Legal Q&A

Under the Capital Funding Guide issued by Homes England, where a development lies within a designated protected area ( DPA) and benefits from grant, the registered provider ( RP) granting a shared ownership lease must include one of two provisions: limit staircasing to a maximum of 80%; or if staircasing beyond 80% is permitted, require the leaseholder to sell their share back to the landlord (or a nominee that is also an RP) at market value when they wish to sell. In certain cases, a local authority can seek a waiver of these conditions from Homes England where the supply of shared ownership homes is no longer constrained. Notwithstanding guidance suggesting one of the above clauses is mandatory for every shared ownership lease in a DPA, our understanding is that the applicable regulations do not impose this where the site has not...

If a business claims to hire and remunerate an individual with a wage to reduce the tax burden of the business itself or a director/shareholder, while the individual in reality undertakes no work and supplies no services, this would appear to constitute tax evasion. Where a solicitor knows this is happening, they should adhere to the procedures prescribed in the firm’s policy on preventing the facilitation of tax evasion in such circumstances......

Pursuant to section 21B(3) of the Landlord and Tenant Act 1985 ( LTA 1985), a tenant may withhold paying a service charge if the demand is not sent with the summary of rights and obligations in the prescribed form (the s 21B notice)......

As a rule, the seller is entitled to the entire purchase price and, save for limited exceptions, holds an equitable lien over the property until the sum is settled in full. This remains the case even where a receipt has been issued. See Practice Note: Unpaid vendor’s lien. In some situations, the buyer may contend that the seller is estopped from pursuing the outstanding balance, which will usually depend on whether they relied on the completion statement to their detriment... See also Commentary: Vendor’s lien: Halsbury’s Laws of England [960] Declaration and enforcement of lien: Atkin’s Court Forms [119]...

Payment in instalments Section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) establishes a process enabling a developer to enter planning obligations with a local planning authority, intended to lessen the impacts arising from a proposed development......

Tattersall v Tattersall In Tattersall v Tattersall, the husband moved to amend a maintenance order, while the wife pursued steps to compel compliance with that order......

Assured and assured shorthold tenancies—granting Under section 21A of the Housing Act 1988 ( HA 1988), a notice under HA 1988, s 21 may not be given in relation to a dwelling house in England let on an assured shorthold tenancy if the landlord has failed to meet the prescribed requirements. Those requirements are contained in the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015, SI 2015/1646, and in regulation 6(5) of the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118. At present, as things stand, these instruments do not impose any obligation that a property attains a specified EPC rating before a section 21 notice can be served. For more detail, consult Practice Note: Assured and assured shorthold tenancies—granting and Commentary: When a landlord cannot give a s 21 notice: prescribed...

Under Part II of the Landlord and Tenant Act 1954 ( LTA 1954), security of tenure covers most business leases, save where the parties have ‘contracted out’ of those rights. Section 38A of the LTA 1954 permits landlord and tenant to agree that security of tenure will not apply. To make the agreement effective, the parties must comply with the contracting-out process specified in LTA 1954, s 38A(3) and Regulatory Reform ( Business Tenancies) ( England & Wales) Order 2003 ( RRO 2003), SI 2003/3096, Sch 2......

This Q& A proceeds on the basis that the protected tenancy falls under the Rent Act 1977 ( RA 1977). Rent Act tenancies are chiefly under RA 1977......

During the medieval period, the manor’s lord allowed local people to occupy and farm open land on the estate in return for payment (in cash or in kind, for example tithes and corn rents) or services (ie labour or military service). Moreover, the lord of the manor also kept certain rights over the land. Such manorial rights were annexed to the lordship (ie the title ‘lord of the manor’), rather than to the manor land. A full catalogue of these rights appeared in Schedule 12, paragraphs 5 and 6 of the Law of Property Act 1922 (now repealed). That list is, however, conveniently reproduced in HM Land Registry Practice Guide 66— Overriding interests losing automatic protection in 2013, within that guidance document for reference......

The Industrial and Provident Societies Act 1965 ( IPSA 1965) has been revoked. The Co‑operative and Community Benefit Societies Act 2014 ( CCBSA 2014) now regulates how registered societies are formed and run. Per CCBSA 2014, s 1(1)(b), ‘registered society’ covers, via CCBSA 2014, s 150, societies which, immediately before 1 August 2014, were registered or regarded as registered under IPSA 1965 at that time......

When land is subject to a charitable trust, any disposal must comply with Part 7 of the Charities Act 2011 ( CA 2011). Transactions involving charity land are governed by CA 2011, sections 117–123. The charity is required to show that the proposed disposal serves its best interests and that it is being carried out on the best terms that can reasonably be secured in full......

Given the enquirer notes the highway is 'seldom used', the initial issue to examine is whether the route ought to remain a highway that is maintained at the cost of the public purse......

We take it that both buyer and seller are unconnected third parties, dealing at arm’s length for these purposes; the asset being conveyed is situated in England and Wales; and the effective date is the date of completion. Although the seller might have a charge secured over its interest in the property, that does not automatically mean the sale to the buyer is caught by that charge by itself. Whether it is depends on what the parties agree. As a rule, a transfer is not taken subject to an existing mortgage. The notes below consider a transfer that is subject to a mortgage, and one that is not. Transfer subject to seller’s existing mortgage Where a property is conveyed to a buyer subject to the seller’s subsisting mortgage, the purchaser assumes the seller’s liability......

Local authorities have an overarching obligation to take whatever measures are needed to ensure, so far as practicable, that their district remains free of rats and mice, and, specifically, to: periodically undertake any inspections required for that purpose eradicate rats and mice on land they occupy and, otherwise, keep such land, so far as practicable, free from rats and mice enforce the duties of owners and occupiers of land under Part I of the Prevention of Damage by Pests Act 1949 ( PDPA 1949), and carry out operations authorised by those provisions This Q& A proceeds on the basis that the local authority is neither the owner nor the occupier of the property in question and is therefore unable to rely on the statutory power in PDPA 1949, s 2(1)(b) referred to above......

Higher rates of SDLT on additional residential properties Refer to the Practice Note: Higher rates of SDLT on additional residential properties, which confirms that a beneficiary of a bare trust or a life interest is treated as the purchaser for the 3% higher rates; see also paragraphs 10–11 of Part 3 of Schedule 4ZA to the Finance Act 2003. The Practice Note also sets out the SDLT position where the beneficiary is a minor. If the remaining conditions in that Practice Note are fulfilled (for instance, the properties are dwellings and both interests in land are major interests), the beneficiary must apply the additional 3% rate of SDLT when acquiring an extra property. For further guidance, see: HMRC's SDLT manual: SDLTM09815 Interests Treated As Owned By An Individual, Trusts, Children [ Including Children Subject To The Mental Health Acts] ...

15% rate of SDLT For guidance on the 15% SDLT rate, consult Practice Note: 15% rate of SDLT for high-value residential property transactions. You can also use the ‘ Related documents’ pod positioned on the right-hand side of this document, which offers links to additional reading and guidance on the 15% rate within Lexis®Library......

For the purposes of the Gambling Act 2005 ( GA 2005) Under GA 2005, s 3, gambling encompasses ‘gaming’, ‘betting’ and taking part in a ‘lottery’. ‘ Gaming’ is defined in GA 2005, s 6 as playing a game of chance for a prize under that provision. A game of chance covers the following: a game that contains both an element of chance and an element of skill, a game where the element of chance can be eliminated by superlative skill, and a game presented as involving an element of chance, but it does not include a sport. There must be some element of chance and the prospect of winning a ‘prize’ for the activity to qualify. The Q& A does not indicate the setting in which the mystery box of prizes is being offered to participants. If the prize is to be obtained by taking part in a game of...

For information: for a general overview of zero hours contracts, refer to Practice Note: Zero hours contracts for guidance on protections for zero hours workers (including employees) concerning exclusivity clauses, see Practice Note: Exclusivity clauses—protections for low-income and zero hours workers Section 27A of the Employment Rights Act 1996 ( ERA 1996) makes any term in a zero hours contract unenforceable against a worker if it attempts to stop them from: carrying out work or providing services under another contract or any other arrangement, or doing so without the employer’s permission Workers under a specified contract (that is, low-income workers) are additionally covered by the Exclusivity Terms for Zero Hours Workers ( Unenforceability and Redress) Regulations 2022, SI 2022/1145, regs 2–3......

To persuade the court to grant a decree nisi, proof that the application for a matrimonial order has been duly served is required. Ordinarily, this can be shown by producing the acknowledgement of service filed in the divorce proceedings. If the respondent does not return an acknowledgement of service or lodge any documentation, the petitioner must establish service. The petitioner may choose to arrange personal service of the petition on the respondent and any co-respondent. Where, after personal service, no acknowledgement of service is filed by the respondent, the person who effected service must file a certificate of service stating the precise date and time of that personal service. That certificate should be completed in Form FP6. If an application has been served on a respondent, no acknowledgement of service has been returned to the court office, and the court is...