2011

Trusts and divorce

Access all areas. Whaley v Whaley poses the question of when a trust fund is a 'resource' in a divorce proceedings. First published in Trusts and Estates Law & Tax Journal, December 2011.

A fair and reasonable decision

The involvement of a family lawyer at the beginning of the relationship can minimise the conflict (and cost) at the end.

Enfranchisement update

First published 17 November, 2011

Wills: Helping hand

Barrett v Bem sets an unusual precedent. First published in Trusts and Estates Law & Tax Journal, November 2011.

Ann Northover interview

Published in Citywealth edition 133, November issue 2011.

Commercial property update

Considers break clauses and vacant possession, uncompleted leases, superior landlord's consent and occupier's liability. First published in Solicitors Journal, 8 November 2011.

Service charges that are beyond reasonableness

The message: The test of reasonableness allows the law to be flexible, but also creates considerable uncertainty.

The case: The Upper Tribunal has determined whether or not it is reasonable to take into account the financial position of residential lessees before spending money on major works (Garside and Anson v RFYC and Maunder Taylor, 12.09.11).

News round-up

Zahra Kanani sets out recent developments in anti-money laundering, enforcement and BPR. Published in Trusts and Estates Law & Tax Journal, October 2011.

Valuers at a loss to explain error of judgement

The message: Professionals should not act without the required expertise

The case: The High Court has held valuers liable for damages of more than £18m over a negligent property valuation, but made clear that it is not liable for all losses caused by the purchase proceeding (Capital Alternative Fund Services (Guernsey) v Drivers Jonas, 09.09.11).

Residential service charges: Limitation on recovery

Natasha Rees assesses the outcome of a case that highlights the intricacies of the notices required to recover service charges effectively.

First published in Property Law Journal, 29 August 2011.

Don’t get carried away on a subject-to-contract basis

The Message: Parties that jump the gun may well suffer the consequences

The Case: The Court of Appeal has again had to deal with a dispute between parties over an agreement that relates to considerable expenditure on land that was never properly documented (Haq v Island Homes Housing Association 20.07.11).

Timing in recovery position cannot be overestimated

The Message: Sometimes, the law is both unclear and unfair

The Case The High Court has strictly applied the statutory legislation on the 18-month time limit for recovering residential service charges, despite the unfair consequences for landlords (London Borough of Brent v Shulem B Association, 29.06.11).

When possession is nine-tenths of property law

The Message: Tenants who serve lease break notices must vacate on time

The Case: The Court of Appeal has made clear what is required for a tenant to give vacant possession of premises for a tenancy break clause (NYK Logistics (UK) vs Ibrend Estates, 16.06.11).

Leasehold enfranchisement: a question of marriage value

Should valuation of the tenants' interests on a collective enfranchisement take account of the 1993 Act, or assume a 'no Act world'? Natasha Rees considers a Court of Appeal decision on the issue.

First published in Property Law Journal, 27 June 2011.

To rely on a personal guarantee, make sure you tell the missus

The Message: Banks may face difficulties enforcing personal guarantees

Trustees' duties

Review and inform: discuss a case that emphasises the high standards the courts expect from trustees towards beneficiaries. First published in Trusts and Estates Law & Tax Journal, June 2011.

Building works took a shine off tinsel-making business

The Message: An employer is not generally liable for the unlawful acts of an independent contractor.

The Case: The court considered which parties the claimant could sue and what damages could be recovered, for damage caused to manufacturing equipment by dust during building works in Tinseltime v Roberts and others.

Tax: Current state of play

Rowe up a creek without a paddle

The Message: Failure to comply with the strict requirements of a contract may be fatal.

The Case: The Court of Appeal has decided whether a buyer of development land can rely on a technical breach to free itself from an uncommercial contract in Barratt London North v JM Rowe Investments (12.05.11).

A wake-up call to contact your witnesses early

The Message: Parties should ensure they serve all their witness evidence before trial

The Case: Litigation between Nottinghamshire and City of Nottingham Fire Authority and Gladman Commercial Properties (20.04.11) raised the issue of whether important evidence should be allowed some time after the case has started.

Don’t put off until tomorrow a claim you can pursue today

The Message: There are strict time limits for bringing property claims

Withold temptation to self-instruct

The Message: Commercial property agents have to be sure who their client is.

The Case: The High Court has determined whether an agent can recover commission on securing a property for a party with whom it did not have a direct contract (Lorenz Consultancy v Fox-Davies Capital, 17.03.11).

US Estate tax legislation - seize the moment

Published in STEP Journal, April 2011.

Dishonesty is not the best insurance policy

The Message: Honesty is the best policy when making insurance claims.

The Case: An insurance company sought to recover over £230,000 paid out for subsidence damage on the basis the insured had misled it into paying too much (Aviva Insurance Ltd-v-Brown (25/2/2011)).

Terminal dilapidations claims: recovery of fees

Rosalind Cullis assesses in what circumstances third party professional fees are recoverable.

First published in Property Law Journal, 7 March 2011.

Charities: Taking the power back

Zahra Kanani considers the results of a recent consultation over disposal of land by charity trustees. First published in Property Law Journal, 21 February 2011.

Limit on Service Charge Recovery

The Message: Landlords may not recover service charges for major works if they fail to consult properly with tenants.

The Case:  The Court of Appeal has held that landlords may suffer severe financial consequences if they undertake major works to residential properties without first complying with the statutory consultation procedure (Daejan Investments –v- Benson (28/1/2011).

Put this one down to experience

The message: Experienced businessmen receive little sympathy from the courts.

The case: The High Court has decided whether a guarantor can delay enforcement on the basis that payment was agreed to be deferred for five years (Spring Finance v HS Real Company, 20.01.11).

Leasehold enfranchisement: Deferment rates in the spotlight..again

Natasha Rees reviews a decision of the Upper Tribunal concerning the correct rate to be applied to leases under 20 years.

First published in Property Law Journal, 24 January 2011.

IOD Personal Wealth Taxation