Sunday, January 20, 2019
Legal

Responding to Theresa May’s announcement yesterday on plans to extend civil partnerships to opposite sex couples, Graeme Fraser, the chairman of Resolution’s cohabitation committee, said:

“The announcement is surely a victory for equality, with the extension of civil partnerships to all, allowing those who do not wish to get married and their children the benefits of a formalised relationship. It is also a step in the right direction as it helps bring family law in line with modern values.”

If a same-sex couple enters into a civil partnership, they will be able to make a financial claim in the event of dissolution. If one of them dies, the surviving partner will be able to claim against their late partner’s pension scheme.

Civil partnerships are infinitely preferable to unthinking and risky cohabitation. Two-thirds of people who cohabit don’t actually realise they are unprotected, as “common-law marriage” does not exist. Cohabiting couples are less likely to formalise their relationship through marriage or a civil partnership, as they do not realise that they are at risk if they separate or if one partner dies without making a will.

Resolution has repeatedly called on the government to urgently provide at least basic rights for cohabiting couples. Hopefully, in time, the government will change the law to allow the justice system to recognise unmarried family units, irrespective of any formal registration, to financially protect the couple and any children.

In the meantime, Keith Bull, head of the family & divorce department at Bromleys Solicitors LLP in Ashton-under-Lyne, recommends that unmarried couples protect themselves by entering into a cohabitation agreement. This will regulate their cohabitation and/or a trust deed stating how their property is to be divided in the event of the death of one party, or their relationship coming to an end, to save substantial legal fees and to give their relationship certainty.

If you need any advice in relation to the above, or any other family matters, please contact our expert family & divorce team on 0161 330 6821 or email:

Keith Bull – kbull@bromleys.co.uk

Denise Pinder – dpinder@bromleys.co.uk

Kristie Fawcett – kfawcett@bromleys.co.uk

Alternatively, you are welcome to attend any of our free legal surgeries. Please click here for dates and times – No appointment necessary.

 

As property values have risen over the years many people who previously did not have to consider Inheritance Tax are now finding themselves in that position.

For those with larger estates it is easier as the rules around gifting favour them, but it is not so easy for those with smaller estates who still need to do some planning. The gifting rules let someone with hundreds of thousands of pounds to give away, takes advantage of the tax breaks that become more generous with the length of time between the date of the gift and the time they die, while those who can only afford to make smaller gifts must live seven years to get any advantage from their gifts.

Everybody has an annual allowance of £3,000 which they can give away. This can be given to one person or divided up for example: £1,000 to each of three children.  This gifting does not count towards the estate for Inheritance Tax purposes.  There are other allowances such as for birthdays, Christmas and weddings.  Larger gifts that are made are known as Potentially Exempt Transfers or PETs.  When a PET is made if the person making the gift lives seven years from the date of making the gift then it falls out of their estate.  This is all well and good if you survive the seven years, but what happens if you don’t?

When you die, the gifts that you have given away in the last seven years are added up and use up the available nil rate band first (currently £325,000). This then reduces the amount of nil rate band available for the rest of the estate.  For those who have gifted over £325,000 however and lived between 3 and seven years there is something called taper relief.

If you die within three years of making a gift then tax is payable at the full 40% on the amount

Gifted over £325,000, however the effective tax rate for deaths after three to four years is 32% then 24% then 16% then 8% for each following year. This taper relief however only helps the wealthy as the gifting must be in excess of £325,000 to qualify for taper relief and not many people have that much available to gift away.

There are other ways in which to gift money without it being clawed back into your estate when you die. For all Inheritance Tax issues the best thing to do is seek advice, particularly when considering gifting.

How we can help

Contact: Laura Stansfield, Sue Darlington or Susanne Furness in our Wills, Probate & Planning for the Future department to discuss how one of our team of experts can help guide you through this process.

Email: lstansfield@bromleys.co.uk; sdarlington@bromleys.co.uk  sfurness@bromleys.co.uk

Tel: 0161 330 6821

 

Glossop and Manchester based law firm Davis Blank Furniss has appointed Libby Holding as the new head of its private client department.

Libby joins Davis Blank Furniss from Beaumont Legal in Wakefield. Her new role will see her focusing on a variety of core work including wealth and succession planning, inheritance tax advice, trust creation and administration, wills, lasting powers of attorney and estate administration.

Libby completed her LLB Law Degree at the University of Liverpool in 2008 and she then took the Bar Vocational Course at City Law School in London; she was called to the Bar 2009. Libby cross qualified and was admitted as a solicitor in 2011. She started in family law and then decided to move into private client work. She initially specialised in probate before shifting her focus to the full range of private client matters.

Kate Oldfield, managing partner of Davis Blank Furniss, commented: “We have seen a surge in demand for our private client services so Libby’s arrival is great news for the firm. She brings with her some fantastic experience which I know will benefit our clients and wider team.”

Libby added: “Davis Blank Furniss is a fantastic firm and seemed the right fit for me. I have a keen interest in business development, marketing and innovation within the legal sector so I am looking forward to growing the private client team in both offices.”

The firm has also announced that two of its team have qualified. Gregory Carr is now a solicitor in the Property department, whilst Rebecca Taylor has qualified as a solicitor in Dispute Resolution department.

Due to changes to the rules on pensions, the Financial Conduct Authority (FCA) and The Pensions Regulator (TPR) are trying to raise awareness of pension scams.

Research now shows victims losing an average of £91,000 each last year!

The FCA and TPR have launched advertising campaigns targeting pension holders aged 45-65 as a YouGov poll found that 32% of this group would not know how to check whether they are speaking with a legitimate pensions adviser or provider.

One of the most common scams is to offer a ‘free pension review’. 12% of 45 to 65-year-olds surveyed said they would trust an offer of a ‘free pension review’ but It is thought that only a minority of pension scams are reported. The FCA and TPR are therefore asking the public to be vigilant and report these scammers

Pension scams cause serious financial and mental harm –If you are ever in doubt about a pension offer, visit the ScamSmart website.

The FCA and TPR are appealing to people to check who are they are dealing with and to be very wary of cold callers.

The advertising campaign shows the comparison between victims of pension scams and the lifestyles relished by the criminals behind the scams. Using TV, radio and social media adverts, it urges anyone who is contacted about their pension to visit ScamSmart before they do anything.

The government also intends to lay regulations to ban pension cold calling in the autumn.

As this is a fairly complex area, please contact one of the team at Your Tax Shop based in Ashton-under-Lyne on 0161 3395689 for any further information regarding your pension.

If you have an employee who is being made redundant are they entitled to Statutory Maternity Pay (SMP) and do they continue receiving SMP after the redundancy?

The simple answer is yes, as for an employee receiving SMP at the time they are made redundant the employer must discharge their full liability by either continuing to pay SMP to the employee based upon what would have been their normal pay period or by paying the SMP as a lump sum payment.

When SMP continues to be paid in the same way and at the same time when the employee stops working you should agree with them whether they require a form P45 or not. If they do then deduct tax on the remaining statutory payments using code 0T (S0T, if they are taxed at the Scottish rate) on a ‘week 1’ or ‘month 1’ basis. If they don’t require a form P45 then use their usual tax code for the statutory payments. If the employee requests their form P45 upon termination or before all of the SMP has been paid it is an indicator that the employee has or will be starting work for a new employer that she did not work for during the Qualifying Week (QW) and you will be able to explore this further. Where the employee requests their form P45 after termination but before all SMP has been paid or the form P45 is to be issued because you have made all payments of SMP then record the final payment date as their leaving date.

A lump sum payment of SMP can be paid to the employee where both the employer and the employee agree to payment in this way. There are however risks associated with lump sum payments as both the employer and the employee may pay more in National Insurance Contributions and the employee may pay more tax (although any overpaid tax would be repaid at the end of the tax year). Also if the employee starts work for another employer after the QW but before the birth of the baby the liable employer remains liable to pay SMP throughout the MPP for any complete weeks the employee does not work for that employer. If the employee ends her employment with that employer SMP will resume until the end of the Maternity Pay Period. If the employee were to start work for a new employer after the baby is born, but before the end of the Maternity Pay Period, who did not employ them in the QW their entitlement to SMP will stop. You would in either of these circumstances have overpaid wages which you will then need to recover from the employee and you will also need to recalculate and repay to HMRC any SMP recovered incorrectly.

For an employee who undertakes any work in a self-employed capacity during their Maternity Pay Period, then such work will not affect their payment of SMP.

As this is a fairly complex area, please contact one of the team at Your Tax Shop based in Ashton-under-Lyne on 0161 3395689 for any further information regarding SMP.

 

 

Law firm Bromleys has been shortlisted for a hat-trick of accolades at the 2018 Pride of Tameside Business Awards.

Bromleys is a finalist for the professional services business of the year and the medium business of the year awards, and for the corporate social responsibility honour which it won in 2017.

The winners will be announced at a gala dinner at Dukinfield Town Hall on Thursday, October 25. The awards ceremony will be hosted by broadcaster Andy Crane.

Mark Hirst, senior partner at Bromleys, said: “This is a great achievement for each and every member of the team, and reflects the tremendous progress which the firm has made over the past 12 months.

“The awards recognise the great strides made by businesses of all sizes and nature across Tameside, and to be shortlisted by our peers in three categories is a tremendous boost.

“All of the nominations are well-deserved, and we are looking forward to an enjoyable evening celebrating the successes of Tameside businesses.”

Bromleys is also in the running for an honour at the 2018 LFS Conveyancing Awards. Its property team is a finalist in the national contest for excellence in conveyancing services.

Earlier this year, Bromleys was crowned small firm of the year at the Manchester Legal Awards.

Do you know that if you lose mental capacity your next of kin does not automatically have the right to deal with your finances for or health, care and welfare decisions.

Do you know that in the North West, 96% of people have not made provision to protect against this, usually by creating a Power of Attorney to appoint someone to act for them when they become incapable.

Do you know  that 12.8 million people over the age of 65 could develop dementia and only 928,000 have created a Power of Attorney. This shows that almost 93% of these people are ill-prepared for what may occur in the future.

For such reasons it is highly recommended and actively encouraged by the Government that you consider creating a Power of Attorney.

However, you should very carefully consider the identity of the person appointed (the Attornee), because sadly there is growing evidence that Attornees are abusing their appointment and accessing funds for their own purposes. During 2017/18, 1886 safeguarding referral cases were accepted for investigation, showing a drastic 48.9% increase from the previous year.

You will appreciate there are various serious issues to consider and we strongly recommend you take experienced, specialist legal advice before proceeding.

Surprisingly, the Court of Protection / Office of the Public Guardian do not as a matter of course, monitor and control Powers of Attorney appointments and finances, after the initial appointment.

If you are aware or suspicious of financial abuse (particularly of the elderly), then we do have a specialist, highly experienced team, who can assist you by either a Court of Protection appointed Deputy or an Attorney appointed by a Power of Attorney or otherwise.

 

Please contact:-

David Hiltondhilton@bromleys.co.uk

John Longworthjlongworth@bromleys.co.uk

or by telephone on 0161 330 6821.

Alternatively, you are welcome to attend any of our free legal surgeries – no appointment necessary.

 

It is currently a legal requirement that prior to the sale or letting of a residential or commercial property that an Energy Performance Certificate (“EPC”) be made available to the prospective buyer/tenant.

An EPC should also be commissioned where a new property is built; an existing property is significantly altered, if a property is subject to a Green Deal and for certain public buildings (where it is mandatory for a copy of the EPC to be displayed).

An EPC is “valid” for a period of 10 years and where a new EPC is registered for the same property, the previous EPC becomes redundant.

The obligations on a property owner when selling or letting a property requiring an EPC are as follows:

  • to commission an EPC before marketing if there is no existing valid EPC;
  • to put the EPC rating in any advertisements of the property for sale or letting;
  • to make available to the prospective buyer or tenant a valid EPC for the property.

It is also the property owner’s responsibility to commission the EPC and the property owner should not look to reclaim the cost of commissioning an EPC from a prospective buyer or tenant.

As a general rule, most residential and commercial properties being sold/let are subject to the requirement to have a valid EPC in place. However, the following properties are exempt from the requirement to have a valid EPC:

  • Properties which do not have a roof or do not have walls;
  • Properties which use no energy to control the indoor climate;
  • Properties which are not designed or altered to be used separately;
  • Religious properties;
  • Temporary properties;
  • Industrial sites, workshops and non-residential agricultural properties with a low energy demand;
  • Non-residential agricultural properties;
  • Residential properties which are not used for much of the year;
  • Stand-alone properties;
  • Buildings earmarked for demolition;
  • Listed buildings and buildings in conservation areas, but only in certain circumstances.

In circumstances where an EPC should have been put in place but it transpires that it was not, penalties can be imposed by the local weights and measures authority. The current legislation sets those penalties as:

  • Residential properties – £200 for a dwelling;
  • Commercial properties – 12.5% of the rateable value of the building, with a minimum penalty of £500 and a maximum £5,000.

A useful table detailing the possible penalty charges can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/508827/1600315_enforcement_guidance_Final.pdf.

It is therefore important to ensure that an EPC is provided to a prospective buyer or tenant as early as possible in any property transaction so as to avoid being fined by the local weights and measures authority.

Should you need advice relating to the legal requirements relating to EPC’s or indeed any other property law matters, please contact:

Paul Westwell at pwestwell@bromleys.co.uk or

Martin Blaylock at mblaylock@bromleys.co.uk or

by telephone on 0161 330 6821.

Alternatively, you are welcome to attend any of our free legal surgeries – no appointment necessary.

 

The recent case of Lea v Ward has served to show that the court will attempt to take a practical view when awarding damages where a third party’s rights have been obstructed but this will nevertheless cause a delay for the homeowner looking to extend their property or a developer looking to develop a site.

The Facts

In Lea v Ward the developer, Mr Ward, wanted to build six residential properties on part of his land but his neighbour, Mr Lea, had a right of way over a section of this land. Mr Ward attempted to negotiate with Mr Lea in order to agree an alternative access route across his land in exchange for surrendering the existing right. The negotiations broke down but Mr Ward started work on his development.

As part of the development works, Mr Ward was required to erect temporary safety fencing to protect the public and this caused a temporary obstruction to Mr Lea’s right of way. This fencing was in place between April 2015 and September 2015 but Mr Lea only noticed that his right of way had been obstructed after 3 months.

Mr Ward then subsequently erected gateposts across the access in November 2015 and at this point Mr Lea started a claim seeking an injunction against the development on the basis that the development obstructed his right of way.

The Decision

Both Mr Ward and Mr Lea agreed that Mr Lea’s right of way had been obstructed for a temporary period of time when the safety fencing had been erected. The court held that as Mr Ward had made provision for an alternative route and the fact that Mr Lea had not noticed that his right of way had been obstructed for 3 months, Mr Lea was entitled to damages of only £5.

In relation to the gate posts, Mr Lea’s argument was that he had a right of way stretching across 5 metres wide of Mr Ward’s land but that Mr Ward had narrowed the access to 2.25 metres wide in some places and therefore this constituted a permanent interference with his rights. The court held, after much consideration of this issue, that Mr Lea’s right of way was in fact 4 metres wide and ordered that Mr Ward alter the gate posts to widen the access and pay Mr Lea £500 for the obstruction of his rights.

The Lesson

In the circumstances the court’s ruling seems to be practical and fair. However, whilst the damages seem trivial the costs incurred by Mr Ward in defending the action brought by Mr Lea will no doubt have run into several thousand if not tens of thousands of pounds. Furthermore, Mr Ward was unable to begin work on his development for some 16 months whilst the court proceedings were settled.

If Mr Ward had given further consideration to Mr Lea’s third party rights and obtained legal advice prior to erecting the safety fencing and erecting the gateposts then he could have saved considerable costs in legal fees and he should have been able to commence his development as planned.

How Bromleys Can Help

At Bromleys, we can provide timely expert legal advice on third party rights affecting or benefitting your land prior to such an issue escalating further. Should you need advice relating to third party rights or indeed any other property law matters, please contact:

Paul Westwell at pwestwell@bromleys.co.uk or Martin Blaylock at mblaylock@bromleys.co.uk or by telephone on 0161 330 6821.

Alternatively, you are welcome to attend any of our free legal surgeries – no appointment necessary.

 

Manchester and Glossop law firm Davis Blank Furniss has made three new appointments across the business.

The first new starter is Amie Tsang who joins as a senior consultant in the Property teamBefore arriving at Davis Blank Furniss, Amie ran her own successful small practice for 20 years. She brings with her a very loyal client base which is mainly from the UK and Chinese business community of largely Real Estate matters with some residential conveyancing & plot sales as well as business immigration.

Katherine Darbinean is Davis Blank Furniss’ newest Personal Injury & Clinical Negligence solicitor. Katherine qualified in December 2014 and joins Davis Blank Furniss from Thompsons Solicitors. Her role will cover higher value claims with severe injuries and some Clinical Negligence work.

Suzanne Thompson has joined the Corporate and Commercial team as a solicitor. Suzanne qualified in 2016 and joins from BLM LLP. Her work includes company restructures, shareholders agreements, company sales and acquisitions, commercial contracts and terms and conditions and intellectual property matters.

Kate Oldfield – managing partner at Davis Blank Furniss – commented: “We are delighted to welcome these three talented lawyers to the team and I’m sure each will play an integral part in the firm’s future growth.”

L-R: Suzanne Thompson, Katherine Darbinean & Amie Tsang.