August 31st, 2010 by Mark Withers
Damages for trespass are generally calculated on a compensatory basis. The party bringing the claim is therefore entitled to recover damages only for loss actually suffered.
The law has for some while recognised that in certain instances this approach won’t produce an equitable outcome. In these cases damages are measured by reference to the benefit which the trespasser has gained by the use of the land in question.
In the recent case of Stadium Capital Holdings -v- St Marylebone Property Company the High Court appeared to have extended this exception by awarding damages equating to the total income earned by the defendant from unlawfully erecting a hoarding in air space over land owned by the claimant. The Court of Appeal has now decided that awarding such a high level of damages, without appropriate evidence, was wrong . The proper approach will ordinarily be to award damages equating to the “hypothetical licence fee” i.e. the amount the parties would have negotiated as a reasonable licence fee in order to permit the relevant activity.
A party accused of trespass should keep an eye on its potential liability, bearing in mind the comments made by the Court of Appeal, that where appropriate evidence is submitted, a higher level of damages than was ultimately awarded in the Stadium Capital Holdings case might be appropriate. A party considering pursuing an action for trespass will be well advised to gather as much “appropriate” evidence before bringing a claim.
Tags: damages, liability, trespass
Posted in Property | No Comments »
August 31st, 2010 by Mark Withers
The recent announcements by the Homes and Communities Agency of cuts to the National Affordable Housing Programme (NAHP) being £450 million for the 2010/11 financial year will cause developers involved in agreeing terms for developments reliant upon NAHP funding a fairly major headache. Not least of these headaches will be the VAT implications of developing sites where an option to tax for VAT has been made.
Housing Associations inability to reclaim VAT is often dealt with by the disapplication by the Housing Association of the vendor’s option to tax. The supply of a site following service of the notice is exempt for VAT and this can enable Housing Associations to develop sites which would otherwise be unviable.
Where Housing Associations are unable to commit to purchase owing to the reduction in the NAHP funding or uncertainty over its availability, a developer who has been endeavouring to facilitate the disposal and development of a site on which VAT is payable is left in a difficult position. The developer may choose to purchase the site itself, reclaim any VAT and develop to “Golden Brick”. At this point the sale of the site to a Housing Association (once any funding issues have been resolved) will be deemed, for VAT purposes, to be the disposal of a dwelling or dwellings upon which VAT is not payable (or on which more accurately VAT is payable but at the rate of zero).
In this situation the developer will be incentivised to build as quickly as possible but also to persuade the Housing Association to accept the recent guidance issued by HM Revenue and Customs, that Golden Brick isn’t simply necessarily two bricks above the damp proof course (being the definition traditionally used) but rather the point at which construction of the building has progressed beyond the foundation stage. With a large building or development this might bring the completion date forward significantly and so improve the developer’s cash flow.
Getting the definition of “Golden Brick” right and considering the other options available to navigate a route through the obstacles which VAT can present when developing in conjunction with Housing Associations is and will for the foreseeable future, remain a key issue for any developers active in this field.
Tags: golden brick, housing, nahp, national affordable housing programme, vat
Posted in Housing Law, Property | No Comments »
August 26th, 2010 by Mark Withers
Where Part II of the Landlord and Tenant Act 1954 applies to a lease the Tenant will be entitled to the grant of a renewal lease at the end of the term unless the Landlord is able to satisfy one of the statutory grounds. Clarification on the operation of the “redevelopment ground” has been provided by the High Court in the case of Somerfield Stores Limited v Spring (Sutton Coldfield) Ltd.
The redevelopment ground requires the Landlord to show that it has both a firm and settled intention to redevelop and that there is a reasonable prospect of the Landlord being able to carry out the development. It’s now clear, following the Somerfield Stores case, that the intention to redevelop doesn’t have to be formed (and therefore proved to the court) until the date of any trial.
The judgement means that Landlords now have longer to address any obstacles to redeveloping tenanted sites where Tenants seek to renew existing leases and obtaining vacant possession of those sites entails proceedings under the Landlord and Tenant Act 1954.
On the other side of the fence where Tenants are aware of development proposals being formulated by Landlords, they will need to actively pursue renewal proceedings to prevent Landlords from having an extended period in which to formulate and progress their plans.
Tags: 1954 act, landlord, redevelopment, tenant
Posted in Property | No Comments »
August 25th, 2010 by Neil Davies
Divorcing couples have now been sent a very stark message from the courts regarding the confidential information belonging to their spouse. For many years the divorce courts have been used to husbands or wives delving into the confidential information of their other half, copying this information and handing it over to their solicitor in the hope that it may give them an advantage in the financial proceedings. These practices, the courts have now decided, must come to an end.
Read the rest of this entry »
Tags: confidential information, divorce, family courts, imerman, self help
Posted in Family Matters | No Comments »
August 17th, 2010 by Emma Foster
Clients regularly ask us about unsolicited mail they have received from companies and individuals, which is addressed to them as the applicants for, and owners of, intellectual property rights.
The UK Intellectual Property Office (IPO) has issued a further warning about this type of correspondence, where various unofficial IP services are offered, including assistance with renewals of patents and trade marks and invitations for applications into publications and registers, in return for payment of a fee.
The only offices which are able to provide legal protection for patents, designs and trade marks in the UK are the Intellectual Property Office, the European Patent Office and the Office for Harmonization in the Internal Market (OHIM).
Should you receive any suspicious looking correspondence, please contact us to confirm its authenticity.
Tags: intellectual property rights, UK Intellectual Property Office, unsolicited mail
Posted in IT/IP | No Comments »
July 30th, 2010 by Clare McCauley
All online businesses need to be aware of their obligations under the Data Protection Act 1990. The Information Commissioner’s Office has produced an online code of practice to explain how the DPA 1998 applies to the collection and use of personal data online. It also provides good practical advice for organisations that do business online. The code can be found at www.ipo.gov.uk.
Tags: Data Protection Act 1990, Personal Information
Posted in Commercial Law | No Comments »
July 30th, 2010 by Douglas Cooper
The Office of Fair Trading (OFT) have published revised guidance on competition disqualification orders (CDOs) and with it, a warning that it intends to “actively seek disqualification of directors found to have engaged in anti-competitive behaviour or who ought to have known it was going on”
It is therefore clear that directors must retain a good grasp of competition law and ensure that their company has adequate policies and procedures in place to prevent it from falling foul of UK and EU competition law.
The guidance makes it clear that ignorance is not an excuse and the OFT will be just as concerned with directors who ought to have known of competition law breaches as those whose conduct contributed to the breach. In considering whether a director “ought to have known” of the breach, the OFT is likely to take into account:
- The director’s role in the company;
- The relationship of the director’s role to those responsible for the breach;
- The general knowledge, skill and experience possessed by the director and that which a director in his position should possess; and/or
- The information available to the director.
The guidance enables the OFT to accept undertakings in place of disqualification and to give immunity where a director co-operates with an OFT investigation.
The OFT has indicated that the changes are not intended to place a higher burden on particular directors but, given that the role of the director will be taken into account, it seems that directors with compliance responsibilities and those involved in sales, distribution and marketing (who naturally are more likely to be aware of anti-competitive practices) will be in a more vulnerable position.
It is acknowledged that directors are not expected to be experts in competition law and the OFT have promised to publish some guidance setting out what a director is expected to know. In the meantime, if a director is concerned that practices within their business may be anti-competitive, specialist advice should be obtained.
Tags: anti-competitive practices, CDOs, competition disqualification orders, office of fair trading
Posted in Commercial Law | No Comments »
July 27th, 2010 by Amanda Scally
As a result of an agreement between the UK and Lichtenstein in August 2009 any UK taxpayer who has an account in Lichtenstein will be contacted by their bank. The letters from the Lichtenstein Financial Intermediary will require UK taxpayers who have undeclared assets in accounts in Lichtenstein to show that they are complying with their UK tax obligations, that they do not have a UK tax liability or to make a disclosure under the Liechtenstein Disclosure Facility (LDF) being run by HM Revenue & Customs (HMRC). If the UK taxpayer does not comply with this their account will be closed.
The LDF offers reduced penalties to individuals with undeclared income or gains if they make full disclosure to HMRC. There may also be inheritance tax savings if assets have been inherited prior to 1999. If you have any offshore accounts in other jurisdictions you may be able to make disclosure under the LDF by transferring assets to Lichtenstein.
For further information please contact Amanda Scally at Paris Smith on 023 8048 2293.
Tags: HM Revenue & Customs, LDF, Lichtenstein disclosure facility, UK tax liability, UK taxpayer, undeclared offshore income
Posted in Investments | No Comments »
July 6th, 2010 by Elizabeth Power
This week is “Dementia Awareness Week” (4th July – 10th July).
Dementia is a term used to describe various brain disorders that have in common a loss of brain function that is usually progressive and eventually severe.
There are about 750,000 people in the UK with Dementia. So there is every likelihood that each of us knows someone who has it.
With the loss of brain function may come the loss of the person’s ability to manage their financial affairs. This is when Lasting Powers of Attorney (“LPA”) can be of great assistance because it enable the person to appoint an Attorney (of his/her own choice) to manage their financial affairs, pay bills etc for that person.
If however, the person does not have a Lasting Powers of Attorney and it is now too late for them to have one, because they are no longer able to manage their affairs and so not understand what a LPA is, then an application can be made to the Court of Protection for someone to be appointed as a “deputy” to manage that person’s affairs.
If you would like further information about Lasting Powers of Attorney and/or the Court of Protection please contact:-
Elizabeth Power
Paris Smith LLP
Number 1 London Road
Southampton
SO15 2AE
Telephone: 023 80482 206
Email: elizabeth.power@parissmith.co.uk
Tags: Dementia Awareness Week
Posted in Family Matters | No Comments »
July 2nd, 2010 by Amanda Scally
Following a recent case where a man who had split up with his cohabiting partner 17 years ago and was awarded a half share in the house they once lived in, even though he had never paid the mortgage, the Law Society has released a statement saying that all unmarried couples are at risk if they don’t plan or prepare for all eventualities when co-habiting or combining assets.
If you are buying a property together it is important to agree in writing each person’s share at the beginning and to record any extra contributions made by one party over the other, for example where one person pays all the deposit. We can assist by drawing up a simple document showing each party’s share. This will protect each party in the event that they stop living together, and also in the event of the death of one party, from potential claims by the deceased’s estate. For more information contact Amanda Scally at Paris Smith.
Tags: co-habiting couples, unmarried couples
Posted in Family Matters | No Comments »
