sellers had left lots of things behind. Rubbish and tools in the garage, old bikes, pots and table and chairs in the garden and bags of clothes in the loft together with broken old electrical equipment. What can I do?

Most contracts for the sale of property provide that the seller sells with vacant possession. This means that there should be no occupiers but also that the property is cleared of everything other than those items which the sellers stated will be left. Check the Fittings and Contents form that is usually provided when a property is sold to see what the sellers indicated they would leave. Contact your solicitor to check the position and to ask that the sellers remove the items. You could find out the cost of the removal and ask via the seller’s solicitors that they consent to you removing the items and that they will pay the cost.

Most sellers do provide vacant possession and leave their properties clean and tidy. If the sellers do not remove the unwanted items and do not agree that you can either, you could consider an action against them in the small claims court for breach of contract, but you could be throwing good money after bad. You may have insurance that covers legal disputes and that is worth checking.

If you are worried that a seller may leave rubbish, check before completion takes place either before or on the day and ask your solicitor not to send the completion money until you are satisfied that all the unwanted items will be removed.

Can I make a Will virtually?

Yes and no! Ultimately there’s no substitute for face to face contact but it’s certainly possible to make a Will during the Covid restrictions.

Throughout the pandemic we have been preparing Wills for clients, having taken their instructions by phone, email or zoom. Much of this can be done virtually once everyone has sorted their technology out.

Signing can, however, prove tricky during lockdown – especially for those shielding.

The rules for signing Wills go back to 1837 – a will must be in writing, signed by the person making it (the testator) in the presence of two witnesses, both present at the same time, in the line of sight of each other. Lockdown turned these requirements into a challenge – largely resolved by signing across thresholds, through open windows, on car bonnets etc.

  • Recognising the challenges faced by those shielding or isolating, new legislation was introduced as a temporary measure, allowing Wills to be signed remotely – so that witnesses could be virtually present. This has given testators more options but has bought its own risks and challenges:
  • The will must still be in writing.
  • The witnesses must still see the testator signing the will. A head and shoulders view is not good enough.
  • The will must still have ‘wet’ signatures of all parties.
  • The will must be signed in real-time. Sending witnesses a pre-recorded video won’t meet the requirements.
  • All parties must still sign the same document. So even once it is signed, the will still needs to get from the testator to the witnesses. What if the will is lost in the post? What if the testator dies before the witness signed it?
  • The testator must also see the witnesses sign the will – requiring another virtual meeting.
  • If someone needs to leave the house to post the will or someone comes to the house to collect it, surely the will could be witnessed in the usual way.
  • It doesn’t protect against someone putting pressure on the testator – there could be someone behind the camera without anyone other than the testator knowing and frequently the most vulnerable need someone there to assist them with the technology in any event.

The procedures must be carefully followed and failure to do so could result in the will being challenged and/or invalid. The government has made it very clear that this is a temporary measure and should only be used as a last resort.

Anyone wishing to make a will should still try to arrange physical witnessing where it is safe to do so. If video witnessing is the only way forward, legal advice should be taken, the entire process recorded and retained and the will signed and witnessed in the usual way once the testator is able to do so.

Keep calm and separate

If you have decided in 2021, following the difficult year we all had in 2020, to separate from your partner then a key element of ensuring that separation takes place smoothly and with a minimum of difficulty will be to resolve the financial issues arising on the breakdown of your relationship.

In the vast majority of divorces, it is the financial split that makes matters so acrimonious. However, it does not have to be that way. A good family lawyer will ensure that you have all of the various process options put before you so that you can decide which option will work best for you. Generally speaking, the most amicable, swiftest and cost effective process option to achieve a fair financial settlement is to attend mediation. This is a process where you and your ex-partner, with the help of an independent third party, work through the various financial issues to agree/decide what would be appropriate in all the circumstances.

There are other options including: direct discussions, a collaborative approach, and the more traditional route involving potentially a formal application to the court. One of the key decisions in your separation will be to identify which process option is most likely to lead to a satisfactory outcome in the shortest possible timeframe, and ideally with the least possible unpleasantness.

Charles Tennant offers a free initial 30-minute interview with all new clients to consider their options and identify the best way forwards for them and their family.

Can I keep a cat or dog in my flat?

Check the terms of the lease to see if there is a restriction about keeping pets. The terms of a lease will often state that flat owners cannot keep pets. Sometimes, the lease terms will say that a pet can be kept but only with the prior permission of the freeholder. However, that consent can be revoked and the permission is likely to make this clear. If there is no clause about keeping pets, most leases contain clauses that flat owners cannot cause a nuisance. A barking dog may be a nuisance to other flat owners who may ask the freeholder to take action and most leases will allow freeholders to revoke consent. If a problem arises, please speak to your neighbours and the freeholder to see how it can be resolved.

An assistance dog is no guarantee that you will be allowed to keep it in a flat.

If you are buying a property, get the freeholder’s consent to keeping the pet before you commit to the purchase. If there is a clause in the lease that prevents keeping pets or no clause at all, consider asking the freeholder to agree to vary the terms of the lease to allow pets to be kept.

We have agreed to split up. How long does it take to get a divorce?

The vast majority of divorces proceed on what is known as an undefended basis and essentially this means that notwithstanding their differences both parties accept the marriage has irretrievably broken down.

Provided the divorce proceeds on an undefended basis then it will either be dealt with on paper or as part of the new online divorce process (which is not yet entirely online). All divorces in England and Wales are now dealt with at 1 of 4 regional divorce centres. The regional divorce centre for the South-East of England is Bury St. Edmunds.

Whilst, one can still use the existing paper process that is a slow one because of how busy the Bury St. Edmunds divorce centre is and typically even a straight forward undefended divorce could take between 6 and 12 months to conclude. Much depends on the backlog at Bury St. Edmunds which undoubtedly has been worsened by the Covid-19 pandemic.

Positively, the new online divorce process appears anecdotally to be far swifter and this may in part be as a result of the fact that it is administered at one of the other less busy regional divorce centres. Recent experience is that a divorce can be obtained within 4 and 6 months, so considerably faster.

Finally, it is important to be aware that in many divorces it may not be appropriate to finalise the divorce until any financial issues have been concluded.

COVID-19: What do I need to know as an employer or employee?

JOB RETENTION SCHEME

The Government has decided to extend the Coronavirus Job Retention Scheme [CJRS] until 31 March 2021.

What do I receive as an employee?

Under the extended scheme, which must be by way of agreement between the employer and employee, an employee will receive 80% of their current salary for hours not worked, up to a maximum of £2,500.

What can I do as an employer?

An employer will continue to have the option and flexibility to bring furloughed employees back to work on a part time basis or furlough them full-time. The only costs [other than administrative and practical ones for the employer] will be National Insurance and employer pension contributions.

How does an employee qualify?

To be eligible an employee must be on an employer’s PAYE payroll by 23:59 30th October 2020. This means a Real Time Information (RTI) submission notifying payment for that employee to HMRC must have been made on or before 30th October 2020.

What if an employee is working their notice?

It is to be noted that the CJRS will not operate for an employee who is serving notice terminating their employment. It is a true ‘job retention scheme’ designed to help both employers and employees in the hope that it will enable them to maintain their working relationship.

HOLIDAY ACCRUAL DURING FURLOUGH

Employees will continue to accrue annual leave during furlough. This is unsurprising as it follows the Working Time Regulations 1998.

Can I as an employee still take holiday?

The employee is entitled to take holiday during the period of the furlough [subject to contractual terms/agreement with their employer] and is also entitled to payment for accrued but untaken holiday when their employment ends.

What as an employee will I be paid?

It is also worth pointing out that such pay would appear to be based on the full contractual rate i.e. the employee’s contractual pay and not the pay which the employer and employee may have agreed to be paid during the period of furlough.

What does this mean for the employer?

Also, HMRC are unlikely to reimburse the full contractual pay but, only 80% [or £2500 per month if lower] meaning that the employer will need to make up the shortfall.

SELF-ISOLATION

Can an employer ask the employee to work?

For those employers reading this it is an offence if an employer knowingly permits a worker, who should be self-isolating, to attend any place other than where the individual is self-isolating. So, an employer cannot ask the individual to visit a client, the office, etc. However, they can work from home.

What are an employee’s obligations?

For those employees reading this the employee must tell their employer if they should be self-isolating, and if not then the employee is guilty of a separate offence.

HEALTH AND SAFETY DETRIMENTS

Can an employee leave the workplace or refuse to return?

Employees have protection against detriment or dismissal in the event that their employer required or sought to put them in a position of danger which the employee reasonably believed to be serious and imminent and as a result the employee leaves the workplace and/or refuses or refused to return to work.

What must the employer consider?

This is of particular relevance in the current pandemic where employees may be placed in difficult situations and/or where an employer, possibly unaware of the risks, asks or expects the employee to undertake certain tasks, work in a particular place or location, or do something which the employee believes places him or her in serious and imminent danger.
_______________________________
These are only a few examples of what have become live issues over the past few weeks and months for both employers and employees. There will probably be more updates on the impact of the pandemic over the next few weeks. Meanwhile should you wish to understand how it may affect or has affected you, or your business, please contact our Nigel Targett, partner who deals with employment law issues.

Do we have to go to court for a divorce?

A divorce in the jurisdiction of England and Wales is a formal set of legal proceedings and involves an application to the Family court, in the form of a divorce petition.

The vast majority of divorces proceed on what is known as an undefended basis and essentially this means that notwithstanding their differences both parties accept the marriage has irretrievably broken down.

Provided the divorce proceeds on an undefended basis then it will either be dealt with on paper or as part of the new online divorce process (which is not yet entirely online). All divorces in England and Wales are now dealt with at 1 of 4 regional divorce centres. The regional divorce centre for the South-East of England is Bury St. Edmunds.

In the ordinary course of event, there are no court hearings within an undefended divorce. In practice, it is therefore very unlikely that you would have to physically attend a court hearing in respect of your divorce. Typically, the process takes place entirely on paper or online and notifications are received from the court confirming the progress of the divorce either by post or email.

I have never worked but looked after the house/kids. How much am I entitled to when we divorce?

In the event of a divorce, both parties are entitled to pursue financial claims arising from the breakdown of their marriage. The court has the power to make various financial orders within the context of a divorce including: lump sum orders, property adjustment orders, pensions order and orders for periodical payments (often called maintenance).

The court is required to apply the statutory framework and specifically s.25 of the Matrimonial Causes Act 1973 which sets out the factors the court must consider. The first consideration is the welfare of any children of the family. However, this is not paramount over the following other factors which include: a) the income, earning capacity, property and other financial resources of the parties; b) the needs, obligations and responsibilities of the parties; c) the standard of living of the parties; d) the age of the parties and the duration of the marriage; e) any physical or mental disability of the parties; f) the parties’ contributions; and g) the conduct of the parties. It is worth noting that the last 2 factors often carry the least weight.

It is important to appreciate that each case turns its own facts and there are no absolute black and white or right and wrong answers. Fundamentally, a Family court judge has a great deal of discretion. Essentially, what this means is that the outcome of the matter is not defined by whether one person worked and the other cared for the children.

Can I have access to the property I am buying once I have exchanged contracts?

Yes – if the seller agrees otherwise there is no right to enter before completion.

A seller may allow a buyer to have access to a property once contracts have exchanged and before completion takes place for carrying out non-structural work such as cleaning, decorating or measuring. If structural changes are involved a seller will usually decline a request for access.

Please ask your solicitor as soon as possible if you would like access. If the seller agrees, you usually have to sign a document promising not to take up occupation and only carrying out the permitted works. You will need to make sure you have appropriate insurance too in case of any damage caused and expect to take over responsibility for payment of utilities from the date of access.

What implications does Brexit have for separating couples?

Charles Tennant, a partner in the Family team at Coole Bevis Solicitors explains the significance of the deadline for the Brexit transition period, which ends on December 31.

As matters currently stand, EU law states that divorces and associated family issues – such as arrangements for children – filed and finalised in a member state are recognised in other European countries.

However, this will no longer apply to family law proceedings in England and Wales after the end of this year, creating a potentially complex battle if the separating couple ultimately live in different countries.

This change could have substantial implications for financial claims and the arrangements for the care of children including where they will live in the future.

Charles said: “It’s a very important time in family law and it’s crucial that people are aware of these impending changes.”

“If any individual is considering a divorce or proceedings for the arrangements for their children, they should seek legal advice now and ideally issue those proceedings before the end of the year.”

“Failure to do so could lead to unnecessary confusion or delay. For example, if one person involved in the proceedings is living in the UK and the other is in an EU country, it is currently unclear how it will be decided where cases are heard and how a verdict will be recognised in another country.”

“Ideally, individuals should take steps now to eliminate the risk of future uncertainty.”

Until the end of this year, couples commencing divorce proceedings will be able to select which country they are issued in, with a law known as Brussels II ensuring the outcome will be recognised across Europe.

What happens if my ex-partner says the children have to stay with them during the Covid19 restrictions?

Co-parenting during COVID-19

During these uncertain times, we have received an increase in enquiries about children moving between two homes during the restrictions. So far as possible, any existing arrangement should continue to be followed whilst taking into account current Government guidelines. Guidance issued by Sir Andrew MacFarlane, the President of the Family Division in March 2020 allows for a parent to temporarily vary the arrangements set out in a court order in circumstances where following the terms of an Order would be against health advice. The guidance goes on to make it clear that if one parent makes a decision which the other parent does not agree with, this decision can be examined at a future court hearing to check whether it was a sensible and reasonable decision to make in the circumstances of the case. Continuity is in the best interests of the child, therefore if safe and possible, existing arrangements should be followed. If the usual arrangements can’t take place for a period of time, you should consider alternatives such as FaceTime or WhatsApp video calls, Zoom or similar, if video is not possible, contact should be maintained by telephone. Remember, the government guidance states “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” So where possible it should be followed, however the decision must be made jointly between the parents and it is therefore important to communicate with one another and agree a solution which is in the best interests of the child. It is advisable to record any change in the arrangements in writing this can be by text or e-mail.

What is Family Law Mediation?

A mediator’s role is to assist opposing sides to discuss, listen and agree a way forward to settle their dispute.  Family Law mediators are highly trained specialists who can help you jointly agree the best possible solutions for your family, including the children. Normally the mediator starts by meeting each party individually. You can explain the issues, any specific worries and your desired outcomes.  Normally this is followed by joint sessions although, on occasions, we may suggest that the parties are in separate rooms. This is called shuttle mediation. Mediation can be a very effective alternative to Court.  In most cases it is less stressful and encourages better communication between the parties. It is often particularly helpful when seeking practical ways to manage the needs of any children. It also costs less than going to Court.  Any consequent parenting or financial agreement can be made legally binding with a consent order or child arrangement order. The Courts encourage mediation so if you decide that you do want to file proceedings, you will need to show that you have considered mediation first. Please contact our Family Law team for more information…

Contact us for more information:

Fill out my online form.

What is a commercial lease?

At its most basic, a commercial lease is a legally binding contract made between a property owner (a landlord) and an occupier (a tenant). The lease gives the tenant the right to use the property for its business or commercial activities for a set period of time. In return for this, the tenant will pay money to the landlord. Importantly, the lease will also outline the rights and responsibilities of both the landlord and the tenant throughout the length of the lease.

Get the details right from the start.

Know what it is you are looking at. Your ideal business premises may be freehold, leasehold, or only available on a short term licence. From the get go you should know: –

  • the full extent of the property you want (i.e. is it a whole floor(s), part of a floor, or a whole building);
  • what is the property used for (e.g. shop, office, restaurant, etc.);
  • who are all the parties involved (i.e. full names & addresses (see below)).

What am I agreeing to?

The property you want isn’t for sale. However, the owner will let it to you. When you take on a leasehold property, the landlord (or its agent) will discuss and agree with you the main terms of the proposed lease. Typically, these heads of terms would include the following: –

  • the names and addresses for all of the parties involved (Landlord, Landlord’s Agents, Landlord’s Solicitors, Tenant, Tenant’s Agent, Tenant’s Solicitors, Tenant’s Guarantor(s) (if any), and Management Company (if any));
  • a description of the property being let to you, including a plan;
  • how long the lease will last (i.e. the Term);
  • what the rent will be when the lease starts and whether the rent will be reviewed during the Term;
  • whether you are able to end the lease early (i.e. a Break Option);
  • whether there is a payment for the lease (i.e. a Premium);
  • do you have to pay a rent deposit to the landlord to hold during the Term;
  • is the lease protected under the Landlord and Tenant Act 1954;
  • is there a service charge, in addition to the rent, and what are the services provided;
  • what you must contribute towards the landlord’s insurance;
  • what can the property be used for;
  • how you can transfer your lease (i.e. Assignment);
  • can you let the property yourself (i.e. Underlease);
  • to what standard you must repair and maintain the property;
  • what alterations to the property can you make;
  • will you need to do your own fit out works and whether you have a rent free period to do these in;
  • will the landlord be doing any works before the lease starts;
  • costs (typically, each party will be responsible for its own legal costs and third party expenses);
  • other conditions (e.g. confidentiality agreement and/or exclusivity agreement)

Coole Bevis’s commercial property team will be happy to guide you when you are going through these discussions with the Landlord or its agents. We can also review the heads of terms before being finalised.

As my solicitor, what will you do for me?

When you have finalised the heads of terms, the parties’ solicitors become involved. As the tenant’s solicitors, we would usually carry out the usual due diligence. This includes investigating the landlord’s freehold title, raising enquiries, commissioning property searches and then reporting to you.

The landlord’s solicitor drafts the lease (and rent deposit deed (if any)). As your solicitors, we negotiate and review the draft lease and any other documents. Once in an agreed form, we will report to you in readiness for completion.

We will also tell you if any Stamp Duty Land Tax (‘SDLT’) is payable on the lease and, if necessary, point you in the direction of specialist tax advice before you are committed to your lease.

What is the timescale?

Depending on the property, depending on the number of parties involved, depending on how quickly others deal with their solicitors, depending on a whole host of unknowns, the whole process from heads of terms to getting the keys from the landlord’s agents may take longer than you anticipate. You should therefore allow plenty of time in your business plan for when you can start operating your business.

Do I need other professional advice?

As your solicitors, we do not assess the value nor do we inspect the physical state and condition of your target property. For this you will need a surveyor and you are recommended to have one. If the heads of terms state you must keep the property in full repair, you must have the property surveyed as soon as possible. If you have, as you should, negotiated a limited repairing obligation, then it is eminently sensible to have what is known as a photographic schedule of condition attached to the lease. Importantly, the schedule will be attached to the lease to record the condition of the property as at the start of the lease. Typically, your obligation to repair will be limited so that you are not obliged to return the property to the landlord in any better condition. In both cases, it is your surveyor who prepares these and can give you a guide on the property’s value.

If you are contemplating making any alterations (including your fit out works), you should get all the necessary work detailed and liaise with us and your surveyors as soon as possible. The landlord will want to see these details before completing the lease. If what you want to do is substantial, the lease will require you to get the landlord’s permission before you can start. This is known as a Licence to Alter. Your surveyor will be able to tell you whether the works are feasible before you are committed by the lease of the target property.

We are used to working closely with all members of your professional team.

What happens when I complete my lease and after?

Once all the documents are agreed & signed by every party, and all your queries have been answered by your advisors, you will be able to agree a completion date with the landlord. We will tell you how much you have to pay on completion, including any advance rent (less any agreed rent free period), contribution to the landlord’s insurance, service charge (if any), third party expenses (including SDLT), and our agreed fees as your solicitor.

On the day of completion, you are given the keys and can move in. Following completion, we will pay any SDLT due on your behalf and (if necessary) register the lease at the land registry. Once all the formalities are dealt with, we will send you your copies of all the documents involved for safe keeping.

Every member of Coole Bevis’s specialist commercial property team is very happy to work with you and advise on leases and any other commercial property transactions. You can contact us on 01273 323231 / 01403 21200 / 01903 213511 or info@coolebevisllp.com.

OUR OFFICES

Brighton Solicitors

Lanes End House,
15 Prince Albert Street,
Brighton BN1 1HY
t. +44 (0)1273 323231
f. +44 (0)1273 820350
info@coolebevisllp.com

Horsham Solicitors

14 Carfax,
Horsham,
West Sussex RH12 1DZ
t. +44 (0)1403 210200
f. +44 (0)1403 241275
info@coolebevisllp.com

Hove Solicitors

79 Church Road,
Hove,
East Sussex BN3 2BB
t. +44 (0)1273 722532
f. +44 (0)1273 326347
info@coolebevisllp.com

Worthing Solicitors

5 The Steyne,
Worthing,
West Sussex BN11 3DT
t. +44 (0)1903 213511
f. +44 (0)1903 237053
info@coolebevisllp.com