Category Archive: Latest News

1. Forfeiture Clauses – what are they and how do they work?

   June 20, 2022 9:29 am Leave a Comment

   A forfeiture clause is a common clause in a commercial property lease and allows the Landlord to terminate the lease prematurely where the tenant is in breach of their obligations.

   The terms of a commercial lease can be breached in many ways, such as a Tenant’s failure to pay rent; a change of use without permission; failing to repair the Property in accordance with the Lease; allowing a third party to occupy and many more.

   In most cases the breaches can be remedied quite easily, and the Landlord may allow the Tenant time to remedy the breach without taking further action, waiving his right to forfeit by allowing the breach to continue, or acting in a way that allows the breach to continue.

   However, some breaches would give the Landlord real cause for concern about the Tenant’s ability to fulfil their obligations under the Lease for the full contractual term, and so most commercial leases will contain a forfeiture clause which will allow the Landlord to forfeit the lease if the tenant breaks certain conditions.

   The most common reason for terminating a lease prematurely is non-payment of rent, the tenant has been made bankrupt, goes into liquidation or there is an insolvency arrangement such as administration or bankruptcy, or the Tenant has breached any other term of the Lease. Most modern leases should include a forfeiture clause setting out specifically that these are the reasons for forfeiture.

   Procedure

   If a right to forfeit arises, depending on the reason for the forfeiture, a Landlord must follow a statutory notice procedure before terminating the lease. In most cases a s.146(1) notice must be served upon the tenant which allows them time to rectify the breach, by setting out in the notice what the breach is, and if there is a possible remedy for that breach including a request to do so. However, the exception to this is non-payment of rent. Failure to remedy this breach by the tenant within a reasonable amount of time or a set time stated in the Lease, the Landlord is then within their right to exercise its rights to forfeit.

   Landlords Waiver

   When a right to forfeit has been made clear, it is imperative that the Landlord does not do anything that could waive that right. Waivers may occur if the Landlord knows of the tenant’s breach, does something that suggests that the lease continues to exist (for example, accepts or demands rent) and communicates that to the tenant.

   Types of Forfeiture

   There are two approaches open to commercial Landlords when a right to forfeit arises – peaceable re-entry or Court proceedings. 

   Peaceable entry

   This is where (subject to statutory limitations on the Landlord’s right to forfeit) the Landlord physically re-enters the property and changes the locks themselves (or by a third party such as bailiffs) or prevents the tenant entering and attaching notices of forfeiture.

   Court proceedings

   Forfeiture by court proceedings is where the Landlord issues proceedings for the forfeiture of the lease and the lease terminates upon the proceedings being served. However, the forfeiture will not be deemed effective for some time – during the period of the proceedings being served and the court confirming whether the forfeiture was effective, the Landlord is considered to have ended the lease and during this period cannot seek to enforce or rely on the Tenant’s covenants within the Lease.

   Relief from Forfeiture

   Upon the Landlord forfeiting the lease, a tenant (or a third party with an interest in the lease such as mortgagee) can apply for relief of forfeiture from the Court. The Court’s approach to granting relief depends on the type of breach and, the seriousness of the breach, the conduct of each party, whether the breach can be easily remedied and that is balanced against any loss suffered by the Landlord as against the potential loss by the Tenant if the relief was not granted. The lease will be reinstated if the Tenants application for relief is granted.  

   Effect of Forfeiture

   Once it has been ascertained that forfeiture has been “effected”, neither the Landlord nor the Tenant has any continuing liabilities under the lease but they do remain liable for any breaches that occurred prior to the forfeiture. The tenancy will immediately end and the Landlord is entitled to possession.

2. Residential Landlords – Did you know the rules on EPC’s are changing?

   June 7, 2022 9:51 am Leave a Comment

   As a Landlord, there are certain requirements regarding a Property’s Energy Performance certificate (EPC), which must be adhered to before a Property can be let.

   In 2018 the government introduced a minimum energy rating of “E” or above for all new tenancies granted from 1^st April 2018.

   Changes to the Minimum Energy Efficiently Standards were announced in 2021 which will affect Landlords from 2025 and this rule now applies to all tenancies, not just new tenancies or renewals. As a Landlord, if your Property does not have a valid EPC rating of E or above it cannot be legally let.

   After a government consultation in December 2020, changes were announced and it was proposed that by 2025 all rental properties will need an EPC rating of “C” or above. These new regulations will firstly be introduced to new tenancies, followed by a requirement that all tenancies should meet this criteria from 2028.

   The purpose of the new regulations is to make homes more energy efficient and reduce carbon emissions as part of the target to be net-zero by 2050.

   Landlords should also be aware that the penalty for not having a valid EPC will also be raised from £5000.00 to £30,000.00 from 2025.

   If you have any questions regarding the proposed changes please contact one of the Commercial Property Team on 01782 652300.

3. If you pay ground rent to Estate & Management Ltd, you should read this!

   May 12, 2022 9:04 am Leave a Comment

   There can be many issues with the legal aspects of leasehold properties, and one recent proposal will go some way to resolving problems caused by “doubling ground rents”.

   Doubling ground rent is where a ground rent payable under a lease, doubles over a relatively short period of time, usually every 10 or 15 years. Over a long lease this can mean that a very large amount of ground rent will become payable.

   Leases of with this type of clause in them are essentially unsellable and/or un-mortgageable. Usually the leases have to be varied to amend these clauses through a deed of variation, which can be costly and can take some time.

   Estates and Management Limited (E&M) are managing agents for a large number of freehold investment companies, and collect and administer ground rent on their behalf.

   Recently, E&M have written to the leaseholders of leases where the ground rent doubles more frequently than every 20 years offering to enter into a deed of variation on a voluntary basis, and to pay the legal costs of leaseholders.

   This resolves this problem with the leases, free of charge to the leaseholders, at a time more suitable and less stressful than when you are trying to sell or mortgage the property.

   If you receive a letter from E&M or similar management companies, please contact Tinsdills for advice on 01782 956123 or complete our contact form.

4. Top Tips for a Swift Property Sale Process

   April 22, 2022 10:10 am Leave a Comment

   Buying and selling houses is stressful.

   The rules and procedures when buying and selling houses are complicated and can often become a minefield for clients. Sometimes the professionals involved forget that the back story to the transaction is you making one of the biggest decisions and financial commitments of your life.

   Over the years, many attempted solutions to ease the process – like “Home Information Packs” for example – have been put in place, with varying degrees of success.

   Whether we like it or not, Covid has changed the market and the way that the service is delivered forever. The lack of housing stock combined with high demand and the momentum still retained from the lifting of lockdown restrictions means that matters can move very quickly in the first instance.

   In order to ensure the process of selling your property is as swift as possible, here are some top tips to keep in mind:

   • Where are the deeds? The Land Registry says that 87% of the land mass of England and Wales has a registered title. That means that 13% doesn’t have an electronic record of ownership and so needs old paper deeds to prove ownership. If a house has changed hands since 2003, the title to the property will be registered at the Land Registry and it is very easy for the solicitor to check this. In most cases title registration commenced with purchase transactions in the late 1980s.

   • If the title isn’t registered, and you need to produce the deeds, establish where they are. They could be with a bank or building society, as security for a mortgage or just for safe keeping, or with a firm of solicitors, perhaps even with your Wills. Locate these deeds and ask your solicitor to look at these to make sure that they are complete, include all of the land that you are selling, and that you won’t have a problem when you come to sell.

   • You don’t need to have a registered title to sell a property and it shouldn’t take any longer because of this. You don’t need to register your title before you sell.  You do, however, need to have some evidence of title and occasionally deeds are lost or destroyed. If you can’t find the deeds, speak to your solicitor regarding the restructure of the title at the Land Registry. This can take some time, even if the application to restructure is expedited by the Registry, and so you need to move quickly on this if you intend to sell.

   • If the title is registered, it may be subject to a restriction. This is a requirement that must be complied with before the purchase can be registered at the Land Registry. Typical restrictions involve a management company on a development where there are common areas to be maintained, and so if you pay any annual payment, there may well be a restriction on the title. Speak to your solicitor to see if there is any action to take at this stage regarding information that will be requested by your buyers’ solicitors regarding this during the course of the sale.

   • If you’re selling an apartment or leasehold house, ask the solicitor to look at the lease to ensure that its terms will be acceptable to any potential buyers. The law is in a state of change in this area and leases which were acceptable a few years ago may be problematic now. If any potential issues are resolved at an early stage, a prompt and cost-effective resolution may be achieved in anticipation of this being raised by the buyers. Also provide the solicitor with information regarding the present ground rent and service charge to see if any action should be taken with this information at an early stage.

   • If you’ve had works carried out at the property, please ensure that you can locate the relevant certificates for these works. This isn’t just planning permission, listed building consent and building regulations consent, but certification regarding replacement windows, gas installations, electrical work and multifuel appliances, like log burners. Make sure that you have all relevant guarantees to hand, and if you have solar panels that you have contacted the energy company to ask what their requirements are on a sale. If you can’t find this, ask your solicitor what action you should consider taking. If you have any form of indemnity policy speak with your solicitor to ensure that you are not intending to take any steps which would invalidate that policy.

   • If the property is less than 10 years old, ensure that you have the relevant structural guarantee documentation available, such as the NHBC guarantee and the local authority consents and supporting documentation for the construction of the property.

   • Finally, check with the solicitor how the move will affect your Will and if your Will needs to be updated in any event.

   In short, if you are thinking about moving house, speak to your solicitor at an early stage, to see what action they recommend so that you stay “ahead of the curve”, and head off any delays that could arise, whilst time is on your side.

   We recognise that getting you where you need to be is a team effort between you and us.

5. Solar Panels and “Rent a Roof”

   April 11, 2022 8:34 am Leave a Comment

   According to government information, nearly 1,000,000 properties have solar panels and, with the cost-of-living crisis and international events leading to a future reliance on renewable or green energy, the numbers are set to increase rapidly.

   There are 2 ways that you can have the benefit of solar panels and the energy payments that they generate.

   The first way is to buy the panels outright, sometimes with an extension on your mortgage. You need to check that your household insurance allows this, that your lender agrees to it and that the relevant building regulations documents, and where applicable planning permission, is obtained. You should also take early professional advice from a surveyor to ensure that the structural integrity of the property is not affected by the installation of the panels.

   If you own the panels, and you are considering selling your property, you should contact the Feed In Tariff provider, which for newer systems is known as the Smart Export Guarantee, to ascertain what their requirements are to transfer the benefit of the panels to your buyer. Your deeds won’t mention the panels and they will be included in the sale of the property.

   However, if you don’t own the panels, but lease them under a “rent a roof” scheme, there may be more complications on a sale, and it may be advisable to take legal advice to ensure that the legal position of the panels is as it should be. Under schemes such as these, the homeowner gets the free electricity generated by the panels but doesn’t get the benefit of the Feed in Tarif, which is paid to the owner of the panels.

   

   Rent a roof schemes are not as popular as they used to be, because the reduction of Feed in Tariff payments in 2019 made them less attractive as an investment; however, new schemes such as Solar Buy Back or Solar Equity Release may mean that arrangements like this make a comeback.

   The point being that as the leases for said schemes were usually for 25 years, there are lots of properties that still have this arrangement.

   The length of the lease creates the first potential issue, because leases of this duration must be registered at the land registry so that they are noted on your deeds. We have encountered several instances where this has not taken place, which means that before a sale can proceed, the lease has to be registered at the land registry. This isn’t particularly difficult or time consuming, and the advantage of the land registry’s expediting procedure can be used, but it is one more thing to add to the stress of moving house that could be avoided by taking early legal advice.

   Similarly, not all leases are the same, and some of the earlier leases may not be compliant with your buyers building society requirements. This is resolved by a deed of variation on the lease, which is time consuming and, in some cases, expensive. Again, taking early legal advice could avoid this issue.

   Finally, even though the panels are rented, you still need to find out what the owner’s requirements are, and any fees that may be payable on the sale of the property.

   At Tinsdills we have property experts who can help with all these matters and can provide you with practical advice to help, promptly, if any issues like this are encountered.

6. No Fault Divorce – New Divorce Law Changes

   March 30, 2022 2:48 pm Leave a Comment

   England and Wales are set to witness the biggest change to divorce law in a generation. From the 6^th April 2022, for the first time, “no fault divorce” will not only be available to all, but there will also be no alternative to “no fault divorce” allowing couples to file for divorce jointly and amicably.   

   The existing law on divorce dates back to 1973 which set out 5 reasons for divorce with “unreasonable behaviour” or “adultery” becoming the most common cited. So much so in fact, that it is now arguably part of our culture, but for many couples, seeking a divorce on equal terms under the current law can be difficult, and often causes conflict.

   For years, organisations such as Resolution have recognised this is issue and have been actively advocating for no fault divorce to be implemented, and at last it is finally here. 

   Many believe that by removing the necessity to attribute responsibility for the breakdown of a relationship will help to minimise conflict between parties.  Perhaps it will to a degree, although by large, the change to divorce law will not affect the great potential for conflict to arise over arrangements for children, property and money. 

   The new divorce process will take at least 6 months to complete, with a minimum period of 20 weeks between the start of proceedings and the application for a Conditional Order.  Since the introduction of on-line divorce in recent years, it had been possible to finalise old style divorces in a much quicker time period and for some, this longer process will cause further discord.

   Under the old procedure, notice of the issue of divorce proceedings is given to the Respondent by the Court as soon as proceedings are issued. However, under the new system, the Respondent will not necessarily be notified of the divorce straight away which might also lead to growing frustration. 

   As with the old-style divorce, all new applications will be made through an electronic portal. However, for fault-based divorces, this facility closes at 4pm on the 31^st March 2022 and the new divorce process will open on 6^th April 2022. 

   Therefore, for those needing urgent relief such as certain emergency Financial Orders, we would advise seeking legal advice at your earliest convenience, as it will still be possible to file a paper application between 1^st and 5^th April 2022. 

   For advice on divorce and separation, financial issues and children’s arrangements, Tinsdills team of expert solicitors are on hand and can offer a variety of support and guidance to suit your needs.  

7. Cyber Essentials Accreditation

   March 16, 2022 11:16 am Leave a Comment

   Tinsdills Solicitors’ have once again successfully achieved their Cyber Essentials Accreditation for the fifth consecutive year. The firm recently put their IT Systems through a gruelling testing process to ensure the highest levels of cyber security are maintained.

   Tinsdills are proud advocates of the importance of not only investing in the latest technology to improve the client experience and staffing productivity, but also investing in the upmost protection and training to identify potential cyber-attacks, online scams, and any other online threats.

   Jaki Cooke, Head of IT says, ‘Our systems have been rigorously tested to ensure that we meet the highest standard not only on paper but also in practise’

   ‘Cyber security is one of the biggest risk factors facing not only our business but also the clients that we act for on a daily basis. Achieving this accreditation can only enhance their confidence in our abilities to continuously protect their confidential matters.’

   The Cyber Essentials Scheme is a government backed scheme that certifies businesses who have taken the necessary steps to protect themselves against cyber security breaches. The assessment process requires organisations to demonstrate their active measures of protection through the use of “simulated cyber-attacks” and completing an in-depth questionnaire scrutinising its computing resources and security controls.

8. Important Changes to the Highway Code Coming into Force

   January 27, 2022 4:23 pm Leave a Comment

   Did you know that important changes to the Highway Code come into force on 29^th January 2022. 

   Last year the Government ran a consultation on proposed changes to the Highway Code and following that process, 8 new rules will be introduced along with 49 updates to the existing rules. 

   The purpose of the changes is to give protection to the most vulnerable road users.  A hierarchy of road users will be created that ensures that those who can do the greatest harm have the greatest responsibility on the road to reduce the danger that they pose to others.  However, everyone still has a responsibility to be considerate of all road users.

   This hierarchy will have pedestrians, especially vulnerable pedestrians such as the elderly and children, at the top of the pyramid as they will be classed as those who can cause the least harm.

   Cyclists, horse riders, motorcyclists and cars will then follow with vans, HGV’s and buses at the bottom of the list, as they have the potential to cause most harm.

   Amongst the changes, drivers will be told to give priority to pedestrians and cyclists and told to stop for people crossing the road, even if they are not at a pelican or zebra crossing. 

   Cyclists will be given priority at junctions when travelling straight ahead and are being told, where appropriate, to ride in the centre lane to make themselves as clearly visible as possible on quiet roads or streets, but to move to the left to enable a faster vehicle to overtake them if they come up behind them.

   As a firm, we welcome these changes.  Anything that can hopefully reduce the number of accidents, especially those involving vulnerable road users, has to be worth pursuing.

   At Tinsdills we have seen the devastating impact of accidents involving vulnerable road users and, as a result of these changes, we will hopefully start to see less of them.

   More information regarding the changes to the Highway Code can be found here: The Highway Code

9. People are the focus of expansion and evolution at Tinsdills

   January 7, 2022 10:13 am Leave a Comment

   Leading full-service local law firm Tinsdills Solicitors add power to the team, with the introduction of four new Solicitors, three Legal Assistants, two Secretaries and a Client Services Advisor. With branches in Hanley, Newcastle-under-Lyme, Leek and Sandbach, the new additions mean that each branch has sector-specific solicitors and strong support in situ, to provide undivided attention across their full breadth of legal services.

   A customer-centric local approach is the hallmark of this long-established law firm. This exciting growth will provide Clients with continuity of contact, in the full knowledge that they have entrusted their legal matters to a solicitor specifically experienced in their field.

   The expanding workforce now includes two new appointments to the Hanley office of Grace Webster, a Wills Trust and Probate Solicitor and Michelle Hansell a Residential Property Solicitor, both bringing a wealth of knowledge and fresh perspective to the business.

   Likewise, the Sandbach office has also gained two new residents, Helen Jaidy, an experienced Residential Conveyancer and Laura Hartley a Senior Solicitor specialising in Wills, Trusts and Probate who has recently relocated to the area. With incredible track records the pair bring leading expertise and innovation to their respective departments.

   “Emerging from the pandemic has led to increased instructions across all departments” comments Managing Director, Peter Hamilton. “This upturn in demand has not only resulted in the expansion of our teams, but also a shift in the way we organise our solicitors and support staff at every location. Our business is built around people, and we are responding to the needs of both our clients and our colleagues. We have adapted our people policies to introduce a more flexible way of working. Tinsdills is a long-established firm, however it is incredibly important that the firm evolves its structure and ways of working to stay current, relevant and people centric.”

   Alongside the team expansion, the firm has introduced a hybrid working policy which provides certain roles within the business, the option to work up to 40% of their hours from home. Thanks to improved technologies, efficiency and ongoing client support, the firm has been able to implement a more permanent policy that supports better work life balance, whilst ensuring that staff are available for client facing meetings and project collaboration during core working hours. The new approach recognises the positive impact that human interaction and time management empowerment has on team morale, mental health and overall wellbeing. It also acknowledges the success that distanced home working had on work efficiency and lifestyle during lockdowns.

   Newly appointed Residential Conveyancer, Helen Jaidy concurred, “Tinsdills may be a leading law firm, but you are treated as an individual rather than a number. My first interview was with two senior female members of staff, and it was so refreshing having an interview where we openly discussed the pressures of being a working parent and having a career. I left the interview wanting to be part of this firm.”

   When asked about the future at Tinsdills, new addition Grace Webster, Solicitor within the Wills, Trusts and Probate Department, concluded, “The future is exciting and holds great prospects for all the team, given the commitment to an adaptable, flexible workplace. We are always keen to embrace fresh ideas and invariably hold our clients at the core of all that we do.”

10. When does a residential transaction become commercial?

    December 22, 2021 9:48 am Leave a Comment

    Kelly Myatt, Director and solicitor specialising in residential, commercial and agricultural transactions is often asked to deal with “in-between” jobs. 

    These types of jobs on first appearance seem residential in nature, however, hidden in the depths of the detail can often be commercial elements.

    An example would be the purchase of a residential property situated on a large plot of land. The plot of land and arguably the existing dwelling has potential for development.  What first appeared to be a straightforward purchase of a residential property now has a fresh direction. Dealing with a property of this nature, we would request, review and report on replies to both residential and commercial standard enquiries. Due diligence would be carried out, not only on the existing dwelling, but also on the potential development of the plot, including whether any planning permissions have been secured, and if so, of what nature and to what extent. We would also review and assess to what extent any planning permissions have been implemented or commenced by the current owners. Furthermore, search results would also be considered carefully to ensure there is no adverse impact on any future development and/or plot sale.

    Thinking ahead, once purchased and if developed or additional dwellings are built on the land, we could have a site to “set up” which would turn into plot sales of the individual dwellings. Having first-hand knowledge of the site in this instance is incredibly beneficial and can save time and expense.

    A further example of a “hybrid job” could be the purchase of an HMO (Home in Multiple Occupation). A property used by the occupants as a home but owned by the registered proprietors as a commercial investment. The purchase of an existing or potential HMO has both residential and commercial elements to be carefully considered including planning requirements, health & safety, and fire risk requirements. Again, due diligence would be carried out on both the residential and commercial elements of the property and a full and comprehensive report prepared so that the buyer has the full picture before committing to purchase.

    Aside from the legalities of the transaction itself, is the Stamp Duty Land Tax (SDLT) position. Whilst we are not tax experts we do submit and file returns on behalf of our clients and therefore have a basic understanding of the difference between residential and commercial transactions for SDLT purposes. The devil is in the detail. There is a lot of guidance available from HM Revenue and Customs to assist in ascertaining whether residential rates of SDLT or commercial rates of SDLT apply to the transaction. In some circumstances, we will advise that you take specialist SDLT advice if we consider it appropriate to the type of transaction.

    In short, it is often difficult to decipher what type of transaction a job will be until you are into the detail of it. Kelly’s background in both residential and commercial transactions can bring unique experience and perspective to the job which could save time and cost. Feel free to contact Kelly on 01782 652323 for further detail.