News

Why Cohabitation could be jeopardising your future!

By Kayleigh James

We have an increasing number of clients approaching us regarding cohabitation law disputes, many believing that they are protected by the myth of the “common law marriage.”

A recent case highlighted the need for cohabitation law to be updated.

Joy Williams lived with her partner Norman Martin for 18 years.  Joy and Norman were not married, Norman was still married to his estranged wife Maureen Martin, whom he had separated from but never divorced.  Norman had not updated his will.

Joy and Norman purchased their property as tenants in common, meaning that their respective shares would pass to whoever they chose in their will, this is different to purchasing as joint tenants where the deceased’s share automatically goes to the surviving joint tenant.

On Norman’s death, his share of the property passed to his estranged wife which meant that Joy faced losing her home of 18 years.

Court proceedings were issued and Joy successfully argued that the court should award her Norman’s half of the house to provide her security as she has been without his financial support since his death. The judge ruled in her favour, recognising that she had lived with Norman Martin as ‘husband and wife’ for many years.

But despite the victory, the case highlighted the need to update cohabitation laws.

At present, the legal rights and entitlements of those who live together are entirely different to those who marry and there is no such thing as common law husband and wife.

If you intend to cohabit with your partner, consider entering into a Cohabitation Agreement which outlines who owns the property, how mortgage payments and other bills are to be divided and what the division should be in the event of separation.  You should also update your will to reflect your wishes, particularly if a separation does occur.

If you are purchasing your property, we will advise you on the difference between owning the property as joint tenants or as tenants in common.

If, like Joy and Norman, you are moving into a property already owned by your partner, you should again consider a Cohabitation Agreement to record your intentions, you should also consider whether you wish to update the legal title into joint names.

On some occasions, you may both intend to purchase a property jointly but perhaps your credit rating does not enable you to obtain a mortgage and so the house is registered in your partner’s sole name.  You should think about what will happen if you do separate, is there evidence that the house was intended to be a joint venture?  Will you be contributing towards the mortgage and other outgoings?  Again, this is where we would advise that you consider entering into a Cohabitation Agreement as soon as possible.

Joy commented on her case: ‘I hope my situation raises awareness for others to consider their own financial position in relation to their partner and consider whether they need to protect each other in future.’

If you do have any queries as to your legal rights or would like further advice in relation to the above, we at BWL would be happy to assist you.

Collective Enfranchisement: When can a freeholder/landlord retain the common areas?

The recent case of Snowball Assets v Huntsmore House (freehold) [2015] UKUT 0338 (LC) concerns a tenant serving a notice on the landlord to acquire the freehold of the building, together with the ‘additional premises’ (common parts), such as the gardens and driveway and, in this particular case, the leisure complex serving the flat. The landlord served a counter-notice on the tenant, conceding the tenant’s right in respect of purchasing the freehold for the building, but took issue with the price payable to acquire this, in addition to the tenant’s claim to acquire the freehold of the common parts (which the landlord wished to redevelop).

What does the Law say?

The law (subject to various qualifying criteria) provides that long leasehold tenants (of flats) have a collective right to purchase the freehold to the building and common parts. These rights are set out in The Leasehold Reform, Housing and Urban Development Act 1993, being the tenants’ ‘rights of collective enfranchisement’ and, when seeking to deny a tenant such rights, the landlord must satisfy the ‘equivalence test’ set out at Section 1 (4) of the Act. The statutory purpose of the test is to offer the tenant protection by ensuring that they are in a reasonably like position to that which they would have been, should they have acquired the freehold to common parts.

In the reported case, the landlord argued that under the terms of the existing leases, it had the right to undertake such redevelopment and was therefore entitled to retain the freehold to the common parts. They proposed (in an attempt to satisfy the equivalence test) to grant the tenant rights over the same, and further sought to argue that should the tenant be entitled to acquire the freehold to the common parts, they should pay £100,000.00 (as opposed to £10,000 directed by the First-Tier (Lands Chamber) (the FTT)) in recognition of such rights in landlord’s favour.

The FTT concluded that the tenant was entitled to acquire the freehold to the common parts, with the decision being upheld by the Upper Tribunal (Lands Chamber) (the UT) on appeal.

The UT considered 3 questions:

  1. Did the landlord have the right to withdraw rights from the tenants to use the common parts?

On construing the lease, the UT decided that the tenants enjoyed permanent (as opposed to precarious) rights to use the common parts, and could reasonably expect to have such rights. Further, the leases were granted in respect of flats in a new development, to include a garden and leisure complex, and if the tenants’ rights of use of these facilities were to be permanently withdrawn, the lease would need to expressly confer this right on the landlord. As the lease was silent on who had to the right to provide or allocate a facility, and also contained nothing to indicate who had the right to withdraw the provision or allocation of a facility, the lease failed to confer such rights on the landlord.

  1. Did the landlord have the right to redevelop the common parts?

The UT held that the landlord did not enjoy a general right of development in relation to the common parts and, particularly, the landlord did not have a right to carry out the proposed development (which was substantial) under the existing lease.

  1. Was the equivalence test satisfied?

The UT held that it was not. Although the landlord had offered rights to the tenant over the common parts in question, they were insufficient to satisfy the test. The UT maintained their finding in Fluss v Queensbridge Terrace Residents Ltd [2011], reiterating that permanent rights over common parts should be granted, equivalent to those rights enjoyed by the tenants at the time.

The law in practice:

A landlord would be unwise to assume that they will be entitled to retain the common parts for development purposes, and, in cases where a landlord envisages future development of the common parts and/or property, the reported case highlights the importance of providing such rights in the landlord’s favour at the point of drafting. The case makes clear that the lease will need to specifically reserve, and expressly state, such rights.

The case also illustrates the efficacy of the equivalence test set out in the 1993 Act in protecting the tenant’s rights of collective enfranchisement. To defeat the test, the landlord will need to strictly adhere to the enfranchisement regime set out in statute, and be able to offer the tenant equivalent rights.

Are you looking for legal advice and support? Our friendly and professional team offer a range of services and a fresh approach to challenges. Call us on 01792 655178 or email enquiries@bwl-law.co.uk.

BWL delighted to have Lexcel accreditation for yet another year

We at BWL are excited to announce that we are Lexcel accredited for yet another year! This is a great achievement to be one of the 1,700 legal practices in England and Wales with this accreditation for more than10 years.

A Lexcel accreditation is the Law Society’s legal practice quality mark for excellence in management and client care. We have achieved excellence in the seven mandatory areas of: structure and strategy, financial management, information management, people management, risk management, client care, file and case management.

“We are very pleased to have Lexcel accreditation again. It provides important safeguards for clients and a practice management standard,” said BWL Partner Richard Davies.

Lexcel is specifically developed for the legal profession recognising both law firms and in-house legal departments. It gives assurance that the practice meets high standards in client care and business management.

The process to gain and retain accreditation is intense with the practice undergoing a rigorous initial and annual application that includes background checks and on-site visits from an independent and experienced trained Lexcel assessor.

For more information on what it means to be Lexcel accredited please go to their website http://www.lawsociety.org.uk/support-services/accreditation/lexcel/

If you are in need of any legal services contact our Lexcel accredited BWL team on 01792 655178 or go to our website http://bwl-law.co.uk/

Cases should be resolved justly, not merely by default

The Court of Appeal has recently given a landmark decision which has provided detailed guidance relating to relief from sanctions under section CPR 3.9, which swings the pendulum from the original guidance given in the famous case of Mitchell V. NGN.

The facts, decision and rationale in Mitchell, formed the guidance upon when relief from sanctions would and would not be granted. In Mitchell, the Master dealing with the case found that the Claimant’s non-compliance with the Civil Procedure Rules caused substantial extra work and costs to be incurred by the Defendant and disrupted the work of the Court. As a result, the relief from sanction was refused and the Court of Appeal subsequently upheld that decision. In the Court of Appeal’s Judgment, guidance was given as to how the “new” approach should be applied in practice and said that:

“It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided than an application is made promptly.”

Therefore it seemed that following Mitchell, where a failure to comply with a Court order, rule or direction can be said to be more than a trivial breach and there is no good reason for the failure to comply with the same, then a party seeking relief from the sanction is unlikely to be granted relief.

However, the Court has now provided further guidance in dealing with three appeal cases of Denton, Decadent & Utilise. The Court says that Mitchell has been misunderstood and misapplied in some Courts, which has led to disproportionate decisions being made.

In Judgement, the Court provided new guidance and said that relief will usually be given for breaches that were neither serious nor significant, with the word “trivial” no longer being used. Consideration of whether there was a good reason for the breach should be given, and all of the circumstances of the case should be taken into account to allow the Court to deal with the application justly. The Court also emphasised the need for co-operation from the party not in breach and said that it would be wholly inappropriate for that party to capitalise on the mistakes of the party in breach in the hope of a ‘wind-fall strike out’.

In allowing three appeals in which clear and uncontested breaches of rules, practice directions and court orders occurred, it is now apparent that the Court was perhaps a little over-zealous in the Mitchell case, and that every effort should be made to ensure a case is resolved justly, and not merely by way of fluke or default.

Are you looking for legal advice and support? Our friendly and professional team offer a range of services and a fresh approach to challenges. Call us on 01792 655178 or email enquiries@bwl-law.co.uk.

Woman wins ex-husband’s entire fortune in divorce case

A woman has been awarded her ex-husband’s entire fortune in what is believed to be the first divorce case of its kind in the UK. Dr Enas Aly was awarded the £550,000 assets her ex-husband, Dr Essam Aly, owned after he allegedly “washed his hands” of his family.

Essam Aly appealed, stating the decision was “unfair”, however judges declared that he thoroughly deserved the ruling against him – saying that he had neglected his family when he left the UK and began a relationship with a new woman in Bahrain, underwent an Islamic marriage ceremony and had another child, having not paid a penny in maintenance or child support to Enas Aly since 2012.

Judge Mark Rodgers awarded Enas Aly the proceeds of the sale of their £250,000 home and another £310,000 from Dr Essam Aly’s bank accounts. Lord Justice McFarlane said that Rodgers had “no realistic expectation of getting any further maintenance” from Dr Aly, and Lord Justice McCombe upheld Rodger’s award to Dr Aly’s ex-wife because he had abandoned his duty of care.

He said of Dr Essam Aly: “He was beyond the reach of enforcement of courts in this country. He hadn’t been paying for the previous two years. The wife was to have the sole responsibility and financial burden for bringing these children up. The judge, therefore, concluded that she should have the lion’s share, if not all, of the assets, as she needed them to house herself in appropriate accommodation and make provision for these children.”

Are you looking for legal advice and support? Our friendly and professional team offer a range of services and a fresh approach to challenges. Call us on 01792 655178 or email enquiries@bwl-law.co.uk.

Landmark Supreme Court bid in Family Law

Kathleen Wyatt, 55, has won a landmark Supreme Court bid to claim cash from her millionaire ex-husband 20 years after they divorced. Ms Wyatt first took legal action against Dale Vince, 53, founder of wind-power firm Ecotricity, in 2011. Mr Dale set up his company in 1995 after the pair had split. He is now worth an estimated £107m and has an OBE.

Ms Wyatt, who now lives in Monmouth, lodged her first claim for “financial remedy” in 2011; however Mr Vince had previously appealed against his ex-wife on the basis she had lodged the claim too late. Ultimately, five Supreme Court justices unanimously ruled Ms Wyatt’s case should go before the family court.

Delivering the ruling, Lord Wilson said the court must have regard “to the contribution of each party to the welfare of the family, including by looking after the home or caring for the family”. Her claim was “legally recognizable” and not an “abuse of process.”

In a statement, Mr Vince branded the court’s decision “mad” and went on to say that “I feel that we all have a right to move on, and not be looking over our shoulders.” “This could signal open season for people who had brief relationships a quarter of a century ago.”

Mr Vince also commented that the time gap was “extremely prejudicial” and the fact there was “no paperwork in existence” had enabled the claim. It was “hard to defend yourself” under such circumstances, he said.

Outside court, Ms Wyatt’s lawyer Barbara Reeves said her client had been through a “very difficult time” and was pleased the High Court would now be able to consider her claim. “She looks forward to concluding the litigation as quickly as possible,” she said.

The remarkable ruling highlights the fact that there is no time limit for ex-spouses to apply to a court for a financial settlement following a divorce, and it reminds us that divorcing couples who want protection from such claims, even if they have no money at all, should obtain an order from the court at the time of the divorce, in which they both agree that there will be no further financial claims.

Magna Carta Celebrates 800 Years!

This past June marked the 800th anniversary of the sealing of Magna Carta, a charter which was signed by King John of England on 19th June 1215 at Runnymede. It remains one of the most important documents ever created and established for the first time the principle that everybody, including the king, was subject to the law.

Although Magna Carta contained 63 clauses when it was first granted, only three of those clauses remain part of English law. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous: it gave all free men the right to justice and a fair trial. Some of Magna Carta’s core principles are echoed in the United States Bill of Rights (1791) as well as in the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950).

Magna Carta has consequently acquired a special status as the cornerstone of English liberties. This is despite the fact that the vast majority of its clauses have now been repealed, or in some cases superseded by other legislation such as the Human Rights Act (1998). Magna Carta nonetheless retains enormous symbolic power as an ancient defence against arbitrary and tyrannical rulers, and as a guarantor of individual liberties.

BWL help sponsor future Wales rugby star

BWL are pleased to help sponsor the trip of a lifetime for an up and coming local rugby star. James Eynon is a 16 year old student at Olchfa Comprehensive School in Swansea. He has been selected to represent Wales in the World Touch Rugby Championships being held in Australia from 15th April to 4th May 2015. He is currently in the Ospreys U16 rugby team and plays for Swansea Uplands Rugby Club. He was a member of the Junior Touch Rugby Team who competed in the European Junior Touch Championships in August 2014, which were hosted in Swansea. His team won the European Junior tournament, beating England in the final. He was also selected as the player of the tournament; a huge achievement.

The trip to Australia is self-funding, meaning that James is responsible for his own flights and accommodation. BWL are proud to help sponsor James’ trip so that he can represent his country, and bring home another title. If there are other sponsors who would like to contribute, please contact our Paul Bevan for the necessary details.

WELL DONE JAMES AND COME ON WALES!

James Eynon

Parking Eye Limited v. Barry Beavis

A Court of Appeal ruling has confirmed what many motorists have feared in recent years, namely that parking charges imposed by private companies can be enforced against drivers and that they are not, as previously thought, unfair, unlawful, or disproportionate.  The upshot of this is that motorists should no longer simply ignore parking charges claimed by private companies as doing so could lead to civil procedure action being taken against them.

While it is true to say that sums claimed by private companies against those who breach the conditions of use at a car park remain demands for payment rather than automatically enforceable fines, the Court of Appeal found in the above mentioned case that the charges imposed in the circumstances were not extravagant or unconscionable. The court accepted the argument of the claimant that the charges were necessary in the circumstances and justifiable on the grounds that they discouraged people from overstaying at car parks which were intended to be used and enjoyed by all.

The previously preferred option of many motorists faced with charges levied against them by private parking companies was to simply ignore the letters in the hope that no formal action would be taken against them.  The guidance provided by the Court of Appeal in the case of Beavis however seems to suggest that the charges imposed by the parking companies are neither unfair nor disproportionate, and as such it is anticipated that many more cases will now be brought before the courts with the reported case of Beavis being cited as evidence in favour of the parking companies.

While each case will of course turn on its own facts, detailed consideration should now be given to such cases and it is likely that a blanket dismissal of charges will not result in a favourable restitution of the action for a defendant.

If you have received threatening correspondence from a private parking company or if you have or feel you may be made the subject of litigious proceedings, contact Beor Wilson Lloyd today for jargon-free, no hassle advice on how best to protect your position. Call us on 01792 655178 or email enquiries@bwl-law.co.uk. 

More reasons to get a Will!

On the 1st October 2014, the Inheritance and Trustees’ Powers Act 2014 came into force which has changed how a person’s estate will pass if they die leaving a surviving spouse or civil partner and without making a valid Will – dying ‘intestate’.

The legislation brings into focus the importance of making a Will to provide for the passing of your estate on death. It is now the case that married couples who have separated (but not divorced), and die intestate, risk leaving their estate to be inherited by their estranged spouse who would inherit more than any children of the deceased and, if there were no children, the entire estate. This is just one example of how the changes could affect the loved ones of those who have not made a will.

The Law Society has encouraged people to make a Will drafted by a regulated professional, such as a solicitor specialising in private client matters, and endorses Certainty – The National Will Register who urge people not only to write, but also to register, their Wills. Their research* this year reveals:

  • 28.7 million of the UK adult population (57%) are at risk of dying “intestate” (without any legal orders regarding their estate)
  • Nearly 78% of adults in their 30s and more than 68% in their 40s have no Will in place
  • Even those getting older are overlooking the importance of making a Will, according to the financial website unbiased.co.uk
  • More than half (54%) of those surveyed in their 50s and 27% of those in their 60s have left no official bequests
  • 68% of people expect to leave property valued at an average of £182,000 to someone on their death
  • 75% intend to leave as much as £51,000 in cash and 56% say they want to pass on assets such as paintings, jewellery and antiques worth around £22,000

* Source Certainty Unbiased survey July 2014

Don’t miss the opportunity to potentially safeguard your loved ones’ financial future! At BWL we provide a comprehensive range of private client services, to enable you to plan ahead and provide for your loved ones.  Call us today to discuss making a Will on 01792 655178