New Data Protection Rules
January 2010
£500,000 fine awaits businesses who fail to comply with new data protection rules
Your business could suffer severe financial penalties when new data protection proposals come into force on 6th April 2010.
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Fit For Purpose?
8th December 2009
Employers need to be aware of the new regulations on 'fit notes' that come into force in April 2010 and replace sick notes.
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Where There is a Will There is a Way - To Get it Wrong
20th November 2009
You may have seen adverts for ‘legally drafted wills’ for as little as £49. You may even have been accosted in a shopping centre by ‘professional will writers’ offering incredibly attractive deals to sort out your affairs.
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Why We Would Recommend Making a Lasting Power of Attorney
20th August 2009
A power of attorney is a document whereby someone (the Donor) authorises one or more other people (the attorney(s)) to do things on the Donor’s behalf. As a general rule a power of attorney ceases to be valid when and if the Donor loses mental capacity. A Lasting or Enduring Power of Attorney (EPA or LPA) is a power of attorney which remains valid regardless of the mental capacity, or lack or mental capacity of the Donor.
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Who Owns Your Website?
November 2009
A common source of dispute in day to day business that we see, and particularly on a transfer / sale of a business, is ownership of the intellectual property (IPR) rights that exist in designs, software, processes and systems.
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Company Secretarial Data Sheet
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Can We Fix It? Yes We can - Eventually
The recession has hit new developments hard, with many sites around the country standing deserted, half built in some cases.
A recent dispute that reached the High Court has highlighted the tensions that this can cause between seller and buyer – and offers useful pointers what to do if completion of a new build is delayed.
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Family Data Sheet
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Collaborative Law Data Sheet
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HR Retainer Service Data Sheet
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Employment Health Check Data Sheet
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Employment Health Check
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HR Retainer Service Data Sheet
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TUPE OR NOT TUPE bringing a service in-house
8th October 2009
Employers involved in the transfer of a business can be forgiven for being a little confused by the very complex legal rules that govern this practice.
Under TUPE 2006 (or giving its full title The Transfer of Undertakings (Protection of Employment) Regulations 2006) when a business or part of a business is transferred from one party to another then the employees of that business automatically transfer across with the same terms and conditions, and continuity of employment as before.
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Breach of Contract Forfeiture of Deposit
18th September 2009
The law in most cases where there has been a breach of contract would see forfeiture of a deposit of 10% of the price as unduly severe and therefore not enforceable. With deposits on the sale of land that’s not been the case.
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Meetings and Written Resolutions
17th July 2009
One of the stated aims of the Companies Act 2006 (the “2006 Act”) was to make it easier to set up, run and manage a private limited company. It has done this by introducing new provisions relating to members’ (shareholders) meetings and resolutions.
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A Shock Desicion for Developers
26th June 2009
An office development without electricity may not prove especially attractive to potential buyers or tenants, and a recent case in the High Court highlights the care that must be taken by developers when they need to go through someone else’s property to connect up to the National Grid.
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A Better Way to Manage Your HR
18th June 2009
Herrington & Carmichael LLP now offers clients a bespoke HR retainer service that works as a part of your business – in effect your own HR team, but without the cost and legal obligations of employing FT or PT HR staff.
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Get What’s Owed to You…
29th May 2009
It is debt that has got us into the current economic malaise and it is debt that is causing a growing headache for businesses – both because they have more debtors, and those debtors are less willing or able to pay.
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Recovering Money Through a Bailiff
29th May 2009
Many commercial landlords will breathe a sigh of relief that the Government’s plans to replace the remedy of distress look likely to be shelved. The remedy has been an effective (though its critics might say a draconian) way of recovering rent arrears without going to court, with the landlord gaining priority over other creditors, having the opportunity to seize third party goods and the tenant being left with very few options to challenge the remedy.
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Now may just be the right time to purchase that business
18th March 2009
Mergers and acquisitions have been put on hold by many businesses due to the economic downturn but opportunities still exist to acquire struggling competitors or to bolt on businesses that can complement your own business and expand your operations.
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The Tenancy Dilemma
18th March 2009
Most landlords will be familiar with the concept of contracting out leases so the tenant does not enjoy the security of tenure provisions contained in the 1954 Landlord and Tenant Act. Without this, a tenant will usually have a statutory right to renew the tenancy at the end of the original lease’s term, so long as the tenant has occupied the premises for the purposes of its business.
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Developers must have consents in place before beginning any work
14th January 2009
Restrictive covenants – limitations on the use of a property – can be tricky beasts, and derail a developer’s best intentions even if he has obtained planning permission, as a recent case in the High Court has proven.
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It's time to give your sickness policy a check-up
14th January 2009
Short-term sickness absence is one of the hardest staff issues for an employer. A survey recently by the Chartered Institute of Personnel and Development found that employees took an average of eight days off sick last year, costing their employers £666 each.
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Whose Name is it Anyway?
3rd November 2008
Have you found that another business is seeking to profit from the goodwill in your brand or the reputation of your business?
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Maintaining business success and protection in difficult times
25th August 2008
The current economic climate heightens the risk to any business. It could be from customers not paying, from overstaffing, or from trading while insolvent. But there are still steps businesses can take to ensure they are well placed to deal with the credit crunch.
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Employers Risk Claims of 'Discrimination by Association'
7th August 2008
Until now, only people who were themselves disabled could bring a discrimination claim. But following a recent ruling of the European Court of Justice, those associated with a disabled person – such as the parent of a disabled child – could have a claim too. Every employer in the land should take note of this radical extension of the law.
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The dangers of owning a listed building
16th July 2008
More than 500,000 buildings in the UK are listed for their architectural or historical importance, and for all they bring to the nation, they can also provide their owners with a headache if they want to alter or demolish them.
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Even recently imposed restrictive covenants can be removed
16th July 2008
Most property owners will be familiar with the concept of the restrictive covenant – a limitation on the use of their property. But when one is imposed by a local authority which later grants planning permission that seems to contradict the covenant, you can potentially use the law to remove the restriction.
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Seeing the light: how to preserve the value of your development
16th July 2008
The right to light – which essentially concerns the obstruction of light from adjoining property – is a real bear trap for developers. Impact on someone’s right to light and you can face either an injunction to stop you building or a claim for a ‘fair’ percentage of the net development value caused by the infringing building. That can cost a lot of money. The flipside is that, if you handle this properly, a developer can safely realise the value of his site.
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Holiday Entitlement for the Long Term Sick
30th May 2008
Previously the Courts had made what seemed to be a perfectly logical decision, that employees on long term sick leave were not entitled to accrue a right to paid annual leave. The rationale being that annual holiday is provided for a Health and Safety reason to give people a break from work. Those on long term sick leave did not need a break from work so had no entitlement to paid annual leave.
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Grievances-Would you know if one had been raised
30th May 2008
The intention of introducing the Statutory Disciplinary and Grievance procedure in October 2004 had been to simplify matters and encourage employers and employees to resolve disputes before they got to an Employment Tribunal.
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Mobility Clauses
16th April 2008
The Court of Appeal has held that an employer can in certain circumstances use a mobility clause to avoid making an employee redundant.
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Companies Act 2006 - Update
11th April 2008
The Companies Act 2006 is being introduced in stages in order to allow Companies and
Practitioners to get to grips with its vast 1300 clauses and 16 schedules. A number of the new rules will be introduced this year. Are you prepared?
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Bad Vibrations
3rd April 2008
There is a fine balance to be struck between the rights of developers and the impact on their neighbouring occupiers.
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Employers Tax Break
15th March 2008
HM Revenue & Customs (HMRC) can no longer require an employer to pay income tax on a person’s earnings where the employer has paid someone as a self-employed person and then HMRC has re-categorised them as an employee.
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Tax planning Wills for Couples
20th March 2008
It used to be the case that the conventional Will for a married couple provided that everything passed to the survivor, the problem with this was that in effect the Nil Rate Band (NBR) of the first party to die was thrown away. Since about 1992 the focus of most tax planning in Wills has been to find a way to preserve the NRB of the first party to a marriage so that when the second party dies there would be two NRBs available rather than one. The main vehicle for this sort of tax saving was the Nil Rate Band Discretionary Will Trust (NRBWT) usually coupled with a loan facility for the surviving spouse. At a stroke the TNRB has in effect removed the need for such complicated tax planning.
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Employment Law Changes
20th February 2008
The limit on the maximum compensatory award for the unfair dismissal and the maximum amount of a week’s pay for the purpose of calculating the basic award for unfair dismissal and a redundancy payment all increased as from 1st February 2008.
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Has Retirement Had Its Heyday
20th February 2008
The introduction of the Age Discrimination legislation in October 2006 also saw the arrival of the default retirement age of 65. Employers have been able to insist on employees retiring at 65 providing they follow a statutory procedure. Employees could ask to work longer but had no right to insist. The legality of a default retirement age has recently been challenged – so where does this leave employers?
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How To Make Your Mark
18th January 2008
Prior to December 2007, the Intellectual Property Office (‘IPO’) would refuse an application for the registration of a trademark where its search of the trademark registry revealed a conflicting mark. This is no longer the case and the IPO will now no longer refuse to register a trademark where a conflicting mark is registered unless the holder of the earlier mark successfully opposes the application.
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Electronic Service
1st January 2008
New rules brought in towards the end of 2007 now require companies to positively ‘opt out’, if they do not wish to have documents served on them electronically by email, fax or potentially by text message.
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Age Discrimination Developments
4th December 2007
When the Regulations came in to force in October 2006, it was thought there would be a flood of applications to the Employment Tribunals, not least because it was estimated that one third of the working population was over 45 and all the demographics expect that to rise over the next 10 years.
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Internet Mis-Use - Social Networking
29th November 2007
With social networking sites such as My Space and Face-book having around 15 million users in the United Kingdom, it is clear that these sites are now hugely popular. Sites like these enable users to share their lives and experiences with friends and strangers via public and private messages, music, photos and videos. An employee’s ability to keep up to date with friends and relatives while at work could be argued to be beneficial in helping manage the work life balance more effectively. Some surveys however show that a third of Internet users access the web from work and it is therefore hardly surprising that Internet use has become a real issue for the HR manager.
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Age Discrimination - one Year on
29th November 2007
The Age Discrimination Regulations came into force just over a year ago and yet age discrimination still appears to be prevalent. A recent survey revealed that over half of the people responding were aware of age discrimination taking place in their workforce. This is despite the fact that nearly 90% of those responding were aware that it is unlawful to discriminate against people on grounds of age in their employment. This high level of awareness has not yet translated into the number of discrimination claims that many anticipated.
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Rights to Light
20th November 2007
Developers face a significant increase in the amount of damages they have to pay for infringing a neighbour’s right to light as a result of a groundbreaking case.
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Restrictive Covenants
13th November 2007
Over the last year or so the courts seem to have taken a much tougher stance over employees who have restrictive covenants preventing them from approaching customers and suppliers within 12 months of the employment ending.
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Pre Budget Report. How do we rate the changes to IHT
17th October 2007
So what has the Pre Budget Report done for inheritance tax? It has made the nil rate band - that is the part of your estate that can pass free of tax to your children - transferable between husband and wife. Widows and widowers can now claim their spouses’ unused nil rate band as well as their own. This means that married couples and civil partners have now ‘doubled up‘ the amount of assets they can give away free of tax from £300,000 to £600,000, and this will rise to £700,000 by 2010.
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HM Revenue Erroneously Charging Interest on SDLT
5th October 2007
It has come to our attention that HM Customs and Revenue have admitted that they have been erroneously charging interest on late payment of SDLT.
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How often should I review my will
15th August 2007
Our general advice is that Wills should be reviewed at least once every 5 years, however this is a generalisation and in practice the regularity of review depends very much upon your individual circumstances. The aim of this article is to try and give some guidelines, both general, and specific to the last few years, as to when you should be looking at your wills.
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Intention to dedicate land as a highway
9th November 2007
Landowners have received some welcome clarification from the House of Lords on when use of a way can lead to land becoming a public highway.
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Service Charges for Residential Properties.
9th November 2007
New regulations mean that landlords of long leasehold residential properties delivering to tenants a demand for service charges will need to ensure that the demand is now accompanied with a summary of the tenants’ rights and obligations.
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Everybody needs a Power of Attorney
25th April 2007
Everybody needs a Power of Attorney! Actually a slight exaggeration but we hope it will make your read this article and think about your position. Most people tend to think of Powers of Attorney as something for the elderly and infirm. While there is some truth in that every adult who owns property or any sort should consider whether or not they need an Attorney. If for any reason you are unavailable or become incapacitated a Power of Attorney is the solution, if your absence is planned arrangements can usually be made but if it is unexpected then the Power of Attorney is a useful insurance that comes into its own.
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Nil Rate Band Discretionary Will Trust and the Case of Phizackerley
25th April 2007
A number of people have expressed concerns to us about the possible adverse impact of the above Case on Nil Rate Band Discretionary Trusts included in their Wills.
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IP Rights - How To Protect Your Business’s Databases
19th April 2007
Most business will have developed at least one database, commonly a list of its customers and their contact details. Such information is very valuable to any business and large amounts of time and money are likely to have been invested in compiling it. It is therefore very important to take steps to protect your businesses database(s).
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IP Rights - How To Protect Your Software
18th April 2007
How do you protect this core element of your business? There are some statutory provisions that govern software protection but these are, on the whole, limited in their application, complex and expensive to enforce. The main statutory provisions are copyright and patents both covered under the Copyright Designs and Patents Act 1998.
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Report from important meeting concerning Special Protection Areas
28th March 2007
Peter Burley was appointed as the Assessor to consider the SPA and the DDP and report his findings to the Panel for the Draft South East Plan (“the SEP”). The key issues discussed were the way in which the DDP interprets the Habitats Directive and Habitats Regulations; the ecological evidence; the evidence base for the approach put forward in the DDP in relating to the effectiveness of Suitable Alternative Green Spaces (“SANGs”), the DDP Zones and quantities of SANGs required by the DDP.
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A New Approach to Distress and Forfeiture
6th March 2007
The law surrounding commercial Landlord and Tenant matters is complex and often involves legal principles, which have been established for many years. In these days of constant awareness in respect of human rights some of these “long established principles” are regarded as being not politically correct. We are currently faced with two examples of government proposals to make the relationship of commercial Landlord and Tenant a little more user friendly.
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Flexible Working Update
1st March 2007
Flexible working rights are not new and it was in the context of working parents caring for young children that they were first introduced as part of the Maternity and Parental Leave (Amendment) Regulations 2001 and the Flexible Working (Eligibility, Complains and Remedies Regulations 2002.
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The effect of the Civil Partnership Act 2004
13th February 2007
Elton John and his long-term partner David Furnish ‘tied the knot’ because a major change in the law has taken place, allowing couples of the same sex to register the relationship by way of a ‘Civil Partnership’. However, the Government has been quick to point out that this is not to be confused with marriage as there are distinct differences – marriage is formed when words are exchanged whereas Civil Partnership is formed when paperwork is signed; Non-consummation is not a ground for annulment of Civil Partnership; Civil Partnership cannot be dissolved on the grounds of adultery. The Civil partnership Act 2004 (‘the Act’) came into effect on 5th December 2005.
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The Civil Partnership Act Taking Equality To The Extreme?
13th February 2007
The implementation of the Civil Partnership Act 2004 (‘the Act’) on 5th December 2005 marked a milestone for same sex couples who wish to be recognised in law as a couple.
As a result of the Act, couples of the same sex can now register their relationship by way of a ‘Civil Partnership’. The Government has emphasised that this is not a religious act and should not be confused with marriage. There are distinct differences – marriage is formed when words are exchanged whereas Civil Partnership is formed when paperwork is signed; Non-consummation is not a ground for annulment of Civil Partnership; Civil Partnership cannot be dissolved on the grounds of adultery.
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Home Working
1st February 2007
Since April 2003 the Flexible Working Regulations have allowed employees with at least six months service and children under the age of six to ask their employer to consider allowing them to switch to flexible working. This of course includes working from home (wholly or in part). Whilst it is only a right to request, nonetheless the employer must consider any such request carefully.
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More Flexible Working Rights
1st February 2007
Most employers have been well aware that from 10 January 2002 employees who have been with you for at least 26 weeks and who wish to change their working hours or introduce other flexible arrangements in order to care for a child who is not yet 6 (or if disabled, 18) can request such changes. This was under the Maternity and Parental Leave (Amendment) Regulations 2001. It has always been an entitlement to make a request, not an obligation on the employer to grant it.
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Smoke Free Premisies - Are You Ready
29th January 2007
The National Heart Forum estimates that second hand smoke in the workplace causes at least 600 premature deaths a year, nearly three times the number killed in industrial accidents. The British Medical Journal published a paper in April 2006 indicating that second hand smoking could increase the risk of developing type 2 diabetes.
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Companies Act 2006
25th January 2007
The Companies Act 2006 (the ‘Act’) received Royal Assent on 8 November 2006. The Act, which consists of 1,300 sections and covers nearly 700 pages, is the single largest piece of British Parliamentary legislation ever enacted. In spite of its length, the Act is designed to simplify and modernise the existing rules rather than make any dramatic shift in the company law regime. This briefing covers the key implications for your company.
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Service Charges - The New Code
16th January 2007
Service charges have frequently been a contentious issue between Landlords and Tenants. Tenants tend to suspect that their Landlord is endeavouring to make a profit out of the service charges that are raised. Landlords resent being obliged to pay out substantial sums and then have difficulty in recovering them.
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Regan v Paul Properties Ltd and Others (2006)
23rd November 2006
This decision of the Court of Appeal is a noteworthy case for all Developers especially when dealing with objections to a proposed development based on rights to light. If there are such objections this case illustrates that the Court may well grant an injunction preventing obstruction to this right even when units have been/are in the process of being constructed.
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Amendments to Planning Use Classes 1
2nd October 2006
Any use which does not come within one of the use classes is referred to as sui generis and effectively is in a use class of its own
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Deposit Forfeiting
1st October 2006
It is a standard term in a sale contract for a residential plot that the 10% deposit will be forfeited if the purchaser wrongly fails to complete. More and more Developers are accepting 5% deposits on the basis that the balance of 5% will be due and payable if the deal goes sour.
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Chancel Repair Liability and Chancel Repair Searches
1st October 2006
Following the case of “Aston Cantlow” an owner of a farmhouse located on former church land was found liable to pay £95,260.84 towards the repair of the local parish church. The impact of this decision and its consequences are still being played out.
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Beware the Housing Act 2004
1st October 2006
The way in which the Government introduces legislative change is one of the difficulties in which we all face in trying to stay up to date with the law. The Housing Act 2004 is a good example of this.
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The Intention to Demolish under the Landlord & Tenant Act 1954
1st October 2006
Under Part II of the Landlord and Tenant Act 1954 (“the Act”) Business Tenants are given security of tenure (which means they have automatic right to renew their lease). However, Landlords can oppose the grant of new leases under the various grounds contained in s30(1) of the Act.
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New Fire Regulations - Are You Prepared
1st October 2006
The Regulatory Reform (Fire Safety) Order 2005 is expected to come into force in October 2006; these new regulations are designed to consolidate the existing fire safety legislation. This article highlights the main areas of change from the current legislation, but we recommend that you make use of the link at the end of this article for more detailed information.
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Breach of Restrictive Covenants and Delayed Claims 1
1st October 2006
When dealing with breaches of restrictive covenants will a delay by the claimant affect the remedies available to them? The High Court recently considered this issue in Harris v Williams-Wynne (2005)
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Rectification for Unilateral Mistake
1st October 2006
The Court of Appeal has overturned a decision of the High Court ordering the rectification of an overage provision in a sale contract on the grounds of unilateral mistake.
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Construction work causing an annoyance
1st October 2006
The restrictive covenant “not to create a nuisance or annoyance to adjoining owners” is often found when investigating title to potential development sites. The question has always been whether this nuisance covenant could effectively restrict the re-development of the land in question. The recent decision in the case of Shepherd v Turner (2006) at the Court of Appeal has given some guidance on this particular issue.
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What Constitutes a Planning Application
1st October 2006
It is interesting to note that there is no statutory definition of what constitutes a planning application. In the Town and Country Planning Act 1990 the phrase “application for planning permission,” has been taken in case law to mean an application for full planning permission or outline planning permission. R v Bradford Upon Avon Urban District Council ex parte Bolton.
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Breach Of Restrictive Covenant and Delayed Claims 2
1st October 2006
We reviewed the case of Harris v Williams-Wynne (2005) in a previous Herrington & Carmichael article, but the case is back in the legal news after an appeal by Mr Harris (Harris v Williams-Wynne (2006)).
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Do stated dimensions take precedence over scales and other features on a Transfer Plan
1st October 2006
The importance of accurate contract plans cannot be over-emphasised. Though many may feel that the costs and time delays of a land surveyor are not necessary in preparing contract plans spare a thought for the parties in the case of Cook v JD Wetherspoon Plc.
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Highways or Byways
1st October 2006
From May 2006, the provisions contained in the Countryside and Rights of Way Act 2000 came into force, the aim of which is to stop ‘mechanically propelled vehicles’ exercising rights of way over roadways and paths that are not suited for that use.
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Age Discrimination; Major Changes in Employment Law
1st October 2006
Later this year discrimination in the workplace on the basis of age will become unlawful as a result of the Employment Equality (Age) Regulations 2006. Age discrimination legislation has been promised for a number of years and is now likely to become effective in October 2006. The new Age Discrimination Regulations will be enforced alongside the existing legislation which deal with discrimination on grounds of race, sex, disability, sexual orientation, religion and belief.
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Leave Entitlements Briefing Note
1st October 2006
The entitlement to time off work has become increasingly more difficult to deal with as differing criteria apply depending on whether it falls within the “family friendly” legislation or other employment legislation.
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HR Forum
1st October 2006
Once a month Herrington & Carmichael host a lunchtime networking session for managers responsible for HR issues. The forum, which is held in our Camberley offices on Watchmoor Park, is very informal and there is no charge to attend.
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