4 King’s Bench Walk
2 Experts
52 Contributions by 4 King’s Bench Walk Experts
Q&As
The Family Court holds jurisdiction, under section 23 of the Matrimonial Causes Act 1973 (MCA 1973), to make orders for periodical payments in favour of a party to a marriage, or in favour of a child of the family, for that party’s own maintenance or for the maintenance of a child. This power is, nevertheless, subject to the provisions of the Child Support Act 1991 (CSA 1991), and CSA 1991, s 8 correspondingly and accordingly limits the court’s powers to make child maintenance orders...
Family
Q&As
The Electronic Communications Code (the Code)
The Electronic Communications Code (the Code) appears in Schedule 3A, Part 1 to the Communications Act 2003 (CA 2003) and has applied in present incarnation since December 2017. Where a prior agreement has lapsed after 28 December 2017 and lacks protection under Part II of the Landlord and Tenant Act 1954 (LTA 1954, ss 23–46) — in which event the LTA 1954 process must be used instead of the CA 2003, Sch 3A, Pt 5, para 33 route (see Vodafone v Hanover Capital) — either party is entitled to ask the tribunal to vary or replace the agreement by making an application seeking modification or replacement of the agreement...
Planning
Q&As
This Q&A is relevant where there is no surviving joint owner of the property
Where a joint owner survives, they can take all steps needed to obtain possession. In the absence of a surviving co-owner, an executor’s role is to put into effect the instructions left by the deceased in their Will. Ordinarily, to implement those provisions, the executor will first marshal the estate, then meet what is owed, and finally distribute what remains to beneficiaries in line with the Will’s terms.
Gather in all assets;
Settle the liabilities; and
Distribute the Estate’s proceeds as provided by the Will.
To facilitate this, the executor must be recognised as legitimate, which is achieved through a grant of probate. Save where the estate is straightforward and of minimal value (usually under £5,000), a grant will be needed to secure the release of funds from banks and
Private Client
Q&As
An easement is a right enjoyed by one piece of land (the dominant tenement) over adjacent land (the servient tenement). There are numerous varieties of easement; rights of way are the best known, yet they cover rights to take water, and rights relating to storage, parking, access and the like. Easements are attached to the land and are registrable, which means they will bind later owners of the servient land and will continue to benefit the dominant land even following a change in ownership, making them proprietary rights, as opposed to a licence personal to a landowner from time to time...
Property
Q&As
Section 164 of the Highways Act 1980 (HiA 1980)
It provides that where land adjacent to a highway has a fence built with barbed wire, or bearing barbed wire on or within it, and the wire amounts to a nuisance to the highway, the highway authority may, by serving notice on the occupier of the land, require that the nuisance be abated within a period of between one and six months from the date of the notice...
Local Government
Q&As
Under the Landlord and Tenant Act 1987 (LTA 1987), some eligible tenants of properties are given a right of first refusal. In other words, where a landlord intends to dispose of its interest in the property (whether as freeholder or superior leaseholder), it must first offer that interest to those qualifying tenants first...
Property Disputes
Q&As
Interim possession order (IPO)
An interim possession order (IPO) is a remedy that can be sought solely in relation to trespassers, and non-compliance—by not vacating the premises within 24 hours—constitutes a criminal offence (Criminal Justice and Public Order Act 1994, s 76). This extends to anyone who departs and then returns (CJPOA 1994, s 76(4)). Procedural requirements for applications are set out in CPR 55.21–28...
Property Disputes
Q&As
It can sometimes occur that an employee has more than one employer, and their contract of employment expressly confirms this. Joint employment should be distinguished from arrangements like secondments, where the sole employer lends their employee’s services to a third party, or from sole employment where the contract terms permit the employer to direct an employee’s work to a third party. A joint employment contract should plainly set out the basis on which each joint employer exercises control over the employee, and may provide for an indemnity between the joint employers in the event of an employment tribunal claim...
Employment
Q&As
An Energy Performance Certificate (EPC)
An EPC assesses how energy efficient a building is, scoring it from A to G, with A representing the greatest efficiency. It is illegal for a landlord to let a commercial property with an F or G efficiency rating unless a valid exemption is in place. A landlord must hold an EPC in these situations:
when renting out or selling the premises;
when a building that was under construction is completed; or
when changing the number of areas intended for separate occupation and this includes providing heating, air conditioning or ventilation systems.
An EPC is valid for ten years. Certain exemptions apply, including both short and long tenancies...
Property
Q&As
Forfeiture
Forfeiture is a contractual mechanism that permits a landlord to terminate a tenancy when the tenant breaches the tenancy terms. This can be achieved either by peaceable re-entry to the property or by starting court proceedings. The tenant retains the ability to seek relief from forfeiture. This Q&A does not clarify whether the lease in question is commercial or residential. For commercial lettings, a landlord cannot exercise forfeiture without first serving a notice under section 146 of the Law of Property Act 1925, setting out the breach and requiring the tenant to remedy it. However, no section 146 notice...
Property Disputes
Q&As
Section 3 of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995)
Section 3 of the Landlord and Tenant (Covenants) Act 1995 states that, for any tenancy to which the LT(C)A 1995 applies, every landlord and tenant covenant attaches to and is inherent in the entirety of the demised premises and their reversion, as well as in each and every part, and on an assignment of the whole or any part of the premises or of the reversion, those rights and obligations pass in line with the section, and will do so automatically on such assignment. This signifies that covenants are not, save for specified exceptions, personal as between the parties; rather, they relate to, and run with, the land...
Property
Q&As
Part 5 of the Localism Act 2011 (LA 2011) introduced a range of measures concerning community empowerment. Among these, chapter 3 specifically obliges a local authority to keep a register of land within its area regarded as land of community value (LA 2011, s 87)...
Local Government
Q&As
Chapter II of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993)
Under Chapter II of LRHUDA 1993, a qualifying tenant may secure a further lease of a flat by duly serving a notice on their landlord pursuant to LRHUDA 1993, s 42, with the term 'landlord' defined by LRHUDA 1993, s 40. Section 40 stipulates that, for a lease held by a qualifying tenant of a flat, the landlord is the person who owns the interest in the flat that stands in reversion on expiry of the tenant’s lease and which comprises either a freehold estate or a leasehold estate of sufficient length to enable that person to grant a new lease in accordance with LRHUDA 1993. Consequently, the party who is the immediate landlord may, in some circumstances, not be the 'landlord' for the purposes of LRHUDA 1993...
Property Disputes
Q&As
Commercial leases commonly bar tenants from carrying out alterations or enhancements to the let premises unless the landlord agrees. In addition, tenants are typically required, on expiry of the term, to hand back the property in the condition it was in at the outset. As a result, if consent for alterations is given, an obligation to reinstate will generally be imposed as a pre-condition. The Landlord and Tenant Act 1927 (LTA 1927) sets out a number of provisions concerning improvements...
Property
Q&As
Form LTBT1
Form LTBT1 is prescribed by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003, SI 2003/3096 (the Order). Where the parties intend to contract out of, or exclude, sections 24–28 of the Landlord and Tenant Act 1954 (LTA 1954), the Order stipulates that particular steps must be completed before any such agreement is concluded. Landlords frequently seek the flexibility of a contracted‑out lease, as it allows the tenancy to end on expiry of the term without the tenant acquiring a right to a new lease. Under the LTA 1954, the former position required court approval for a contracted‑out arrangement (the Pre‑2004 Procedure). The Order replaced that regime with a new process that obliges the landlord to serve a warning notice in, or in a form substantially similar to, that set out in SI 2003/3096. This notice must be given before the lease is
Property
Q&As
A mortgage by demise
A mortgage by demise is an uncommon variety of mortgage whereby the borrower demises the property to the lender as security for a loan of money. Its arrangement is comparable to a lease, but for an exceptionally long duration (typically 3000 years). The mortgage will contain provisions for redemption. In the ordinary course, upon settlement of the principal amount and the interest, the mortgage will determine and the demised term thereby comes to an end...
Property
Q&As
Under sections 101 and 103 of the Law of Property Act 1925 (LPA 1925), a mortgagee in possession is empowered to dispose of the property, usually once possession has been obtained; however, the parties may by agreement contract out of this statutory power. When the power of sale is exercised, the mortgagor’s equitable right to redeem is brought to an end, and the mortgagee holds any surplus sale proceeds on trust for the mortgagor and other interested parties...
Property
Q&As
The Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013)
confirms that marriages between same-sex partners are lawful and effective. Under s 9 of M(SSC)A 2013, civil partners in England and Wales can convert their partnership into a marriage, should they wish to do so. That conversion terminates the civil partnership, with the resulting marriage treated as having existed from the date the partnership was created. Before M(SSC)A 2013 came into force, same-sex marriages formed overseas were recognised in England as civil partnerships, falling within the category of ‘overseas relationships’ under the Civil Partnership Act 2004, rather than as marriages...
Family
Q&As
A nil-rate band discretionary trust
A nil-rate band discretionary trust is a common method for reducing inheritance tax. It typically concerns property held by two people (most often a husband and wife as co-owners). They must own the home as beneficial tenants in common, meaning that any existing beneficial joint tenancy has to be broken. Each then executes a Will so that their share of the property, up to the inheritance tax nil-rate band, is directed not to the spouse but into a discretionary trust. The usual discretionary beneficiaries are the surviving spouse and the children. Instead of the survivor taking outright the other’s share of the property (whether by survivorship where it was a beneficial joint tenancy or by a legacy), the trust retains that share and, on the death of the survivor, the portion within the trust does not fall into the estate for
Private Client
Q&As
A Post-Employment Notice Pay (PENP) calculation
It uses a set calculation that lets employers identify the taxable portion of a severance package on termination of employment when the basic salary actually paid falls short of what would have been earned had proper or full notice been worked. The method takes basic pay, multiplies it by the remaining notice days, then divides by the number of days in the relevant pay period, before deducting in full any amounts paid net of tax, except for holiday pay and termination bonuses. The requirement to perform a PENP calculation stems from reforms that took effect from 6 April 2018, making all such payments in lieu of notice chargeable to tax and national insurance...
Employment
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