Wednesday, July 30th, 2008
Not so long ago, virtually all websites had some sort of business purpose. However, the ‘social networking’ phenomenon has led to the creation of hundreds of thousands of websites which exist primarily for the exchange of information, which may be uninformed – or worse. The problem is exacerbated by ‘open’ websites, such as blogs, which allow public access to the site content, presenting the danger that libellous material may be published.
Allowing uncontrolled vilification of a person or company is unlikely to be well received by the subject of the abuse. Fortunately, the UK has a strong presumption of the right of freedom of expression. However, that right is not unlimited and the law also gives legal persons (i.e. including companies and associations) the right not to be the subject of false and defamatory allegations.
The law of libel requires a claimant to show that a defamatory statement about them has been made by the defendant in a form which has been seen by at least one other person. The right to sue runs for a year from the date of publication – and each time the defamatory comment is republished, the clock starts again. There is no inherent difference between a website and (say) a newspaper in English libel law.
There are various defences to an action for libel, the most important of which is that the statement made was justified (i.e. true). It is also a good defence to show that the publication was done innocently, which means that the publisher was unaware that defamatory material had been published by him and that his ignorance of that fact was not negligent. This defence is difficult to sustain, however, especially if the publication is a commercial one.
The most effective solution if you operate a blog or similar open website is to review the material on it reasonably frequently and remove anything which may be defamatory. If a complaint is received, action should be taken immediately.
It should also be remembered that the law of copyright applies to the web as well as to paper publications. Publishing material gleaned from the Internet but written by someone else, without their permission or an appropriate licence, is a breach of copyright. If the material has commercial value, a claim for damages may result.
Steven Kinch has recently advised on liability for blogging content. Contact Steven Kinch now for more advice or guidance on your website.
Thursday, July 24th, 2008
Following a recent ruling of the Court of Appeal, country landowners will have something to cheer about. The judgment means that hundreds of applications made by councils representing off-roaders and other users, for right of way over rural tracks, are likely to fail.
The Court ruled that access to land via two rights of way over Twyford Down in Hampshire was to be denied. The applications were not made in the correct form, but the Court concluded that even if they had been, in this case it was unlikely that they would have satisfied the requirements of the Wildlife and Countryside Act 1981, which aims to protect the rural environment.
The Natural Environment and Rural Communities Act 2006 had as one of its aims the extinction of vehicular rights over green lanes where the rights had fallen out of use. This resulted in a deluge of applications by off-roaders to get councils to recognise vehicular rights, so that they could pursue their activities. Many of these applications have not been accompanied with the full Definitive Map and other documentation necessary and seem doomed to fail as a result.
If you would like more advice on rights of way or any country landowner property matters then contact Paul Slot now.
Friday, July 18th, 2008
Can they sue for unfair dismissal?
A European Directive has been calling for agency workers to gain equal treatment to their directly employed colleagues after 6 weeks. So far, this has been resisted by the UK Government.
To deal with the ongoing uncertainty in this are, the Government brokered a “Deal” with the TUC and the CBI, which was announced by BERR on 20 May:
After 12 weeks of employment, agency workers will gain entitlement to “equal treatment.”
“Equal treatment” applies to “basic working and employment conditions,” (such as rate of pay or holiday entitlement, etc) to be applied as if the worker were directly and permanently employed. (Pensions are excluded).
The Government agreed to enter into further consultation on the implementation of the draft EU Directive to deal with agency worker’s rights to resolve disputes that arise from their employment.
However, the key issue, whether an agency worker can sue an end user for unfair dismissal, is not currently covered by the deal.
If an agency worker receives “equal treatment” after 12 weeks, this implies that after a year they should have the same right as that of their directly employed colleagues to claim unfair dismissal if employment regulations and statutory procedures are not followed.
The current situation is not entirely clear and some agency workers may regard themselves as self-employed.
The Court of Appeal and the Employment Appeals Tribunal have again called for the Government to clarify the position.
So far, the response has been a draft bill. It proposed that agency workers be considered as employed by both their agency and the end user. Both of these organisations would be jointly and severally liable for any award of unfair dismissal compensation in these circumstances. However, this was dramatically withdrawn and we now await the next consultation from the Government.
If you are using long term agency workers then contact Jonathan Friend, an employment law expert, for a free initial 15 minute telephone consultation to make sure your business is protected.
If you use agency workers in your workplace the outcome of the next consultation should be watched carefully.
Wednesday, July 16th, 2008
Easements and Covenants – Changes to the Law Proposed
The law relating to covenants, easements and ‘profits à prendre’ over land is a relatively complex area given that such rights are common – the Land Registry has suggested that nearly two thirds of properties have some sort of easement over them and nearly 80 per cent have a covenant of some sort.
An easement is a right enjoyed by one landowner over the land of another. A positive easement (such as a right of way) is a right to go onto or make use of something in or on a neighbour’s land. A negative easement is essentially a right to receive something (such as light or support) from the land of another without obstruction or interference.
Covenants are promises made with regard to land (i.e. not to allow it to be used for stated purposes).
Profits à prendre allow the holder the right to remove products of natural growth from another’s land. Shooting and fishing rights come under this category.
The Law Commission has stepped in to reform the current system by proposing a simpler system for dealing with covenants and easements. It has issued a consultation paper which aims to remove anomalies and complications in the law. However, the proposed changes are limited to private law rights and will not deal with rights available to the public at large, such as rights of way, or with covenants between landlords and their tenants.
For more information and advice and guidance on all propertry matters contact a member of our property team
Friday, July 11th, 2008
(You do have an employee handbook?)*
More legislation is being produced every day in the employment area, raising the potential of costs and penalties if you’re not in compliance. With the economic downturn and problems of letting staff go this is even more important than ever.
We think many of our clients have exposure in this area — therefore, we are announcing a new group of services to help protect you from liability.
Specifically, we will:
If you contact us before the end of this August quoting this article and your business is based within 20 miles of any of your offices then we will do an initial 2-hour review of your files and policies, AT NO CHARGE.
We will then report back to you any immediate problems noted and our recommendations. Please let me know if you would be interested.
* Don’t worry if you do not have an employee handbook! - we can create one for you at a special fixed price. Contact Jonathan Friend now.
Thursday, July 10th, 2008
When a couple’s conduct over a period of time is consistent with co-ownership of a property, it might be thought that the property would come to belong to them both, no matter what the legal form of ownership may be. Such assumptions are often tested in divorce cases when a property is owned by one or other of the divorcing couple.
Recently, a case came before the Court of Appeal dealing with just such an issue. It involved a dispute over the financial settlement decided by the lower court.
The divorced couple lived in the family farm, which was originally owned by the mother of the husband. Latterly, the husband and his mother had created a partnership to run the farm and the farmhouse was then owned by the two of them as joint tenants.
Early in the couple’s relationship, the wife had helped out with the farming business and took part in business decisions regarding the farm. She received no payment for this. She also bought additional land, which added value to the property, and subsequently operated a successful riding school on the farm. This was initially financed by an interest-free loan from a company owned by her husband. She later incorporated her business.
Following the break-up of their marriage, the wife moved out of the farmhouse and claimed a share in the farm in the divorce settlement. Neither her ex-husband nor his mother had ever raised the question of the wife’s ownership specifically and nor had she. However, she claimed that her right to a share arose because her ex-husband and his mother had conducted themselves in a manner which supported the view that there was a common intention to hold the farm jointly – in legal parlance that a ‘constructive trust’ had arisen in her favour. The judge awarded her a quarter share in the value of the farm. Her ex-husband and mother-in-law appealed.
In the Court of Appeal, the judge took a different view, holding that the conduct of the parties did not necessarily prove the fact that the ex-wife was intended to have a beneficial interest in the farm. In the absence of any legal agreement regarding the ex-wife’s ownership of the farm, he could not see how encouragement of the horse-riding business or her minor role in the farming business could be interpreted as constituting sufficient evidence that a constructive trust had been created. In any event, her claim would be counterbalanced by the support she was given when setting up her business.
Says Marie Stock, “In truth, claims of this nature can be a bit of a lottery and much will depend on the availability of contemporary evidence of the intentions of the parties involved. The simplest way to avoid an appearance in court is to make sure that the intentions of the parties are set out in a document so that, in the event of a later dispute, the position can be readily resolved.”
Contact Marie Stock for a more advice and guidance.
Wednesday, July 9th, 2008
With the advent of Home Information Packs (HIPs), the appointment of an Ombudsman for Estate Agents (OEA), the laying down in statute of the duties of estate agents and the recent passing of the Consumers, Estate Agents and Redress Act 2007 (CEARA), a property purchaser might reasonably conclude that their interests are strongly protected under the law. This view is likely to be bolstered by an awareness of the existence of the National Association of Estate Agents’ (NAEA) own disciplinary and redress scheme. However, the assumption that a buyer’s interests are well protected is not as well founded as you might think.
The main function of the HIP is to collect information (searches, title details and so on) about the property and its energy efficiency. It is supplied by a provider independent of the owner of the property. The rights of the property purchaser are primarily protected by making the HIP provider carry insurance to meet claims for losses suffered by buyers as a result of incorrect HIP content.
The estate agent’s main duty is to the vendor of the property, so the regulations under which they operate relate mainly to their relationship with the vendor. They are bound not to discriminate against purchasers who do not wish to buy other services they offer and to declare a personal interest to any buyer. It is important to note that even when the sales particulars of a property are inaccurate, the right of redress may be limited. Recently, the court ruled that an agent was not liable for providing false information to the effect that a property included a substantial area of land which was not in fact registered in the vendor’s name. The estate agent had simply accepted without enquiry that the area of land was part of the property and included it in the sale particulars. The court considered that any purchaser would have made sure that a proper search of the title was done and in any event the offer for sale was ‘subject to contract’ – placing the onus on the purchaser to make sure their enquiries were carried out carefully!
The Ombudsman service deals with claims against estate agents, but its powers are limited and the maximum award that can be made is £25,000. In practice, most awards are a small fraction of that amount. Members of the NAEA must belong to the OEA redress scheme.
Whilst the CEARA requires estate agents to belong to an approved redress scheme, the tendering process for operation of the scheme has not yet been completed and it is not expected to be fully implemented until October 2008. The relevant section of the Act itself mainly relates to record keeping and inspection of records issues and the grounds under which estate agents can be warned or banned. There is no specific mechanism for compensating consumers.
We can assist in all property matters and disputes arising from property and other transactions.
Contact a member of our property team for more advice and guidance.
Friday, July 4th, 2008
The new Independent Safeguarding Authority (ISA) is due to commence operations in October 2009 and will be responsible for vetting the millions of people seeking to work with children or vulnerable adults. The ISA was established in January 2008 by the Safeguarding Vulnerable Groups Act 2006
The authority will maintain the database of people who are barred from working with children and vulnerable adults, bringing all existing barring arrangements under one roof.
Registration with the ISA will be compulsory for all those who wish to work with people in either category. A fee of £64 will be payable, which will cover registration with the Criminal Records Bureau (CRB) and the fee for the search of the records of the CRB.
The ISA’s remit is to help to avoid harm or the risk of harm to children and vulnerable adults by preventing those who are unsuitable from working with them from gaining access to them through their work. It will gather information on such persons in partnership with the CRB and store the information securely, making barring decisions on a case by case basis. It will operate independently of the Government
The bringing together of the relevant databases within one organisation should act to give a more robust and quicker vetting system, which will come as a relief to employers seeking to recruit staff who will work with children or vulnerable adults
Further details of the ISA’s mode of operation and the system for appeals against its decisions will be announced in due course
If you have any questions on employment matters then contact Jonathan Friend. Mention this article when calling to take advantage of a free 15 minute telephone conference with Jonathan.
Thursday, July 3rd, 2008
HIP Temporary Provisions Extended
The Government has announced that it is extending the temporary provisions for first day marketing whereby a property can be put on the market without a Home Information Pack (HIP) provided one has been commissioned and paid for and is expected to be in place within 28 days.
Originally, the dispensation was to end for properties marketed after 31 May 2008 but the date has now been postponed to 31 December 2008.
The temporary dispensation that applies to leasehold properties, whereby the only compulsory document in the HIP is a copy of the lease, will also continue until the end of the year. This change has been made because the Government has instituted a new consultation process following industry complaints about the additional costs and delays being experienced when obtaining the documents necessary for inclusion in a HIP for a leasehold property. It is expected that the rules relating to the contents of HIPs for leaseholds may well change significantly between now and 31 December.
Contact us now for your quick and cheap Home Information Pack.
If you are buying, selling or letting a property, we can assist you to make sure the necessary legal work is carried out promptly, professionally and economically.
HIPs – Part-exchanged Properties
With the property market tightening rapidly, a builder is more likely than ever to offer to take the existing property of a buyer in part-exchange for the purchase of a new one. Often, the builder will wish the house being part-exchanged to be put (or remain) on the market between the exchange of contracts and completion of the sale, in the hope that the builder will have the part-exchanged property ‘on its books’ for as short a time as possible.
When the property being part-exchanged is already on the market, a Home Information Pack (HIP) will have been prepared. If the HIP received by the builder is ‘in date’ (i.e. not more than 12 months have passed since the date the property was first marketed), then parts of it can be ‘recycled’.
In all cases a new sale statement and index would be required. However, the energy performance certificates and Land Registry documents can be reused. Searches cannot be reused in normal circumstances, as the liability for the accuracy of the search cannot be ‘passed on’. However, the builder can market the property using the previous documents of title until the change in ownership has been recorded by the Land Registry.
Contact us now for your quick and cheap Home Information Pack.
HIPs Shared Ownership Properties
If a shared ownership property is being purchased by a sitting tenant, a HIP is not necessary if no marketing of the property has taken place. However, if such a property is being sold on the open market, then a HIP is necessary.
Contact us now for your quick and cheap Home Information Pack.
Ask about our special offers on conveyancing - if you are buying, selling or letting a property, we make sure the necessary legal work is carried out quickly, professionally and at a great price!
Wednesday, July 2nd, 2008
The danger of cohabiting without making an express agreement as to how the title to property is to be held has again been underlined by a recent case.
It concerned a woman who had lived with a man for several years in a house which was registered in their joint names and financed by a mortgage. However, there was no document recording the couple’s respective shares in the ownership of the property. The man had paid the deposit on the house from his own funds and also paid the mortgage repayments. He also paid other costs relating to the property, such as rates and utility bills. The couple had children and the woman, who worked, spent the majority of her income on them and the maintenance of the family. The couple drew up wills leaving their estates to one another.
When their relationship broke down, the man argued that whilst he intended that his partner should inherit the property on his death, he had not intended it to be owned in equal shares. In court the judge decided that ownership of the house should be apportioned by the respective contributions of each party to its purchase. Since the woman had made no contribution, her share was nil. She appealed to the Court of Appeal, asserting that a beneficial joint tenancy had been created with her rightful share being 50 per cent. The man argued that his intention had been only that she would inherit the property if he predeceased her and they were still a couple on his death.
The Court of Appeal found that the judge in the lower court had erred in considering the couple’s respective contributions to the cost of the property as representing their intentions with regard to its ownership. The fact that the property was jointly owned justified the assumption that both were beneficial owners. The ownership split had to be determined by the intentions of each party and the important issue was that the relevant intention was the intention understood by the other party. Furthermore, the respective contributions of each party could not be conclusive. The man’s intentions were not made clear. His argument that his partner’s share should be a lesser sum did not rest on logic and he could not demonstrate that the couple had shared the common intention that her share should be other than a half of the total.
In this case, had there been documentation created when the property was purchased to show how it should be owned, there would have been little room for dispute. The fact that there was no evidence of any such agreement made it possible for the case to go all the way to the Court of Appeal.
If you are buying a property with someone else, having the agreed ownership documented when it is purchased is inexpensive and easy to do. Contact Marie Stock now for more information and expert advice.
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