When we are acting for developers who are purchasing a piece of land quite often mines and minerals will have been excepted.
If the mines and minerals are excepted this means that someone else has the rights to mines and minerals in, on or under the land. The risk to the developer is that the owner of the reservation of mines and minerals may allege that the foundations of any development may amount to trespass.
If you identify that the land if subject to any such reservations then the first step is to get as much information as possible about the reservation top see how they affect your planned use, such as at what depth of the mines and minerals that are reserved.
If land that you are planning to develop has rights to mines and minerals reserved then there are a number of ways to address the matter:-
1. obtain indemnity insurance, the indemnity insurance will not remove the reservation but it would mean that if a claim is made for trespass and /or access for works then a claim for losses can be made under the policy;
2. that you contact the minerals owner to ask whether they would be minded to sell their rights. Any approach to the owner of the mines and minerals should be considered seriously beforehand as once you make contact with the owner you will be prevented from obtaining indemnity insurance.
If you are a developer and have a question on mines and minerals then please do not hesitate to make contact with Christie Limb on 01623 663244.
The first step is that you will need to check that the lease can be passed to another third party. Look at the terms the lease for the assignment of lease clause. Most leases allow for the assignment of the whole, very few allow for the assignment of part of the property.
The assignment clause will generally require that the landlord’s consent to the assignment is obtained. The landlord and you, as the outgoing tenant, will want to ensure that the tenant coming in is off suitable financial standing to pay rents etc. The landlord may put conditions on the licence to assign including:-
1. that you as the tenant passing the lease on, enters into what is called an AGA ( Authorised Guarantee Agreement). This in basic terms is an agreement in which you as the tenant passing the lease on, guarantees that the incoming tenant will comply with the terms of the lease;
2. the landlord will ask that you pay his fees and his surveyor’s fees for the licence to assign;
3. the landlord if he is not completely satisfied that the incoming tenant is of suitable financial standing may request that the incoming tenant pays a rent deposit.
When you are looking to pass the lease onto a new tenant it is important that you take legal advice at an early stage. I have lots of experience in such matters and would be happy to assist with any questions you may have and if you decide to instruct would provide you with a fixed fee quote for the work.
When you take a leasehold property there will be a requirement that you pay a service charge.
A service charge is a payment you will be required to make to the landlord for services the landlord provides such as insuring the building and common parts, maintenance and repairs of the property, landscaping of communal gardens, heating and lighting in common areas. The landlord will quite often employ a managing agent to provide the services and if so the managing agent’s fees will also become part of the service charge.
The service charge amount changes from year to year. Each lease will detail what proportion of the service charge is payable by the owner of that leasehold part.
The service charge payments are generally made in advance and at the end of the year any shortfall has to be made up by the tenants.
When you are buying a leasehold property it is important that you have sight of the previous service charge accounts and that you find out of there is any planned large expenditure in over the following years as this could result in the service charge increasing.
Leasehold property is very different to freehold property and this is why at Fidler and Pepper we have a specialist team that deal with leasehold property only. If you are thinking of buying a leasehold property that please contact us for a fixed fee quote for the transaction.
A website can be a massive weapon for a business. It can be a huge outlet for sales and an important marketing tool. It is vital that terms and conditions are clearly displayed on your nice shiny website to set out the rules for use of the site . We hope for the sake of your business that the website terms and conditions are the dullest page on your site, but they could easily be the most important!
Why do I need website terms and conditions?
Any business with an online presence – even those which are not actually selling goods or services on their website – must include certain details on their website in order to abide by e-commerce laws and regulations, such as full company details, VAT registration number etc. Website terms and conditions are the best place to include this information to ensure that the internet presence of your business is legally compliant.
What should website Ts and C’s cover
The precise content of your website terms and conditions will depend upon the nature of your business and how much e-commerce that you do. However, below are a few of the main themes that need to be reflected in your website terms and conditions regardless of what your business does.
Your website terms and conditions need to limit your liability in cases where there are errors in your web content. There needs to be a clause stating that your business cannot be held responsible for any errors in content. If your website has any links to others then any disclaimer should cover the content on these third party websites as well. In addition, if you allow visitors to post content to your website, you’ll need to add a clause that limits your liability from any of their offensive postings. There should be a disclaimer that your business doesn’t endorse and is not responsible for statements made by third parties.
Your Terms and Conditions should also mention where your website is operating from in terms of the governing law to ensure that any dispute over its terms are dealt with under English law rather than elsewhere.
We can help
For advice on website terms and conditions or on any legal documentation relating to your business, contact a member of our Business and Commercial team on 01623 663246. We offer fixed fees for legal services to businesses- see our Business Fixed Fee Menu for more details.
When we act on the sale of a leasehold property one of issue we often come up against a is the management pack. With a leasehold property the owner of the property owns the building but not the land and this is retained by the landlord otherwise known as the freeholder. The freeholder will have control over the common areas such as landings stairs gardens etc, these are generally managed be a management company who then charge the flat owners a charge known as a service charge. . When the property is being sold the seller will be requested by the buyer to provide a management pack and this will detail the service charge for the property, what services are provided, what anticipated service charges are for the future etc.
The problem we have is that the management company can charge varying sums for such packs and quite often the seller has not allowed for this is the sale fees. We are not able to tell the seller at the outset what the cost of the management pack will be until the management company have informed us and most management companies charge different amounts. the other issue with the management pack is that it can take time to come through.
At Fidler and pepper we have a dedicated team that deal with leasehold property and will try and obtain the management oack for you right at the outset to avoid delays.
If you are planning to sell a leasehold property then please contact Maddie Sault our specialist leasehold fee eraner and she would be more than happy to provide you with a fixed fee quote for the work.
If you own a commercial property or are thinking of investing in a commercial property with a view to letting the property out you should consider investing by way of a SIPP or a SSAS.
A SIPP stands for Self Invested Personal pension and a SSAS is small self administered scheme.
My clients who have invested through such pension schemes already either own the property and let it to their company or are buying it with a view to letting it to their company. What happens then is that the rent from their company is invested into their pension scheme.
The benefits of investing through a SIPP or SSAS include:-
– contributions into the scheme receive tax relief
– the rent received by the pension scheme is not subject to income tax
– the property when sold has not capital gains tax liability
– in most circumstances there will be no Inheritance tax liability on death
– the ownership of the property prevents the pension being an asset that could be claimed in bankruptcy
If you are thinking of investing in a commercial property by way of a SIPP or a SSAS I would be happy to handle the legal part of the transaction for you at a fixed fee price. please feel free to call me on 01623 663244
What are they?
A SIPP is a self invested personal pension and a SSAS is small self administered scheme.
Why are they of interest?
They provide for some a tax efficent way of investing.
Why look at investing by way of a SIPP or a SSAS
– growth is free from CGT
– tax relief at the individual or company’s highest rate
– rental income received by a pension scheme attracts no UK income tax
– on retirement 25% of the pension fund can be paid as a tax free lump sum
– on death before retirement the whole payment under the pension fund could be paid as a tax free lump sum i.e. no inheritance tax
The difference between a SIPP and a SSAS
small occupational pension scheme set up by the directors
– members are usually employees or directors of the employer
– each member has a a notional share of the SSAS funds
– more flexible on investment
– can lend to the company
SIPP is a personal pensions set up by an insurance company or specialist SIPP operator.
– open to anyone
– usually a minimum fund size
-There are usually higher running cost
Don’t worry this is not a blog about Engelbert Humperdink!, I just wanted to share some thoughts with you on the subject of equity release, as we have found in recent months that the number of client’s enquiring about equity release plans has increased quite significantly.
Equity release plans are a way for homeowners over the age of 55 to release some money on the basis that the loan is secured against their property and is only repayable upon sale of the property or in the event of death or leaving the property to go into permanent long term care.
The main type of equity release plan available is known as a lifetime mortgage. With a lifetime mortgage, you borrow a proportion of your home’s value. Interest is charged on the amount at a fixed rate which is compounded or ‘rolled up’ over the period of the loan, but nothing usually has to be paid back until you die or sell your home. Lifetime mortgages allow you to retain full ownership of your property and offer a flexible way of releasing money in later life without the worry of meeting regular monthly repayments. Most lifetime mortgages offer a no negative equity guarantee which means that the amount repayable under the plan will never be more than the amount the property is sold for.
Lifetime mortgages are not right for everybody. The fact that a compounded interest rate is applied means that it is likely that by the time the loan is repayable the costs of doing so are three or four times higher than the original loan amount. This will of course mean that the value of your estate could be substantially reduced which might not be your plan! Entering into a lifetime mortgage could also have implications on your eligibility to receive certain welfare benefits and could also affect your tax position.
Whilst it is possible to shop around and compare the different equity release plans available yourself, we would strongly advise you to consult an independent financial advisor to gather information on the various products available and to find the right plan to suit your needs. Make sure that you enquire about all the fees that are involved with any products offered to you as you do not want to be caught off guard!
Once you have found the equity release plan that suits your needs and you are happy to proceed with it, you will be asked to provide the contact details of a solicitor to act on your behalf. We would be happy to help and to provide you with a clear fixed fee quote for guiding you through the legal process culminating in the release of funds to you. For further information feel free to contact our Mr Luke Rees on 01623 663246.
I often get asked about VAT on commercial properties. Commercial properties are exempt from VAT however this exemption can be waived.
It is important for a tenant to check at the early stages of the lease negotiations as to whether or not VAT is payable. If it is then VAT at the appropriate rate will be payable on top of the rent. If the tenant is registered for VAT this is not much of an issue it will just effect cash flow in that the tenant will have to pay the VAT out and then reclaim the VAT payment back. The problem is when the tenant is not VAT registered as they will pay VAT on the rent and will not be able to claim it back.
There is then the additional problem in that even if VAT is not payable when you initially tkae on the lease it could become payable during the term of the lease as the landlord can opt to charge VAT on the property at any time.
Is there anything the tenant can do?
Yes. In the initial negotiations if VAT is payable and the tenant is not VAT registered he can try and negotiate a lower rent
If the VAT is not payable at the start of the lease and the tenant wants to ensure that this remains the same throughout the term of the lease, then the tenant can a negotiate that a clause be included in the lease to state that during the term the landlord will not opt to charge VAT.
Any landlord realistically will wish to avoid both of the options above this is why it is important for a tenant at the early stages of negotiations to instruct a solicitor so that the tenant is aware of all the options available to them and to ensure that they negotiate the best rental terms.
If you are a tenant and are thinking of taking on a lease please feel free to call me on 01623 663244 and I would be happy to assist with any enquires.