Legal Q&A

This is a ‘new’ lease under the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Accordingly, it is presumed that the former tenant remains liable for arrears pursuant to an authorised guarantee agreement ( AGA) (in relation to which, see Practice Note: Lease covenants—liability after assignment of a lease or its reversion), and that liability is subject to the provisions of LT( C) A 1995, s 17 (which has been confirmed as not relevant to this Q& A; if required, see Practice Note: Former tenants, guarantors and overriding leases). Upon discharge, the bankrupt is released from all bankruptcy debts under section 281 of the Insolvency Act 1986 ( IA 1986)......

Under the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016), two categories of occupation contract exist: secure and standard. Standard contracts can be fixed term or periodic, whereas secure contracts are always periodic; see RH( W) A 2016, ss 1 and 8. Generally, an occupation contract with or adopted by a community landlord (as defined in RH( W) A 2016, s 9) will be secure, and one with or adopted by a private landlord (as defined in RH( W) A 2016, s 10) will be standard. This reflects the Act’s general rule, applying to such occupation contracts......

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......

The court's role when considering a draft financial consent order When a draft financial consent order is presented for approval, the court does more than merely endorse what is put before it. It is obliged to examine the proposed terms and, relying on the details set out in the parties’ statements of information, may still seal an order in the agreed form, unless it has cause to suspect there are further circumstances that merit enquiry. The court’s discretion, preserved by the Matrimonial Causes Act 1973, always applies and is not displaced. Clients should be made aware of this position and cautioned that it cannot be guaranteed the court will approve the order (see Pounds v Pounds)......

Section 28(3) of the Matrimonial Causes Act 1973 ( MCA 1973) places a near-complete prohibition on the court’s power to consider any application issued post-remarriage. That restriction is limited by the phrase ‘by reference to the grant or making of that [italics inserted] decree or order’. Yet, once a final order/decree absolute is made or granted in respect of (in this instance) the husband’s petition, there remains no continuing marriage to which the wife’s initial petition can thereafter be advanced or otherwise progressed by her......

Section 38 agreements These agreements fall under section 38 of the Highways Act 1980; refer to Practice Note: Highways—adoption agreements. There is no statutory route by which agreements can be ended or ‘cancelled’. However, a section 38 agreement may, in principle, be altered by a deed of variation, but this requires consent of all parties to the original agreement......

Limitation issues when enforcing a judgment Under Section 24(1) of the Limitation Act 1980, proceedings to rely upon any judgment cannot be commenced after the expiry of six years calculated from the date on which that judgment initially became enforceable for enforcement purposes......

Restriction and successor covenant How compliance with an overage deed is achieved will naturally hinge on its specific terms. Nevertheless, it is probable the overage beneficiary’s right to receive overage is safeguarded by a restriction noted on the proprietorship register, together with an obligation on any incoming purchaser to enter a positive covenant requiring them to observe and fulfil the provisions of the overage deed (a ‘successor covenant’)......

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......

Legal ownership of a property in England and Wales as joint tenants Holding legal title to a property in England and Wales as joint tenants means each proprietor owns the undivided whole, and if one dies, the survivor automatically becomes the sole owner (and where there are more than two legal owners, the successively smaller number of survivors does so, until only one remains). This is called the doctrine of survivorship. No transfer takes place and the co-owner’s interest does not form part of their estate; rather, that interest is extinguished. Legal joint tenants who co-own hold the property’s beneficial interest on trust for the beneficial owners. The starting position is that the legal joint tenants are also the beneficial owners in the ordinary course of ownership......

Pre-completion transaction rules ( PCT rules) The pre-completion transaction rules ( PCT rules) comprise several defined terms. For full further detail about them, please consult Practice Note: SDLT—pre-completion transactions— Defined terms under PCT rules......

Dynamic Purchasing Systems A Dynamic Purchasing System ( DPS) enables a contracting authority to acquire goods, services and works needed on a recurring basis without running a full public procurement exercise for every individual purchase. It provides a route to buy regularly required items efficiently while remaining compliant. A DPS is intended for sourcing common-use items that are widely available on the market and satisfy the contracting authority’s specifications. Further reading Practice Notes: Introduction to public contracts procurement and Introduction to framework agreements and dynamic purchasing systems Crown Commercial Service ( CCS): Dynamic purchasing system guidance Under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, any authority setting up a DPS must follow the rules specified and cross‑referred in PCR 2015, SI 2015/102, reg 34. In keeping with all procedures under PCR 2015, SI 2015/102, contracting authorities should also adhere to the core...

For the purposes of this response This response proceeds on the basis that the divorce application was issued on or after 6 April 2022. Where a conditional order exists in divorce proceedings, the respondent may apply on notice for a final order, using the Part 18 route under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, once three months have elapsed from the earliest date the applicant could have applied ( Matrimonial Causes Act 1973, s 9(2); FPR 2010, r 7.20). When determining such an application, the court retains discretion over whether to make the conditional order final (see Smith v Smith; Dart v Dart; Wickler v Wickler; Re G ( Decree Absolute: Prejudice); Thakkar v Thakkar). The court’s options are to grant the final order, rescind the conditional order, order further inquiry, or otherwise dispose of the case as it thinks fit ( MCA...

Companies may face differing SDLT rates when purchasing various categories of property, including residential, non-residential (commercial premises), or mixed-use assets, depending on the nature of the acquisition......

Paragraph 7(2) of Schedule 4 to the Electricity Act 1989 ( EA 1989) states that: When a right granted by a wayleave is exercised and damage is caused to land or moveables, any person with an interest in that land or those moveables may claim compensation from the licence holder for the damage. Likewise, where using such a right disrupts someone’s enjoyment of any land or moveables, that individual may recover compensation from the licence holder for the disturbance. The EA 1989 empowers entities permitted to generate, transport or supply electricity to obtain a wayleave to place an electric line on, under or over private land, together with access rights for inspection, maintenance and replacement......

From 1 October 2011, the majority of private sewers and lateral drains that, as at 1 July 2011, connected to a public sewer were automatically transferred by default to the sewerage undertaker, save where an appeal succeeded. Build over agreements are presently made between the water services company and the property owner; in the past, such agreements were concluded with the relevant local authority......

Trustees frequently seek to limit personal liability when entering a deal (here, a transfer). Whether a purchaser agrees is subject to negotiation. In this scenario, the exposure for the second trustee appears slight, as they are disposing of just one asset, so they might be willing to abandon that condition. The purchaser must be satisfied that the trustee has been properly appointed and is authorised to give a valid receipt for the sale monies so that any equitable interests are overreached......

This Q& A presumes the buyer is an individual...

Response to appeal Under the Employment Appeal Rules 1993 ( EAT Rules), SI 1993/2854, rule 6(2) provides that a respondent who intends to oppose an appeal must lodge with the Appeal Tribunal a written answer in accordance with, or broadly following, Form 3 contained in the Schedule to these Rules, setting out the grounds on which they rely. Nevertheless, where the respondent seeks to rely on any ground that mirrors a ground adopted by the employment tribunal when making the judgment, decision, declaration or order under appeal, it is sufficient simply to say so in the answer, and it shall be sufficient to state that fact in response. For further details, see Practice Note: Responding to an appeal......

At the outset, it is essential to recognise that the approach to waiving claims varies according to whether the settlement is concluded by a COT3 agreement ( Form COT3) facilitated by Acas, or by an agreement made under section 203 of the Employment Rights Act 1996 ( ERA 1996) with confirmation from an independent legal adviser. The distinction is material. In the case of a settlement agreement pursuant to ERA 1996, s 203, the position is plain and uncomplicated. It admits of little ambiguity in practice. Regardless of any express wording, such an agreement cannot validly prevent a claimant from pursuing a later victimisation claim that stems from their having brought the original discrimination proceedings. That outcome follows from ERA 1996, ss 203(1) and (3)(b), which nullify any element of a settlement that does not pertain to the specific...