Legal Q&A

Forfeiture Forfeiture refers to a landlord’s legal power to end a lease following a tenant’s default. A landlord can lawfully bring the tenancy to a close by forfeiture only where there: exists an express contractual right in the lease itself, ie the tenancy agreement contains a forfeiture clause permitting the landlord to lawfully forfeit in relation to the tenant’s alleged breach......

Was a tenancy created with this agreement? Because the term is under three years, a lease can still indeed be valid even though it was not executed as a deed. Therefore, a tenancy could have come into being based, provided there is exclusive possession (see commentary Halsburys Laws of England, 8. Nature of grant of exclusive possession), certainty of term, and payment of rent. The tenancy might also have been protected by the Landlord and Tenant Act 1954 ( LTA 1954) on the footing that it was a fixed term lasting more than six months in duration......

Can a claim be made against a company for trading whilst insolvent? Wrongful trading There is no standalone claim triggered merely by a company ‘trading whilst insolvent’, even though that phrase is commonly used. What is usually intended is a ‘wrongful trading’ claim. This cause of action arises under section 214 of the Insolvency Act 1986 ( IA 1986) and, at present, applies only where a company has gone into an ‘insolvent liquidation’. IA 1986, s 214(6) defines this as the company entering liquidation at a time when its assets are insufficient to meet its debts, other liabilities, and the expenses of the winding up. The key point is that a wrongful trading claim can only be brought by the company’s liquidator; it is not a claim that a creditor may advance against a company, whether or not insolvency proceedings are on foot. The claim is...

If the claimant qualifies as a protected party within the Court of Protection’s remit, fees imposed by that Court, both historic and prospective, may properly form part of the claim made. Further charges will also be incurred where a deputy is appointed to manage the claimant’s property and financial affairs. These charges and expenses can be set out within the schedule of past and future loss and damage as distinct heads of damage......

A charitable incorporated organisation ( CIO) refers to a type of legal body accessible exclusively to charities. A CIO is regarded as created only after registration has been completed with the Charity Commission......

This Q& A relates to commercial property References to services are taken to mean the standard primary utilities, namely drainage and water, electricity, gas and oil. As a matter of good practice, arrange for meter readings to be taken for each applicable supply on completion. Where there is any worry that the seller might default on utility charges run up before completion, the contract should contain a clear obligation requiring the seller to indemnify the buyer for those liabilities specifically......

Termination rights within a business contract When assessing termination rights in a business contract, it is essential to identify the various grounds for bringing the contract to an end. For instance, distinguish between ending for breach and termination without cause. You should also review how the termination clause interacts with other remedies and terms within the contract. Contractual provision for termination The Practice Note: Termination and expiry of contracts outlines the law, guidance and practice on ending an agreement, including the legal and practical implications of the route selected to conclude the agreement, whether the termination arises under an express termination provision, by rescission of the agreement, or due to a breach of contract. That Practice Note indicates it is commonplace for parties to negotiate terms that specify when an agreement may end, such as allowing termination on notice by either party. There is no general bar on a...

See Practice Note: The meaning of ‘children’ in Private Client and Chapter 75 Adopted children: Williams on Wills. It is prudent to note carefully how using the term ‘children’ shapes, in practice, the practical effect of any gift left to children. At common law, a reference to children was presumed to mean legitimate offspring only; by definition this excluded illegitimate and adopted children as a matter of course......

Discretionary power objects within a trust have only restricted rights...

The investment powers and duties of bare trustees It is sometimes unclear precisely where the investment powers and responsibilities of bare trustees begin and end. A bare trust arises when a trustee owns assets for a beneficiary who is of full age and has mental capacity. In strict terms, the trustee’s role is passive: to safeguard trust assets and pass them to the beneficiary as and when instructed. Yet, in reality, a trustee may agree to take on tasks beyond this remit, particularly if the trustee is a close relative of the beneficiary......

The Energy Performance of Buildings ( England and Wales) Regulations 2012 ( EPC Regulations), SI 2012/3118 The Energy Performance of Buildings ( England and Wales) Regulations 2012 ( EPC Regulations), SI 2012/3118 have applied since 9 January 2013. They place specific duties on owners of buildings they plan to sell or let to third parties. They implement Directive 2010/31/ EU of the European Parliament and of the Council dated 19 May 2010 on the energy performance of buildings. It is useful first to consider what is meant by a building under the EPC Regulations, SI 2012/3118. Under reg 2(1), a building is a roofed structure with walls where energy is used to regulate the indoor climate, and this will generally also cover a building unit within that building. The same regulation provides that a building unit is a section, storey or apartment within a...

BREXIT At 11pm ( GMT) on 31 December 2020—known as ‘ IP completion day’—the transition/implementation period entered into following the UK’s withdrawal from the EU came to a close. From that point onwards, key transitional arrangements came to an end and wide‑ranging changes started to take effect across the UK’s legal regime. This document provides guidance on subjects affected by these changes. Before continuing your research, see: Brexit and financial services: materials on the post‑ Brexit UK/ EU regulatory regime [ Archived]. This Q& A assesses the impact of Brexit on passporting in the insurance sector, outlines the options available to insurers to continue to access the European Economic Areas ( EEA), and highlights the factors for insurers to take into account in their contingency planning. This Q& A is produced in partnership with Clare Swirski at Clifford Chance. What are the main aspects of...

There are two lines of reasoning for how Brexit could shield the UK from the Financial Transactions Tax ( FTT) plans. The first is a policy-based case: the EU states that remain may shy away from a levy that would divert activity from the bloc towards a nimbler, post- Brexit UK, and so abandon the plans. The second, a narrower technical case, is that UK firms would fall outside the FTT once the UK is outside the EU. At present, neither case is especially strong, though the policy rationale appears the more persuasive of the pair to date overall......

We have taken it that, because communal areas are mentioned, the property in question is a block of flats. For the first two years after completion of the initial sale of a new-build property, defects cover is supplied, under National House Building Council ( NHBC) Buildmark, by the builder, who is responsible for putting right any faults that arise in the property and that then fall within the scope of the policy......

The nature of joint and several liability As outlined in the Practice Note on joint, several, and joint and several liability, joint and several liability arises when two or more parties to the same contract give a promise to the same person, while, at the same time, each of them separately makes that identical promise to that same person, within the same contractual arrangement......

When is grossing up required? For guidance on when grossing-up is needed, see Practice Note: Grossing up and partly exempt estates, particularly the section entitled ' When is grossing up required?'. Note that on death, if the residuary estate passes wholly to non-exempt beneficiaries, grossing up does not arise, whether or not any specific legacy is tax-free or chargeable. Where a specific legacy is tax-free, the nominated sum or item is delivered as given and the relevant IHT is paid from the estate in the usual manner; the residuary estate is then calculated. If grossing up applies and the combined amount of all specific gifts (both chargeable and exempt) exceeds the value transferred, i.e. the free estate for IHT, section 37(2) of the Inheritance Tax Act 1984 operates to reduce specific gifts so far as required to bring them down to the value...

Anyone seeking to acquire title to registered land by adverse possession, who cannot demonstrate 12 years’ possession before 13 October 2003, may apply once they have completed ten years in possession: para 1 of Schedule 6 to the Land Registration Act 2002 ( LRA 2002). The registrar will then serve formal notice on the registered proprietor, who can either: consent, or fail to reply at all, in which event the applicant will be entered as the registered proprietor; or serve a counter-notice opposing the application ( LRA 2002, s 73(1)) and/or require the matter to be determined accordingly under LRA 2002, Sch 6, para 5......

In occupational disease matters, it is common that the claimant was employed many years ago by an entity that has ceased trading, changed its name, or shifted liabilities within intricate corporate groups. Defence solicitors may challenge the identity of any proposed defendant within their defence, and resolving such questions well before the commencement of proceedings is always desirable. Accurately naming the parties to the claim from the outset is particularly important in order to avoid incurring unnecessary costs later on, for example in having to discontinue against a party and/or amend the claim form, and to prevent any potential problems in respect of limitation......

Clare Ambrose, Twenty Essex The clear benefit is that the hearing can proceed and the dispute be determined, which is the tribunal’s fundamental objective. The tribunal’s obligation to be fair to both sides does not compel an in-person hearing; if suitable arrangements permit the hearing to happen, that will be a weighty factor in favour. There is also a possible gain in cost efficiency: although premium technology may incur expense, savings on hearing venues and travel and hotel accommodation could be substantial. Virtual hearings remain relatively novel, so practice is evolving to manage practicalities and logistics across the board. The range of technological solutions is broad and warrants careful review and thorough investigation by the parties involved. For the hearing to run smoothly, every participant in the arbitration should trial their equipment in the precise location from which their virtual hearing will (for each of them) be...

For the purposes of this Q& A, we have not taken into account the EU– UK Trade and Cooperation Agreement ( TCA), as it is not directly enforceable; it is for the UK to give effect to its terms (insofar as not already addressed by the European Union ( Future Relationship) Act 2020). For further detail, see News Analysis: Implementing the TCA—business immigration implications. As the EU citizen employees fall outside the EU Settlement Scheme and are not eligible for a frontier worker permit, the main immigration options to review are: Intra- Company Skilled Worker Visitor T5 International Agreement Worker Each category is discussed in more detail below. Intra- Company routes The Intra- Company routes allow organisations with connected overseas entities to transfer certain staff to their UK offices. From 1 January 2021, these routes cover EEA and Swiss citizens as well as non- EEA...