The Importance of Protecting Tenancy Deposits

It is important for landlords and tenants to maintain a positive relationship.  From time to time, however, disputes arise. Recently, BSG Solicitors acted on behalf of a tenant who was involved in a serious dispute with his landlord regarding repairs, alterations to the property and payment of rent.

Rather than seeking to resolve the dispute amicably with the tenant, the landlord decided to serve what is commonly known as a Section 21 notice and commenced Court proceedings for possession of the property. BSG Solicitors were instructed by the tenant to defend the claim for possession. After carefully considering the tenancy agreement and other relevant documents, we identified that the notice that had been served by the landlord was invalid as the landlord had failed to comply with the initial requirements regarding the protection of the deposit paid by the tenant as set out in Section 213 Housing Act 2004. 

The claim was defended robustly on the tenant’s behalf and the landlord’s Solicitors discontinued the claim for possession. In addition, we were able to reach an agreement that the landlord would pay the tenant’s legal costs.

We also act regularly on behalf of landlords who are granting tenancies or seeking possession of their property where they are facing difficulties with tenants and can usually do so based on a fixed fee, agreed at the start of the matter.

It is inevitable that during these difficult times disputes will arise between landlords and tenants. It is important to discuss matters first and attempt to resolve disagreements when they arise, however this is not always possible and legal proceedings may be necessary.

If you are a tenant or a landlord and you require legal assistance, please do not hesitate to contact our litigation department on 01772 253841.

Demand for Wills and Lasting Power of Attorney Soars

Lancaster law firm BSG Solicitors have reported a significant increase in the demand for Wills, inheritance tax planning and Lasting Powers of Attorney over the last three weeks.

“Only last month an online poll showed that the number one reason people did not have a Will was simply that they hadn’t got round to it. Concerns over the Coronavirus and an increased amount of time people have on their hands due to lockdown has resulted a large number of enquiries from new and existing clients” commented Rebecca Lauder, Partner.

There have been calls for the Government to make writing Wills easier during the Covid-19 crisis and the Ministry of Justice could temporarily relax rules on two witnesses being present. Scottish Law has already been amended to allow video conference facilities to assist in witnessing a testator signing their Will.

“There are challenges to ensure we remain compliant and all Wills are valid, whilst still following social distancing rules. We have done a number of ‘Window Wills’ where clients have been self-isolating and we have witnessed them signing through a window at their home. It is also possible for us to send the Wills out by post with detailed instructions for signing and witnessing.”

Whilst further clarification is expected from the Ministry of Justice, the Solicitors Regulation Authority released guidance on the 2nd of April stating that video supervision of witnesses signing Wills should be possible, for example in the case of people in a care home.

Most people just ‘haven’t got round’ to making a Will!

A recent online poll found that the biggest single reason for adults not having a Will is simply that they haven’t got round to it! Run on the MoneySavingExpert website the poll had over 3400 individual responses in just one week.

Perhaps surprisingly it was only in the over 65 age category that the vast majority of respondents had a Will and only 25% of people between 35 and 49 had a Will in place.

Age	Do have a will	Do not have a will
Under 25	11%	89%
25-34	11%	89%
35-49	25%	74%
50-64	53%	47%
65+	79%	21%

The other top reasons for not having a will in place were ‘I don’t really know where to start’ and ‘everything will go to my spouse or children anyway’. The full results of the poll can be found at https://www.moneysavingexpert.com/poll/03-03-2020/do-you-have-a-will-if-not-why-not.

Rebecca Lauder, Partner commented:

“It’s very interesting to see the results of this independent survey and whilst we would expect age to be a key factor in making a Will it’s worrying that a large number of people assume everything will automatically pass to the people they wish to benefit from their estate. Regardless of age, everyone should make a Will.

To make a telephone appointment to discuss your Will please call 01524 386500.

Commercial Property and the Coronavirus

The Government announced on Monday that Commercial tenants who cannot pay their rent because of the coronavirus will be protected from eviction if they miss payments in the next three months.

Tenants will still be liable for any rent due, increasing the likelihood of requests for rent reduction, suspension or payment plans. Both landlords and tenants are being advised to take early legal advice before agreeing any changes in rent or the terms to avoid disputes in the future.

It is worth noting that a tenant cannot bring a commercial lease to an end as a result of the coronavirus, this can only be done by:

• Exercising a break clause

• Negotiating a Surrender of the lease agreed by both parties

• Serving Notice - if the term of the lease has expired and the tenant is holding over

Hannah Walling Commercial Solicitor commented:

“Whilst the landscape is changing rapidly and we’ve seen some unprecedented actions by the Government in the last two weeks, both landlords and tenants are still bound by the terms of their leases. They must be careful not to agree anything now without professional advice.”

For advice on any commercial property matters please call 01524 386500.

IMPORTANT NOTICE

Following UK Government guidance all of our staff are now working remotely and there will be no access to our offices for the general public unless otherwise agreed.

Wherever possible, please send communications and documentation to us electronically but do not send bank details or other sensitive information by email.

Our legal services can still be dealt with remotely including but not limited to:

• Wills, Lasting Powers of Attorney and Probate

• Residential and commercial property – though completion dates will be affected

• Family matters

• Litigation/Dispute Resolution and Personal Injury matters

Our telephone lines have been redirected and we are still available on 01524 386500 or email enquiries@bsglaw.co.uk

Coronavirus: Can I still make a Will or Lasting Power of Attorney?

The way in which we provide our services has changed but we are very much still operational and now more than ever it is important to ensure you have an up to date Will and Lasting Power of Attorney.  Indeed, we have seen an increased demand for advice over the last week.  To ensure we provide this service as safely as possible, we are minimising face to face contact with clients and using the following process:

• All initial meetings are completed by telephone.

• Documents are sent via email or post dependent on the client’s preferences.

• Clients come into the office to sign but use our rear car park entrance so they do not need to come into contact with anyone.  If a client cannot attend we can make alternative arrangements.

• Clients are asked to bring their own pen.

• Distance between clients and staff is maintained whilst they sign.

• Our offices are being disinfected regularly and after every client meeting

• All staff are adhering to Government guidelines with regards handwashing, hygiene and reducing the spread of infection.

To arrange your initial telephone meeting please call 01524 386500 or email enquiries@bsglaw.co.uk

The heterosexual couple and the civil partnership

For several years now same sex couples in the UK wanting to legalise their relationship have been given the choice between entering into a civil partnership or getting married. However, following a long-awaited change in the law, mixed sex couples looking to put their relationship on a legal footing will now also benefit from the right to choose between marriage and civil partnership.

Since 2nd December 2019, by virtue of the Civil Partnership Act (CPA) 2004, as amended, a new “civil partnerships for all” approach finally came into force.

What is the law relating to same sex couples?

At a time when same-sex couples were not legally permitted to marry, the Civil Partnership Act 2004 made it possible for gay men and women in the UK to enter into a legally binding union, similar in many ways to a marriage.

A civil partnership is essentially a legally recognised relationship between two people, where civil partners automatically have access to responsibilities and rights akin to those that arise for married couples, including tax and pension benefits, as well as an entitlement to the same inheritance rules as spouses.

In due course, albeit almost a decade on, the Marriage (Same Sex Couples) Act (MSSCA) 2013 went on to legalise same-sex marriage, thereby giving gay couples the same rights, benefits and entitlements as married heterosexual couples – as well as the choice between entering into a civil partnership and getting married.

What is the law relating to mixed sex couples?

In addressing the inequality of treatment between same and mixed sex couples, the fact that the CPA was not repealed when the MSSCA was enacted created a new and different imbalance insofar as the right afforded to same sex couples to choose between entering into a civil partnership or getting married was not extended to couples of the opposite sex.

By virtue of section 3(1) of the CPA 2004, as originally enacted, two people not of the same sex were not eligible to register as civil partners. The CPA was, therefore, explicitly and emphatically designed for same sex couples only.

It was not until a Supreme Court (SC) ruling in 2018 that the stage was set for legislative change so as to address this imbalance. In the landmark case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development, all five SC justices found that the prohibition against mixed sex couples from entering into a civil partnership was incompatible with the right to respect for private life under the European Convention on Human Rights.

In response, the new Civil Partnership (Opposite-sex Couples) Regulations 2019 expressly amend the eligibility criteria in the CPA 2004 to allow opposite sex couples to register civil partnerships under the law of England and Wales. This means that heterosexual couples may now also opt for civil partnership instead of marriage.

So what does the new law mean for mixed sex couples?

There are various reasons why a mixed sex couple may want to enter into a civil partnership as opposed to getting married, not least that marriage, as a historical institution, has certain religious connotations.

For many, marriage also no longer fits with modern day ideologies. In particular, it is commonly perceived as being steeped in patriarchal tradition, whereby women are “given away” by their fathers and promise to “obey” their husbands.

For those who object to marriage for these, or indeed any other reasons, civil partnership is an ideal way of legalising their relationship, providing similar financial and legal protection as that afforded to spouses.

By offering heterosexual couples a genuine secular alternative to marriage, the law may even encourage more couples to enter into a legally recognised relationship, paving the way for the new “modern marital-style union”, and thereby avoiding the legal pitfalls of the mythical common law marriage.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

BSG Solicitors: Open For Business

These are challenging times, but we would like to assure you that BSG Solicitors remains open for business and we are taking every precaution to ensure we are able to continue serving our clients whilst protecting the health of our staff.

We are conforming to the latest government advice and implementing our own business continuity plan which includes:

• Stopping non-essential face to face meetings and conducting other appointments by phone.

• Using software that allows clients to sign documents electronically where possible.

• Disinfecting the meeting rooms and common areas after each client meeting.

• We can work from home as if we are in the office using remote computer and telephone access.

For further information please call 01524 386500 or email enquiries@bsglaw.co.uk

Property protection trusts for you and your new spouse

For those of you who have been fortunate enough to find happiness through marriage second time round, you and your new spouse may, nonetheless, be keen to protect your assets after you each pass away, ensuring that any children from previous relationships still benefit from your respective wealth.

Equally, you may also each want to ensure that any surviving partner will have the security of living in the marital home for the duration of their lifetime. As such, by utilising a well-drafted property protection trust, this can help to protect your assets, as well as each other, after you are gone.

What are the inheritance rules for spouses?

Under the inheritance rules in England and Wales, otherwise known as the rules of intestacy, regardless of whether you are entering your first or any subsequent marriage, your spouse will become the primary beneficiary of your estate, being given priority over any children that survive you.

Accordingly, under the current law, unless you have a valid will in place that expressly provides otherwise, your new spouse will stand to inherit the first £250,000 of your estate if you die first, in addition to half of the remaining estate – with the other half to be divided equally between any children.

How can a property protection trust help?

A property protection trust is a legal mechanism, typically contained within a last will and testament, in which the testator’s share of a property is held in trust for the purpose of allowing any current occupant to continue residing in the property whilst protecting the capital value for the benefit of others.

In other words, the property protection trust will allow the surviving spouse to live in the marital home for the remainder of their life, with the property passing to any beneficiaries upon their death.

There are several benefits to a property protection trust, from providing peace of mind for both you and your spouse that you will each continue to have a home to live in upon the other person’s death, to ensuring that your respective children will still eventually benefit from your estate(s).

In particular, through a property protection trust the deceased’s share in any property will be ring-fenced in the event that the surviving spouse decides to remarry. It will also protect the deceased’s share of the marital home from being factored into any calculation for the long-term care of any surviving partner.

 How do I set up a property protection trust?

Needless to say, it is essential that you revise your will when you remarry, not least because marriage invalidates an existing will.  This will also protect everyone involved and is also a good opportunity to review and revise arrangements. However, it will not necessarily be sufficient to make a standard will. Even if you and your spouse each leave everything to the other, with your joint estates to be divided equally amongst your children when the second person dies, this will not legally prevent the surviving partner from changing their will and removing any children as beneficiaries from their will.

Sadly, without a property protection trust, there is no guarantee that your wealth will be distributed in accordance with your wishes. As such, given the importance of getting this right, you should always seek expert legal advice on setting up a property protection trust. In this way, any assets held within the trust will be protected for the benefit of those you intended.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

The use of a caveat in the grant of probate

Even though, under the principle of testamentary freedom in English law, it is open to an individual to bequeath their assets and belongings to whomever they choose, it is not uncommon for loved ones to dispute a deceased’s will.

Indeed, disputes can arise in all sorts of ways, not least where a loved one seeks to challenge the validity of a will on the basis of either improper execution, lack of mental capacity, coercion or even fraud. Disputes can also commonly arise where someone dies intestate, ie; without a will, but there are legitimate concerns about the suitability of any next of kin in administering the estate.

However, in order to prevent the deceased’s estate from being distributed prior to raising and resolving any concerns, it may be necessary to enter a ‘caveat’ to prevent the personal representatives from seeking a grant of representation.

What is a grant of representation?

A grant of representation is the legal authority given to a named individual, or individuals, required to administer an estate. There are two types of grant, ie; a grant of probate (for the executors of a will) and letters of administration (for the deceased’s next of kin where a will did not exist).

The grant of representation will allow the named personal representative(s) to settle any debts and liabilities, including taxes and funeral expenses. Moreover, the grant will also allow these individuals to collect in and distribute any money, property and personal possessions that belonged to the deceased, in accordance with either the terms of the will or the rules of intestacy.

What is a caveat?

A caveat is a legal means of preventing the personal representatives from obtaining a grant of representation. In this way, the executors or any next of kin will not be granted the legal authority to collect in the deceased’s assets nor, more importantly, to distribute the deceased’s estate until the matter is resolved.

How do you enter a caveat?

To enter a caveat in England and Wales, you will need to file a short application with the Probate Registry. The fee to do this is currently just £20.  Once lodged, a grant of probate cannot be issued until the caveat has been removed or expired. The caveat will only remain in place for six months, but it can be renewed.

When should a caveat be used?

A caveat should only be entered against a deceased’s estate where there is some doubt as to the validity of the deceased’s will or, alternatively, where there are issues as to the suitability or eligibility of the person(s) applying for the grant.

When should a caveat not be used?

A caveat should not be used if someone has received less than they expected under a valid will. This could include, for example, where a dependant is looking to the court to vary the distribution of the deceased’s estate where there has been inadequate financial provision otherwise made for them.

The use of a caveat in these circumstances could result in the imposition of financial penalties.

When should a caveat be lodged?

If you are looking to lodge a caveat, it is essential that you do so as soon as possible to avoid a grant of representation being obtained.

It is also recommended that you seek legal advice at the earliest possible opportunity in a bid to resolve any concerns about the validity of the will, or the suitability of the personal representatives, without recourse to legal proceedings.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.