I rent an office space, but recently my landlord has really increased the rent. Can he do this?

Posted on February 28, 2011 by admin

Most commercial leases which last longer than ten years will include a ‘rent review’ clause. This gives the landlord an opportunity to adapt the rent to current market conditions, and is a sort of payback for the security given to the tenant by having a longer lease.

A rent review can either be ‘stepped’, so that the rent rises by a fixed and pre-arranged amount after a certain period of time (e.g. by £5,000 every five years), ‘turnover’, so that the rent is linked to the tenant’s income or turnover (obviously this is most applicable for retail tenants) or, most usually, ‘open market’. In any case, a rent review is usually ‘upwards-only’, which means that the rent will either stay the same or rise, but will never drop below the original rent. In the recent difficulties, these leases have been more flexible and landlords have been more willing to renegotiate.

Open market rent review involves a revaluation of the rent, based on what the rent would be if the property was re-let to a new tenant. Often, rent review can be heavily negotiated and give rise to much debate, since the tenant and landlord have completely opposite intentions! An independent surveyor or valuer is often called in to make the final decision if the parties cannot agree, and this independent body will consider not only the size and location of the property, but also the lease itself; if the lease is very restrictive, a new tenant might not be willing to pay as much than if the lease is really flexible. Therefore, the amount is based on local market figures, adapted to a list of ‘assumptions’ and ‘disregards’ to make the new rent a fair amount. There are plenty of usual assumptions, such as that the property is in a good condition, and disregards, such as goodwill and reputation generated by the tenant; however, there are also plenty of ones that landlords will try to sneak in to unfairly increase rent, such as that the rent is ‘best’ rent (meaning that the potential tenant is desperate to move in and so would pay more)or that the tenant can claim back its VAT on rent (which is not applicable to financial service providers like banks, and so they would expect a lower rent). Hopefully the solicitor who reviewed your lease when you originally agreed it was eagle-eyed!

Usually, you will pay the original rent until a decision is made. However, it is a good idea to plan ahead, as once your new rent is agreed you may need to make back-payments and if your rent has greatly increased this could be a large sum, due all at once.

If your lease is a residential one, there will very rarely be a rent review clause. This is because usually you are only paying a ‘nominal’ small ground rent, which would not vary by enough to make review worthwhile. In addition, the lease itself is usually longer and therefore has a larger capital value.

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I am not travelling to the UK, but will be passing through it on my journey to somewhere else. Do I need a visa?

Posted on February 22, 2011 by admin

Sometimes when you travel, you stop off in other countries along the way. This is known as ‘transiting’. Transiting is broken down into two different types; transiting airside, i.e. not leaving the airport lounge before you travel on, and transiting landside, which is any journey where you actually pass through immigration control and onto UK ‘soil’. Generally speaking, so long as you leave the UK within 48 hours you will be considered to be remaining ‘in transit’. However, you may st6ill need to apply for a visitor’s visa.

If you are travelling airside, i.e. remaining in the arrivals lounge and then leaving from the same airport, you will need to apply for a Direct Airside Transit Visa (DATV) if you are from a country which is not listed by the UK Border Agency as being covered by the DATV system, such as China, India, Pakistan and most African states (if you are not an EU or US national, it is best to check the list on the UK Border Agency’s website).

If you are travelling landside, i.e. passing through immigration, you will automatically need a visa if you are a ‘visa national’, for which the list is similar to the non-DATV list above.

In either case, you will not need a visa if;

-          You have a specified ‘travel document’, such as a one-way document or certificate of travel, which you can apply for through the Home Office. In order to obtain one of these documents, you must be legally resident in the UK and have permission to stay here for at least six months after the application date; or

-          You qualify under the DATV exemption for the ‘transit without visa’ concession. This is applicable if a) you are travelling by air, b) you will be leaving within 24 hours and your onward flight is already confirmed, c) you have all documentation required for the country you are travelling to (including a visa for that country if required) and one of the following applies; you are travelling to the USA, Australia, New Zealand or Canada, you have a residence card from one of those countries or the UK, or you have a diplomatic passport from a country such as India, Vietnam or China.

Should none of the exemptions apply, you will need to apply for a visitor’s visa. This allows you to stay in the UK for up to six months in most cases. The application process usually takes around four weeks, so be sure to apply well in advance of your journey.

In addition, you may need a visa if you are travelling through the ‘Common Travel Area’ made up of the UK, the Republic of Ireland, the Isle of Man and the Channel Islands. If you are travelling onto or from one of these places, you do not legally travel airside and therefore may need a visa because you will effectively be travelling landside. The exceptions above will apply, so if you are a visa national you need to ensure you have a visitor’s visa before you travel.

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My solicitor keeps referring to something called an ‘objective’ when we discuss our tactics for my claim. Surely he should just be concentrating on winning the case?

Posted on February 13, 2011 by admin

Although you may be focussed solely on success in litigation, your solicitor also has to consider a whole different set of guidelines. These are known as the Civil Procedure Rules (CPRs) and set out the correct legal procedures that should be followed during the case, from starting an action to working out costs. Your solicitor may also refer to the ‘White Book’; this is the nickname given to the book that contains the CPRs along with guidance, case studies and ‘Practice Directions’ (PDs) given by the courts so that the CPRs can be interpreted sensibly and practically. This ensures that all cases follow a straightforward, logical path that is just and fair to all parties, and therefore makes cases easier for the courts to manage.

The most important CPR is, sensibly enough, CPR 1, which is known as the ‘Overriding Objective’. This basically states that all parties, including the courts themselves, must ‘deal with cases justly’. This means that everything must be done to make sure the case is fair; for example:

-        Ensuring the parties are on an equal footing, so one is not just able to bully the other into submission;

-        Saving money, so that no-one is forced to settle for fear of bankruptcy;

-        Dealing with the case sensibly and proportionately; this means considering the value of the claim, the legal complexities, the importance of the case and the financial positions of both parties and keeping these considerations in mind when making orders;

-        Giving appropriate time and resources to the case to deal with the issues quickly and fairly.

The CPRs apply to everyone equally, and should be considered at all stages of the proceedings. In addition, as officers of the court, solicitors owe a duty to the courts to ensure that their clients behave themselves in line with the Overriding Objective.

As if this wasn’t enough, solicitors have another set of rules to adhere to. These are laid out by the Solicitor’s Regulatory Authority and are concerned mainly with professional conduct. This ensures that the legal profession as a whole is honest, trustworthy and responsible and that justice is always best served.  A solicitor must at all times;

-        Act with integrity, balanced with acting in the best interests of his client.

-        Be independent but not clouded by personal interest.

-        Provide a good standard of service, never acting in a way that would diminish confidence in the solicitor, or the profession as a whole.

There are therefore some situations where your solicitor will encourage you to give the other side or the court documents that weaken your case, inspire you to act and speak honestly and openly, and help you to help the court in deciding a case fairly. In extreme cases, such as where your solicitor is aware you have lied, destroyed documents or otherwise intentionally misled the court, they may refuse to continue to act for you in order to maintain these objectives.

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I have received a ‘Report on Title’ form my solicitors, but it just seems like a lot of legal jargon! What do I need to do with it?

Posted on February 8, 2011 by admin

A Report on Title (‘Report’) is basically a legal update, giving you all the information that your lawyers have discovered about the property. Often they will send you several during the course of the conveyancing so that you are aware of any major issues as soon as they arise.

A typical Report will try to explain everything in a simple manner, but will use lots of terminology that may be confusing at first. This is basically because there is often no other way to express a legal concept without using a convoluted turn of phrase! Below are some examples of likely tricky areas.

-          Title; this sets out how the property is held, whether you hold a lease or own it outright (subject of course to your mortgage). If you are buying a flat, it will be a ‘long lease’, which usually starts at 999 years and is therefore in real terms the same as owning the property. To find out about your title, your solicitor will have applied for Official Copies of the title register held by the Land Registry and these may be included in the Report. The only part of this you need to worry about is checking the property is the same as the one you expected, comparing what you know about the land against the Land Registry’s plan. Bear in mind that these plans are notoriously vague, so do not panic if the lines do not exactly match the fences; however, if there is an oddly-shaped boundary, or a large area missing that you thought was included, bring this up with your solicitor.

-          Restrictions; this will also usually be on the Official Copies and may refer to other leases or conveyances. If the restriction is important, the solicitor should have gained a copy of the older documents too. However, often these are old agreements between previous landowners which may no longer be relevant. If so, you can apply to the Land Registry to have them removed.

-          Condition; usually the property will be sold as seen. Check that any fixtures or fittings you were expecting to be included are specifically listed, otherwise you will not be entitled to them.

-          CPSEs or Property Information Forms; these are questions and answers given by the seller’s solicitors. Check that there is nothing obvious missing, such as structural changes that your solicitor may not be aware of, as they will not have physically visited the property.

-          Local Authority searches; this includes drainage, roads etc. Your solicitor will be on the lookout for anything unexpected, but these are usually very straightforward if you are buying in a town or city.

-          Environment/Survey; these are again usually straightforward. Should there be a need for any further information your solicitor will inform you, as these investigations can be both lengthy and expensive.

Don’t be overwhelmed by the jargon, but pick out the important points in each section to make sure you understand. Always ask your solicitor if you need any more clarification.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on 01752 309090.

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I want to become a British citizen. What do I need to do?

Posted on January 31, 2011 by admin

Only British citizens (and some other British subjects with qualifying connections e.g. a parent or spouse) have the automatic right to live and work in the UK. Whether you are already a British citizen is determined through a straightforward application of the British Nationality Act 1981, and relates to your date and place of birth and descent. If you were born in the UK before 1 January 1981, you are most likely a British citizen. If your date of birth is after 1 January 1981, you are only a British citizen if at the time of your birth one of your parents was either a British citizen themselves or settled in the UK. There are other rules relating to children born in the EU or Commonwealth countries, but generally speaking you need to have a parent with British citizenship themselves.

All those who are over 18, have lived in the UK for more than five years (or three if married to a British citizen) can apply to be ‘naturalised’ as British citizens. You will need to prove that:

-        You are of sound mind;

-        You have been resident in the UK for a specific proportion of the last five years (e.g. with no gaps of more than three months), and intend to remain in the UK;

-        You can communicate in English (or Welsh, or Gaelic) to an acceptable degree;

-        You are of ‘good character’ (i.e. no criminal record); and

-        You have sufficient knowledge of life in the UK, as evidenced by taking the required tests.

Applications can be made through the Nationality Checking Service run by your local council, a registered representative or simply made yourself. It is best to always have your application checked if you are sending it yourself, as the UK Border Agency (UK BA) will charge you for each application. Complex cases should always be made through representatives such as your solicitor.

If you believe that you have a claim to British nationality but have not got the required documents to apply for a British passport, you can apply for a nationality status certificate. If you are eligible to apply for a British passport for the first time, you will need to attend an interview with the Identity and Passport Service. The process may take up to six weeks, so it is important to arrange it well in advance.

If your application is refused, UK BA will give reasons for the refusal which you can appeal against if you feel the decision is incorrect. Appeals should always be made through a legal representative so that you can make sure you have the strongest possible case. Should you be found to have obtained your British nationality fraudulently, or the UK BA feel that it is not in the public interest that you retain your British nationality, they are entitled to remove that right. You may lose your right to remain in the UK and in serious cases may be removed from the UK.

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I am trying to get rid of a commercial tenant. Can I just ask them to leave as soon as possible?

Posted on January 29, 2011 by admin

Whether it’s because you’ve had a better offer or you’ve seen that other rents in the area are on the up, you may want to evict your old tenant and get a new one paying a higher premium. However, this will, as always, depend on the terms of your lease, which may allow you to give notice to the tenant to leave. It may also be subject to the rules on ‘security of tenure’.

For security of tenure to apply, the tenant must have occupied a set of premises for ‘the purposes of a business’ (i.e. a trade or profession, so a shop, warehouse or office would count) for over six months. If this is the case, once the lease comes to an end, the tenant is entitled to continue holding the premises under the same lease, which then carries on indefinitely.

Acting as the landlord wanting to end a tenancy with security of tenure, you must give written notice to the tenant in a particular form, know as a ‘Section 25 notice’. This must state a termination date (the date you want the tenant to actually leave), and must be served between six and twelve months before this date (so if your termination date was 25th December 2011, you would need to serve notice between 25th December 2010 and 25th June 2011). In addition, the termination date cannot be before the lease was due to run out anyway, although it can be the same day. The notice can either be ‘friendly’ (encouraging the tenant to apply for a new lease) or ‘hostile’ (trying to get the tenant to leave). Either way, the next step is to apply to court before the termination date; if the notice was friendly, the application will be for a new lease. If it was a hostile notice, the landlord will apply to bring the lease to an end and the tenant may challenge the application if he wishes to stay in the property. You then need to prove you have a reason to evict the tenant (for example, they haven’t been paying rent, or you want to occupy the building yourself). Depending on the reason, the court may grant the termination or order that you agree a new lease with the tenant. However, losing may not be the worst thing; the court will decide a new ‘suitable’ rent considering the previous rent and the market conditions, so you may get a higher rent anyway!

It is important to note that, if they wish, the landlord and tenant can ‘opt out’ of the rules on security of tenure. This must be done before the lease is agreed and before the tenant has signed anything. The landlord must serve written notice warning of their decision at least 14 days before the lease is due to be agreed and the tenant must respond accepting the notice. The 14-day period can be (and usually is) waived in favour of the tenant signing a legal declaration in front of an independent solicitor.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on  01752 309090.

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Someone is trying to bring a case against me but I don’t want it to reach the press; how can I stop information being released before the case goes to court?

Posted on January 29, 2011 by admin

We have all heard of ‘gagging orders’ (particularly in connection with errant footballers) and ‘super-injunctions’ against the press, but injunctions are essentially a useful way to stop someone doing something which no money will compensate; for example, spreading a rumour which is untrue and that, once released, will damage your reputation for ever. A good example of this was the injunction by Tony Blair made against the family’s former nanny, who was taking a story to the papers. Once released, even if proved false, the Blair’s public image could have been destroyed. The injunction stopped publication of the story until it could be proved true. However, an injunction can cover a number of different scenarios; to stop a company from dealing with its bank account (so it cannot transfer funds out of the UK to avoid paying a settlement), a party from destroying important documents or even an individual from continually trespassing on your land.

There are two different scenarios in which an injunction can be requested. First, it can be used as part of a court settlement (for example, if an opposing company has been ordered to stop making a certain product). Secondly, and more crucially, an interim injunction can be made before the case actually reaches court. This is a temporary measure that stops the other side before they can act, as the hearing may be several weeks or even months away. The injunction will then be reviewed at the hearing itself, and may be extended or made permanent.

In order to apply for an injunction, the crucial thing is speed. You need to catch the other side as soon as possible, but this means that applying for an injunction can be extremely expensive as your legal team work to put together a case. You can apply for an injunction without the other side knowing (if informing them may make them act quicker), but you and your lawyers are under an obligation to act fairly. This means giving the court all the information about the case so far, whether it helps or hinders your argument. You cannot withhold any facts, even if you know that they may mean that you lose the application! If you hide something, it may count against you later as you will be considered untrustworthy.

When considering whether to grant the injunction, the court will consider a ‘balance of convenience’. You must therefore prove to the judge that the damage potentially caused to you cannot be compensated by money (which you would receive at trial if you were successful), and that this outweighs any inconvenience or potential injustice to the other side. Granting an injunction is something that the court doesn’t take lightly and so you need to make this argument as strong as possible. If the court agrees with you, then the injunction will be granted until the case is heard at court (or until another meeting with both sides if you haven’t told the other party yet), and breaking an injunction carries severe penalties.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on  01752 309090.

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I have been told that my house is ‘unregistered’. What does this mean and is it a bad thing?

Posted on January 10, 2011 by admin

Although people have been able to voluntarily register their land for almost 100 years, the government made an order in 1990 that all purchases of land, and all leases of more than seven years, must be registered with the Land Registry (LR). Because of this, most land in England and Wales is now registered, although there are still some exceptions.

Prior to registration, land purchases were made by deed, which meant that once you owned your new home you (or your solicitor) would be presented with a bundle of aging documents dating back to when the land first changed hands. Selling land to new owners meant a complicated system of trailing past buyers and all agreements relating to the property through these papers, which could be incredibly time-consuming and therefore expensive. Nowadays, particularly with everything from the LR available online, the process is much more straightforward.

Basically speaking, registered land is better regulated because a map outlining what you own with your name on it, is held by the LR. This means that if anyone tries to buy part of, move boundaries over or squat on your land, you can be contacted to assert your right to that land, and any legal sales are made safe and secure through registering the new owners. It also means that you’re not necessarily bound by historic agreements made before you bought the property, which may go back hundreds of years. Instead, a series of ‘registers’ detail who holds the property, what they are legally allowed to do with it and what they aren’t.  Although it is not illegal or problematic to hold unregistered land, it is a good idea to register it when possible; and of course you would need to register it anyway in order to sell it, which could hold up the process later on.

In order to register land, you will need to have a ‘root of title’ (a single document showing original ownership of the land), all documents referred to by that root, any other documents relating to the land, evidence of any changes of name or bankruptcy, grants of probate or other legal documents and details of any mortgages, together with evidence that they were paid off (and so you begin to see why unregistered land can be time consuming!). You must also fill out a form from the LR (Form FR1), which is fairly straightforward, and send this (plus a small fee) with all relevant evidence to prove title. The LR will always contact you if they need more information, but it is best to talk to your solicitor to ensure that you enclose everything first time so you only have to pay once! You will then be entitled to claim the benefit of all rights that you can show evidence for, which will be added to your title register.

Once registered, you can protect rights such as easements (rights of way, drainage etc.), restrictive covenants (things you are not allowed to do such as build above a certain height, use the property in a certain way etc.) and leases.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on  01752 309090.

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I have heard that there will be reforms to immigration rules in 2011; how will I be affected?

Posted on January 3, 2011 by admin

The coalition Government has the reduction of migration as one of its main aims and are proposing various changes to the current system. Most importantly, from April 2011 there will be a new annual cap of 21,700, to be reviewed annually.

A new Tier 1 group of ‘Exceptional Talent’ has been created, which will allow for 1,000 people such as scientists, academics and artists to enter the country. To compensate, the previous ‘General’ Tier 1 group (formally known as the ‘Highly Skilled Migrant Programme’) has been scrapped. The new group will encourage both those people who have received international recognition and those who show ‘exceptional promise’ and may receive recognition in the future. It is unclear how this will be decided, but it is likely, for example, that those working on important research projects will be included. In order to be admitted under this category, applicants should ensure that their application is endorsed by a significant figure in their field to give it the best possible weight. The other Tier 1 groups of ‘Entrepreneurs’ and ‘Investors’, whilst not limited in number, are also expected to be reformed.

The more general Tier 2 group will therefore be limited to 20,700 migrants for 2010/11. This will also be limited to graduate-level vacancies only. If you’re currently in the UK working in a below graduate-level position, you will be able to apply to extend your stay if you meet certain requirements. If you are applying to enter the UK under Tier 2, you must ensure that you have a good level of English competency and have no unspent criminal convictions.

However, the Tier 2 cap does not apply to:

- Migrants already in the UK and their dependents;

- Workers who are filling a vacancy with a salary of more than £150,000;

- Sportspeople;

-  Religious ministers; or

- Intra-company transfers (i.e. an employee who will be continuing to work for the same company in the UK). Other intra-company transfers falling within the ‘Established Staff’ category will be allowed to stay in the UK for up to five years if their salary exceeds £40,000 per year, or twelve months if between £24,000 and £40,000 per year.

In addition, there have recently been suggestions that the rules regarding student visas will be re-examined in order to encourage more higher-level (i.e. degree and above) students to enter the country. Possible changes include a tougher points-based test, stricter limits on working hours and an end to allowing students to remain in the UK to look for a job. As students currently make up two-thirds of migrants entering the UK, the Government is keen to enforce stricter rules, starting with a consultation which began on 7 December. This will run for eight weeks, during which the Government will gather views on different proposed changes. In order to have the best chance of being allowed to enter as a student, applicants should be studying at degree level or above and have a good level of competence in English.

For more information on these changes and the latest updates, please see the Home Office UK Border Agency website.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on  01752 309090.

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I rent an office for my business but can no longer afford the rent; can I sell the lease to someone else?

Posted on December 22, 2010 by admin

There are two ways to pass on a business lease rather than bringing it to an end; firstly assigning or selling the lease to someone else, and secondly underletting, or creating a new relationship where you take on a new tenant whilst staying a tenant to your own landlord. Together, these are known as alienation. You will need to check your lease in order to comply with any requirements set out by the landlord (normally requiring that you gain consent in writing), but the law also sets out some rules which make these more tenant-friendly.

There are three types of clauses, or ‘covenants’, which can apply to alienation;

  1. Absolute (i.e. ‘the tenant will not assign’);
  2. Qualified (i.e. ‘the tenant will not assign without consent’); and
  3. Fully qualified (i.e. ‘the tenant will not assign without consent, not to be unreasonably withheld’).

Obviously, a landlord wants his lease to be full of absolute covenants, as this keeps him in control of the property, whilst the tenant wants to ensure that the landlord cannot refuse requests without a good reason.

If the covenant against alienation is absolute, then the landlord can refuse any request. This type of covenant is usual in leases which have already been assigned or sublet, or leases which are only for a short period of time.

If the covenant against alienation is qualified, the law automatically upgrades it to a fully qualified one. This means that the landlord cannot refuse a request to assign or underlet without good reason. Case law has stated that the reason must relate to the landlord/tenant relationship. For example, the fact that the proposed under-tenant is on the verge of going bankrupt and might not be able to pay his rent is a fair reason for refusing, but the fact that the landlord is a Manchester United fan and his proposed under-tenant a City fan does not relate to the legal relationship and so the landlord couldn’t refuse consent on this ground alone.

In ‘new’ leases (i.e. those made after 1 January 1996), the landlord is permitted to decide beforehand on a set of reasons which are automatically reasonable and therefore allow him to refuse the alienation. He can also decide on conditions which must be adhered to by both the old and new tenants. These must be written into the original lease, and can be the source of much debate! Common reasons relate to other business leases in the same development (for example, the landlord may not want two coffee shops in the same building), and standard conditions include the need for the old tenant to act as guarantor for the new tenant (and therefore pay the rent if the new tenant goes into debt).

You will need to ensure that you get a Licence to Assign/Underlet from your landlord. This sets out their consent in writing, and is useful to all parties as it sets out who is responsible to whom for rent, and ensures that everyone knows exactly what they have agreed to.

The articles in this blog are for guidance only and should not be taken as legal advice. If you would like to further discuss a legal issue please call us on  01752 309090.

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