We recommend Today's Conveyancer as an essential tool for updated information in the property market. The portal can be found at
http://www.todaysconveyancer.co.uk/
Thursday, 29 July 2010
Metro Bank launches with direct mortgage deals
Metro Bank is the first high street bank to launch for over 100 years and will offer mortgages, current accounts, savings accounts, credit cards and loans.
See article on Mortgage Strategy: -
http://www.mortgagestrategy.co.uk/lenders/metro-bank-launches-with-direct-mortgage-deals/1016012.article
See article on Mortgage Strategy: -
http://www.mortgagestrategy.co.uk/lenders/metro-bank-launches-with-direct-mortgage-deals/1016012.article
Mourant: CVA versus Liquidation – What is Creditor unfair prejudice?
The Landlord applicant brought a challenge to a Company Voluntary Arrangement under section 6(1) of the Insolvency Act 1986 stating that the effect of the vote at a meeting to approve the CVA had unfairly prejudiced their interests as a creditor.
In general terms, their argument was that the Company Voluntary Arrangement presented them with a situation where they would take a reduction in their entitlement where other unsecured creditors would not have to do so. Indeed, it was likely that the other unsecured creditors would obtain 100p in the pound. In addition, the Landlord had a guarantee from another group company in respect of the terms of the lease. Consideration was focussed on the case of Prudential Assurance Co Ltd v PRG Powerhouse Ltd [2007] All ER (D) 21 (May) (Powerhouse), in which it had been held that a Company Voluntary Arrangement could be lawfully structured so as to deprive a landlord of the benefit of a third party guarantee of the liabilities of the tenant debtor company. As a result the CVA left the Landlord in a substantially worse position than on a liquidation of the tenant, where regardless of the amount that they might have expected to receive as a dividend in the liquidation, their rights against the Guarantor would remain.
As a result the application by the Landlords was successful. A number of points require consideration from the judgement
POINT A
Certain points concerning CVAs could be implied from Powerhouse. First, any CVA which left a creditor in a less advantageous position than before the CVA would be prejudicial to a creditor: the real issue was generally whether such prejudice was 'unfair'.
Second, there was no one test for judging unfairness and the question had to depend on all the circumstances of the case, including in particular the alternatives available and the practical consequences of a decision to confirm or reject the arrangement.
Third, when assessing the question of unfairness, a number of techniques could be used, including 'vertical' and 'horizontal' comparisons. A vertical comparison was one between the position that a creditor would occupy and the benefits it would enjoy in a hypothetical liquidation as compared with its position under a CVA. The importance of such a comparison was that it generally identified the irreducible minimum below which the return in the CVA could not go. A horizontal comparison was one between the position of the applicant and the position of other creditors or classes of creditors. The fact that a CVA involved differential treatment of creditors (but it would seem particularly in the same class) was a relevant factor which called for careful scrutiny, although it would not automatically render a CVA unfairly prejudicial
POINT B
How do you determine what is a fair compensation to the landlord for the loss of the right to enforce the terms of a lease against a guarantor. In the absence of a compelling justification the landlord should not be forced to accept a sum which was based on numerous assumptions (for example about the landlord's ability to re-let the premises) which might or might not prove to have been well-founded. To adopt such a procedure, in circumstances where the solvency of the guarantor was not in issue, was to undermine the basic commercial function of the guarantee, and to force the landlord to accept a commercially inferior substitute for it.
POINT C
It is unquestionable that the responsibility of the office holder in attempting to fulfil the purpose for which he was appointed is to try to structure an arrangement that would be capable of achieving the necessary statutory majorities but at the same time would not be unfairly prejudicial to any creditor.
OUTCOME
In the instant case it was held that the guarantors had dictated the terms of the agreement to the office holder and as a result to the unsecured creditors, where a likely return to creditors would be 100p in the pound. Of course they would vote for it. But the Landlord would not get 100p in the pound and the terms of the guarantee would be lost or made less favourable. Accordingly, the fact that it was irrelevant to the other creditors and that the vote was likely to be carried suggested that prejudice had occurred and the court held that the guarantor’s involvement made it unfair.
In general terms, their argument was that the Company Voluntary Arrangement presented them with a situation where they would take a reduction in their entitlement where other unsecured creditors would not have to do so. Indeed, it was likely that the other unsecured creditors would obtain 100p in the pound. In addition, the Landlord had a guarantee from another group company in respect of the terms of the lease. Consideration was focussed on the case of Prudential Assurance Co Ltd v PRG Powerhouse Ltd [2007] All ER (D) 21 (May) (Powerhouse), in which it had been held that a Company Voluntary Arrangement could be lawfully structured so as to deprive a landlord of the benefit of a third party guarantee of the liabilities of the tenant debtor company. As a result the CVA left the Landlord in a substantially worse position than on a liquidation of the tenant, where regardless of the amount that they might have expected to receive as a dividend in the liquidation, their rights against the Guarantor would remain.
As a result the application by the Landlords was successful. A number of points require consideration from the judgement
POINT A
Certain points concerning CVAs could be implied from Powerhouse. First, any CVA which left a creditor in a less advantageous position than before the CVA would be prejudicial to a creditor: the real issue was generally whether such prejudice was 'unfair'.
Second, there was no one test for judging unfairness and the question had to depend on all the circumstances of the case, including in particular the alternatives available and the practical consequences of a decision to confirm or reject the arrangement.
Third, when assessing the question of unfairness, a number of techniques could be used, including 'vertical' and 'horizontal' comparisons. A vertical comparison was one between the position that a creditor would occupy and the benefits it would enjoy in a hypothetical liquidation as compared with its position under a CVA. The importance of such a comparison was that it generally identified the irreducible minimum below which the return in the CVA could not go. A horizontal comparison was one between the position of the applicant and the position of other creditors or classes of creditors. The fact that a CVA involved differential treatment of creditors (but it would seem particularly in the same class) was a relevant factor which called for careful scrutiny, although it would not automatically render a CVA unfairly prejudicial
POINT B
How do you determine what is a fair compensation to the landlord for the loss of the right to enforce the terms of a lease against a guarantor. In the absence of a compelling justification the landlord should not be forced to accept a sum which was based on numerous assumptions (for example about the landlord's ability to re-let the premises) which might or might not prove to have been well-founded. To adopt such a procedure, in circumstances where the solvency of the guarantor was not in issue, was to undermine the basic commercial function of the guarantee, and to force the landlord to accept a commercially inferior substitute for it.
POINT C
It is unquestionable that the responsibility of the office holder in attempting to fulfil the purpose for which he was appointed is to try to structure an arrangement that would be capable of achieving the necessary statutory majorities but at the same time would not be unfairly prejudicial to any creditor.
OUTCOME
In the instant case it was held that the guarantors had dictated the terms of the agreement to the office holder and as a result to the unsecured creditors, where a likely return to creditors would be 100p in the pound. Of course they would vote for it. But the Landlord would not get 100p in the pound and the terms of the guarantee would be lost or made less favourable. Accordingly, the fact that it was irrelevant to the other creditors and that the vote was likely to be carried suggested that prejudice had occurred and the court held that the guarantor’s involvement made it unfair.
Breeze & Wyles now fully Video Conferencing enabled
Breeze & Wyles is pleased to announce that following testing both internally and externally that it can now offer its clients Video Conferencing facilities. The benefit is to see your lawyer and to reduce overall cost of the provision of legal service in commercial and litigation matters. In addition, when necessary we can also deliver management meetings meaning that there is now no need to hire expensive meeting rooms to have a physical meeting.
If you would like to discuss the potential call or Brendan O'Brien on 01279 715322 or e mail to brendan.obrien@breezeandwyles.co.uk
If you would like to discuss the potential call or Brendan O'Brien on 01279 715322 or e mail to brendan.obrien@breezeandwyles.co.uk
Monday, 26 July 2010
Breeze and Wyles continues to move up LR applications rankings
The figures recently released by the Land Registry ranking firms by way of number of rankings in the month currently shows Breeze & Wyles at 5th place in England and Wales, when banks and shared equity firms are excluded.
Once again this demonstrates that the Breeze & Wyles solution is second to none in the market place and that more clients are coming to see the benefits of engaging with the Breeze & Wyles phenomenon.
Murray Fraser, A Director at Breeze & Wyles says: "You don't have to be private equity backed to provide a world class service. A focus on the needs of your clients through innovation and staff training provides a more desirable solution for clients than a focus on a return to your firm's funders."
If you wish for further information contact me on 01279 715322 or at brendan.obrien@breezeandwyles.co.uk
Once again this demonstrates that the Breeze & Wyles solution is second to none in the market place and that more clients are coming to see the benefits of engaging with the Breeze & Wyles phenomenon.
Murray Fraser, A Director at Breeze & Wyles says: "You don't have to be private equity backed to provide a world class service. A focus on the needs of your clients through innovation and staff training provides a more desirable solution for clients than a focus on a return to your firm's funders."
If you wish for further information contact me on 01279 715322 or at brendan.obrien@breezeandwyles.co.uk
Sunday, 25 July 2010
Mortgage Repossessions: Try Breeze & Wyles for something refreshing!
The news on the street is that the market place for firm capable of handling volume repossessions is now extremely small and as a result those in this market are becoming complacent. Now that these firms have driven prices down in order to consolidate the number of firms able to deliver this function it is clear that there is no need for real innovation to drive down cost and enhance service quality, as there is little or no competition left in the market.
That may be the case, but with a little confidence some lenders can benefit from an extremely competitive offering from Breeze & Wyles and its alliance firms. Combining a market leading IT platform developed wholly in house, excellent staff training processes and efficient pricing this is the product that the market really needs. Breeze & Wyles has appeared in the press on a number of occasions over the last couple of weeks mainly as a result of the acknowledgement by its clients that the quality of its service, IT system and staff is second to none. Why not become a part of the Breeze & Wyles phenomenon.
With Treating Customer Faairly principles at the core of the IT process our system delivers a service both safe to lender clients at efficient costing. Within the mandates that we are given we are able to ensure high quality management information and customer payment remediation if the lender client so wishes.
Additional services include: -
- title remediation;
- professional negligence services based on after the event insurance;
- shortfall recovery;
- Early warning of no application post completion of your mortgage advance.
If any of this interests you please call either Brendan O'Brien 01279 715322 or Murray Fraser 01279 715321 to discuss
Wednesday, 21 July 2010
Mortgage Repossessions set to rise in the medium term
There is some disturbing news in the market about the future trends in Mortgage Recoveries. Some reports suggest that this is set to increase shortly. The Consumer Credit Counselling Service (CCCS) believes this may happen as lenders enforce suspended possession orders after previous leniency.
As one the the UK's leading debt charities, it counsels a large number of clients with suspended repossession orders on their homes which lenders have chosen not to enforce despite clients failing to meet court stipulated payments.
This situation is likely to be aggravated in October when Support for Mortgage Interest payments for those who have lost their jobs are halved from 6.08% to 3.09%, to match the Bank of England's average mortgage rate.Delroy Corinaldi, CCCS's director of external affairs, commented: "There is no doubt that lenders have shown leniency towards debtors during the recession by not enforcing suspended possession orders. However, this leniency may have been partly determined by the markets.
"In addition, some lenders are increasingly showing reluctance in allowing struggling debtors to switch to interest-only mortgages as a short term solution, giving people the necessary breathing space to find other more sustainable options."
Tuesday, 20 July 2010
Volume Conveyancer article on Todays Conveyancer
Article to be found at http://www.todaysconveyancer.co.uk/news.php?viewStory=147
OpenConvey has been very busy this year signing up estate agents and conveyancers to its panel and introducing a will writing service.
Recently OpenConvey has added Alex Neil estate agents to its client list and have followed this up with the appointment of Breeze and Wyles who have offices from Enfield to Hertford.
Jonathan Hall, commercial director of OpenConvey is reported by Mortgage Introducer as saying "We are very pleased to have Breeze & Wyles join us. They are one of the top ten law firms in England and Wales by Land Registry applications.
"Not only do they represent the kind of regional practice which is a vital part of the OpenConvey ethos, but their investment in technology to maximise efficiency and cut operating costs means that the service our introducers receive will be of the highest quality."
"Breeze & Wyles have recognised, as we have, that to stay ahead in today’s market requires not only the vital human touch but also the best that modern technology can offer."
Brendan O’Brien, a Director at Breeze & Wyles says: "We are delighted to be part of the OpenConvey panel and look forward to dealing with enquiries from their introducers. We have been much impressed with the online service that links us to the introducers and their clients and which has linked seamlessly with our own internal systems."
"I am in no doubt that our partnership provides a major step forward in simplifying the legal aspect of the house buying process. It also demonstrates the potential for those Law Firms who are prepared to actively engage with delivery of legal service provision through IT particularly in this pre-Alternative Business Structure era."
OpenConvey has been very busy this year signing up estate agents and conveyancers to its panel and introducing a will writing service.
Recently OpenConvey has added Alex Neil estate agents to its client list and have followed this up with the appointment of Breeze and Wyles who have offices from Enfield to Hertford.
Jonathan Hall, commercial director of OpenConvey is reported by Mortgage Introducer as saying "We are very pleased to have Breeze & Wyles join us. They are one of the top ten law firms in England and Wales by Land Registry applications.
"Not only do they represent the kind of regional practice which is a vital part of the OpenConvey ethos, but their investment in technology to maximise efficiency and cut operating costs means that the service our introducers receive will be of the highest quality."
"Breeze & Wyles have recognised, as we have, that to stay ahead in today’s market requires not only the vital human touch but also the best that modern technology can offer."
Brendan O’Brien, a Director at Breeze & Wyles says: "We are delighted to be part of the OpenConvey panel and look forward to dealing with enquiries from their introducers. We have been much impressed with the online service that links us to the introducers and their clients and which has linked seamlessly with our own internal systems."
"I am in no doubt that our partnership provides a major step forward in simplifying the legal aspect of the house buying process. It also demonstrates the potential for those Law Firms who are prepared to actively engage with delivery of legal service provision through IT particularly in this pre-Alternative Business Structure era."
Further update on Mortgage Possessions
The Mortgage Repossessions (Protection of Tenants etc) Act 2010 now provides further updates on the rules on executed a warrant for possession on a property.
Under the Act SI 2010/1809 has been laid before Parliament and passed providing the method and form of notice of execution of possession order for residential properties
The legislation provides for a notice of execution of possession order to be given at all residential properties where the mortgage lender is seeking to execute a possession order against the borrower. There is a period of 14 days after the mortgagee has given notice of possession at the premises during which the possession order may not be executed.
The Legislation also prescribes a form and acceptable methods for giving notice at the property of notice of execution of a possession order.
Under the Act SI 2010/1809 has been laid before Parliament and passed providing the method and form of notice of execution of possession order for residential properties
The legislation provides for a notice of execution of possession order to be given at all residential properties where the mortgage lender is seeking to execute a possession order against the borrower. There is a period of 14 days after the mortgagee has given notice of possession at the premises during which the possession order may not be executed.
The Legislation also prescribes a form and acceptable methods for giving notice at the property of notice of execution of a possession order.
Statutory cap and unfair dismissal
Remember that the statutory cap (currently £65,300) applies to compensation for unfair dismissal. However, be aware of the effect of the cap here. Sometimes, for example, an employer pays an amount in lieu of notice. If a Tribunal decides (or would be likely to decide if it went to Tribunal, in situations where you are negotiating a settlement figure) that the employee’s losses are greater than the amount that you have paid, the cap will then be applied to the difference between the monies that the employee would be entitled to recover, and the monies that you have paid him/her. In short, the employee could end up with a figure that is greater than the cap, with you the employer paying the difference as well as the monies in lieu of notice.
Registration with non-mandatory professional bodies – discriminatory?
There are some "unregulated professions" where there is no legal requirement to belong to a professional body, nor are there any restrictions on practising. Although some professional bodies may award credentials such as professional titles (eg. Chartered Surveyor), which mark an individual out as having a particular competence, the point is that in these unregulated professions, accreditation or regulation with professional bodies is not mandatory. If an employer insists that all job applicants must be (eg.) "chartered", this would exclude a large proportion of applicants who are from overseas, even though they may have the relevant credentials to work in the position. It has therefore been suggested that it may be unlawful discrimination to require a job applicant to be registered with a non-mandatory professional body. Instead of saying an applicant should be a "Chartered Civil Engineer", it might be better to say "an engineer who is chartered or equivalent."
TICE(A) Regulations
From 5th June 2011, the Transnational Information & Consultation of Employees (Amendment) Regulations will come into force, although some provisions will not take effect until 1st October 2011. These will affect larger employers: watch this space.
Withdrawing dismissals
There are limited "special circumstances" in which a dismissal can be withdrawn. This case highlighted the issue. The main question is whether there is anything to indicate to the employee that the words of dismissal by the employer were not to be taken at face value. The normal rule is that clear, unambiguous words of dismissal are to be taken at face value. However, where there are special circumstances, the situation is different, for example where words have been spoken in the heat of the moment and then quickly retracted. For a clearly expressed dismissal to be retracted, it must be done quickly: the case of Qwikfit (GB) Ltd v Lineham had held that a reasonable period of time was "relatively short, a day or two". In this particular case, there was no retraction for a much longer period. [Willoughby v CF Capital PLC]
The importance of investigations
A case affirms the principle that where dismissal is a possible option in relation to an employee, the more serious the consequence will be for that employee, the more careful an investigation is required. In this case the Claimant, a Philipino nurse, stood to lose her work permit and be deported if dismissed. The Court of Appeal reversed an EAT decision which had allowed an appeal against a finding of unfair dismissal. The case also showed that in a case where an employer faces diametrically opposed accounts from employees where there is little other evidence, the employer is not obliged to believe one employee and disbelieve another. It might be perfectly proper for employers to say that they are not satisfied that they can resolve the conflict, so the case is not proved.
The effect of the comments made by the Court of Appeal is to remind employers of the need to adopt a very careful and balanced view of the evidence before dismissing an employee in circumstances that would be catastrophic for his or her career. [Salford NHS Trust v Roldan]
The effect of the comments made by the Court of Appeal is to remind employers of the need to adopt a very careful and balanced view of the evidence before dismissing an employee in circumstances that would be catastrophic for his or her career. [Salford NHS Trust v Roldan]
Previous conduct in dismissal case where no formal warning
The Employment Appeal Tribunal (EAT) has recently held that an employer was entitled to take similar previous misconduct into account when deciding whether to dismiss, even though no formal warning had previously been issued in respect of the prior misconduct. This case involved an administrator in a school with children with particular difficulties. She had intervened when staff were restraining a difficult child and was immediately told by the Head not to interfere in matters of discipline or behavioural restraint. Five months later a similar incident occurred where she intervened again. She was dismissed for misconduct, including "repeated and inappropriate intervention into behavioural and management issues" and "failure to follow reasonable management instructions". In reaching its decision, the school took into account what had been said to the teacher at the earlier incident, even though no formal warning had been issued at that time. The EAT upheld the dismissal, making the point that the correct test is to consider whether the employer's decision to dismiss falls within the range of "reasonable responses" available to it.
It is always wise to issue a written warning when justified but the case nevertheless shows that if an employer does not handle the procedures correctly, it will not necessarily follow that its decision to dismiss will be unfair (London Borough of Brent v Fuller)
Monday, 19 July 2010
Breeze and Wyles Solicitors LLP demonstrates position as volume power house (2)
OpenConvey, the online conveyancing portal, has appointed solicitors Breeze & Wyles Solicitors llp to its panel which strengthens the coverage offered to the north of London and Hertfordshire. Breeze & Wyles has four offices in Hertfordshire at Enfield, Bishop's Stortford, Cheshunt and Hertford.
Jonathan Hall, Commercial Director of OpenConvey said:"We are very pleased to have Breeze & Wyles join us. They are one of the top ten law firms in England and Wales by Land Registry applications. Not only do they represent the kind of regional practice which is a vital part of the OpenConvey ethos, but their investment in technology to maximise efficiency and cut operating costs means that the service our introducers receive will be of the highest quality. Breeze & Wyles have recognised, as we have, that to stay ahead in today's market requires not only the vital human touch but also the best that modern technology can offer."
Adrian Toulson, Conveyancing Manager at Breeze & Wyles commented:"We are delighted to be part of the OpenConvey panel and look forward to dealing with enquiries from their introducers. We have been much impressed with the online service that links us to the introducers and their clients and which has linked seamlessly with our own internal systems. I am in no doubt that our partnership provides a major step forward in simplifying the legal aspect of the house buying process."
For the link to the webpages
http://www.bestadvice.net/story.php?id=18761
http://www.mortgagesolutions-online.com/mortgage-solutions/news/1723224/openconvey-expands-panel
http://www.myintroducer.com/view.asp?ID=4199
http://www.mortgagestrategy.co.uk/conveyancing/openconvey-adds-breeze-and-wyles-to-conveyancing-panel/1015352.article
Jonathan Hall, Commercial Director of OpenConvey said:"We are very pleased to have Breeze & Wyles join us. They are one of the top ten law firms in England and Wales by Land Registry applications. Not only do they represent the kind of regional practice which is a vital part of the OpenConvey ethos, but their investment in technology to maximise efficiency and cut operating costs means that the service our introducers receive will be of the highest quality. Breeze & Wyles have recognised, as we have, that to stay ahead in today's market requires not only the vital human touch but also the best that modern technology can offer."
Adrian Toulson, Conveyancing Manager at Breeze & Wyles commented:"We are delighted to be part of the OpenConvey panel and look forward to dealing with enquiries from their introducers. We have been much impressed with the online service that links us to the introducers and their clients and which has linked seamlessly with our own internal systems. I am in no doubt that our partnership provides a major step forward in simplifying the legal aspect of the house buying process."
For the link to the webpages
http://www.bestadvice.net/story.php?id=18761
http://www.mortgagesolutions-online.com/mortgage-solutions/news/1723224/openconvey-expands-panel
http://www.myintroducer.com/view.asp?ID=4199
http://www.mortgagestrategy.co.uk/conveyancing/openconvey-adds-breeze-and-wyles-to-conveyancing-panel/1015352.article
Friday, 16 July 2010
Judicial Review of Digital Economy Act
If it wasn't bad enough that the current administration has inherited a bloated public sector now it appears in a mad un-thought out rush in the 'wash up' the previous administration has left the current version with another headache.
Two of the largest UK Internet Service Providers (ISP) BT and Talk Talk are launching a legal challenge to the Digital Economy Act. The Act allows those caught file sharing music and film to be removed from the internet. The Act includes provisions relating to communications, infrastructure, broadcasting, copyright licensing and online activities. However, it is this point that is of most concern to ISPs and others. However, other issues arise such as in an attempt to 'simplify' the copright regime the Act appears tol make it more complex. The French government operating a similar regime to that in the Act has on a number of occasions found that it is investigating itself for use of material without the correct copyright holders consent.
It is about time that the 'wash up' process was a thing of the past as it allows legislation to be passed almost unscrutinised.
Thursday, 8 July 2010
10% reduction in Corporate Insolvencies year on year
An influential report from Accountants PWC reports that in the second quarter of 2010 corporate insolvencies decreased from the same quarter in 2009 by 10%. It has described this as a sign of the easing of the economic conditions.
Is it?
Certain sectors remained static year on year and perhaps more importantly the real estate sector has continued to worsen. Pressure is being placed on Landlords by the potential for tenant failure. This has a four-fold impact causing;
1. a loss of rental income
2. the requirement to pay empty commercial rates
3. making up the shortfall on service charges and insurance
4. reinstating the premises to good and tenantable repair
As tenants continue to fail this will have a depressing effect on the rental value as ever increasing numbers of properties are available to let. Moreover, this then has a negative impact on the re-sale value of the property. Clearly then the banks face increasing concern surrouding the value covenants built into their lending criteria enhancing the risk of foreclosure.
In respect of private sector landlords the concerns may actually bear fruit in coming months as a significant number of tenants are within the public sector supply chain or registered social landlords placing tenants in the private sector. With the squeeze on public sector spend it is almost certain that funds available to place new tenants will decrease and perhaps more importantly funding will be reduced or removed in respect those currently placed.
Perhaps it was a little premature to say that the signs were of economic conditions easing. It seems more pain in only a step away.
Is it?
Certain sectors remained static year on year and perhaps more importantly the real estate sector has continued to worsen. Pressure is being placed on Landlords by the potential for tenant failure. This has a four-fold impact causing;
1. a loss of rental income
2. the requirement to pay empty commercial rates
3. making up the shortfall on service charges and insurance
4. reinstating the premises to good and tenantable repair
As tenants continue to fail this will have a depressing effect on the rental value as ever increasing numbers of properties are available to let. Moreover, this then has a negative impact on the re-sale value of the property. Clearly then the banks face increasing concern surrouding the value covenants built into their lending criteria enhancing the risk of foreclosure.
In respect of private sector landlords the concerns may actually bear fruit in coming months as a significant number of tenants are within the public sector supply chain or registered social landlords placing tenants in the private sector. With the squeeze on public sector spend it is almost certain that funds available to place new tenants will decrease and perhaps more importantly funding will be reduced or removed in respect those currently placed.
Perhaps it was a little premature to say that the signs were of economic conditions easing. It seems more pain in only a step away.
Mortgage Repossession Tenancy Protection Commencement Date Announced
On 29 June 2010 Grant Shapps, Minister of State in the Department for Communities and Local Government with particular responsibility for Housing gave the go ahead for the implementation of the Mortgage Repossessions (Protection of Tenants etc) Act 2010 as from 1 October 2010. The full extract of the Act can be found at http://www.opsi.gov.uk/acts/acts2010/ukpga_20100019_en_1
From this date unlawful tenants (those tenants in occupation where the Mortgage company has not given consent) will have certain rights in relation to repossession proceedings where no rights existed previously. These are: -
1 Power of court to postpone giving of possession
(1) This section applies if--
(a) the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action (other than an action for foreclosure) in which the mortgagee claims possession of the mortgaged property, and
(b) there is an unauthorised tenancy of all or part of the property.
(2) When making an order for delivery of possession of the property, the court may, on the application of the tenant, postpone the date for delivery of possession for a period not exceeding two months.
(3) Subsection (4) applies where an order for delivery of possession of the property has been made but not executed.
(4) The court may, on the application of the tenant ("the applicant"), stay or suspend execution of the order for a period not exceeding two months if--
(a) the court did not exercise its powers under subsection (2) when making the order or, if it did, the applicant was not the tenant when it exercised those powers,
(b) the applicant has asked the mortgagee to give an undertaking in writing not to enforce the order for two months beginning with the date the undertaking is given, and
(c) the mortgagee has not given such an undertaking.
(5) When considering whether to exercise its powers under this section, the court must have regard to--
(a) the circumstances of the tenant, and
(b) if there is an outstanding breach by the tenant of a term of the unauthorised tenancy--
(i) the nature of that breach, and
(ii) whether the tenant might reasonably be expected to have avoided breaching that term or to have remedied the breach.
(6) The court may make any postponement, stay or suspension under this section conditional on the making of payments to the mortgagee in respect of the occupation of the property (or part of the property) during the period of the postponement, stay or suspension.
(7) The making of any payment pursuant to--
(a) a condition of an undertaking of a kind mentioned in subsection (4)(c), or
(b) a condition imposed by virtue of subsection (6),
is not to be regarded as creating (or as evidence of the creation of) any tenancy or other right to occupy the property.
(8) For the purposes of this section there is an "unauthorised tenancy" if--
(a) an agreement has been made which, as between the parties to it (or their successors in title), is or gives rise to--
(i) an assured tenancy (within the meaning of the Housing Act 1988), or
(ii) a protected or statutory tenancy (within the meaning of the Rent Act 1977), and
(b) the mortgagee's interest in the property is not subject to the tenancy.
(9) In this section "the tenant", in relation to an unauthorised tenancy, means the person who is, as between the parties to the agreement in question (or their successors in title), the tenant under the unauthorised tenancy (or, if there is more than one tenant, any of them).
2 Notice of execution of possession order
(1) This section applies where the mortgagee under a mortgage of land which consists of or includes a dwelling-house has obtained an order for possession of the mortgaged property.
(2) The order may be executed--
(a) only if the mortgagee gives notice at the property of any prescribed step taken for the purpose of executing the order, and
(b) only after the end of a prescribed period beginning with the day on which such notice is given.
(3) "Prescribed" means prescribed by regulations made by the Secretary of State.
(4) Regulations made by the Secretary of State may prescribe the form of notices and the way in which they must be given.
(5) The regulations may make supplementary, incidental, transitional or saving provision.
(6) Regulations under this section may be made only with the consent of the Lord Chancellor.
(7) Regulations under this section are to be made by statutory instrument.
(8) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
In effect this means that the Tenant can now intervene in the repossession proceedings to prevent an eviction taking place for up to two months. Moreover, whilst not specifically stating it the Act provides a mechanism whereby this can be agreed by the mortgagee with the tenant in advance of a hearing so that the court could rubber stamp the proposal. Such proposals can be conditional on the Tenant doing certain things. For instance it is envisaged that the Tenant might continue to pay the rent but to the mortgage company rather than the Landlord/Mortgagor.
Lenders had previously been reluctant to have any dealings with the Tenant as this might be considered to be an acceptance of the tenancy and as a result make it impossible to obtain possession of the property quickly. The Act provides that this does not happen.
Property recovery professionals will be watching this space carefully to see how the courts interpret and implement this legislation. The courts, even to the extent of individuals courts, tend to apply reasoning that defies belief in some cases and it is essential that practitioners are aware of the process of implementation on a court by court basis.
If you have a situation similar to this or wish further advice on this or other Housing and tenancy issues please contact Brendan O'Brien at brendan.obrien@breezeandwyles.co.uk or on 01279 715322
From this date unlawful tenants (those tenants in occupation where the Mortgage company has not given consent) will have certain rights in relation to repossession proceedings where no rights existed previously. These are: -
1 Power of court to postpone giving of possession
(1) This section applies if--
(a) the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action (other than an action for foreclosure) in which the mortgagee claims possession of the mortgaged property, and
(b) there is an unauthorised tenancy of all or part of the property.
(2) When making an order for delivery of possession of the property, the court may, on the application of the tenant, postpone the date for delivery of possession for a period not exceeding two months.
(3) Subsection (4) applies where an order for delivery of possession of the property has been made but not executed.
(4) The court may, on the application of the tenant ("the applicant"), stay or suspend execution of the order for a period not exceeding two months if--
(a) the court did not exercise its powers under subsection (2) when making the order or, if it did, the applicant was not the tenant when it exercised those powers,
(b) the applicant has asked the mortgagee to give an undertaking in writing not to enforce the order for two months beginning with the date the undertaking is given, and
(c) the mortgagee has not given such an undertaking.
(5) When considering whether to exercise its powers under this section, the court must have regard to--
(a) the circumstances of the tenant, and
(b) if there is an outstanding breach by the tenant of a term of the unauthorised tenancy--
(i) the nature of that breach, and
(ii) whether the tenant might reasonably be expected to have avoided breaching that term or to have remedied the breach.
(6) The court may make any postponement, stay or suspension under this section conditional on the making of payments to the mortgagee in respect of the occupation of the property (or part of the property) during the period of the postponement, stay or suspension.
(7) The making of any payment pursuant to--
(a) a condition of an undertaking of a kind mentioned in subsection (4)(c), or
(b) a condition imposed by virtue of subsection (6),
is not to be regarded as creating (or as evidence of the creation of) any tenancy or other right to occupy the property.
(8) For the purposes of this section there is an "unauthorised tenancy" if--
(a) an agreement has been made which, as between the parties to it (or their successors in title), is or gives rise to--
(i) an assured tenancy (within the meaning of the Housing Act 1988), or
(ii) a protected or statutory tenancy (within the meaning of the Rent Act 1977), and
(b) the mortgagee's interest in the property is not subject to the tenancy.
(9) In this section "the tenant", in relation to an unauthorised tenancy, means the person who is, as between the parties to the agreement in question (or their successors in title), the tenant under the unauthorised tenancy (or, if there is more than one tenant, any of them).
2 Notice of execution of possession order
(1) This section applies where the mortgagee under a mortgage of land which consists of or includes a dwelling-house has obtained an order for possession of the mortgaged property.
(2) The order may be executed--
(a) only if the mortgagee gives notice at the property of any prescribed step taken for the purpose of executing the order, and
(b) only after the end of a prescribed period beginning with the day on which such notice is given.
(3) "Prescribed" means prescribed by regulations made by the Secretary of State.
(4) Regulations made by the Secretary of State may prescribe the form of notices and the way in which they must be given.
(5) The regulations may make supplementary, incidental, transitional or saving provision.
(6) Regulations under this section may be made only with the consent of the Lord Chancellor.
(7) Regulations under this section are to be made by statutory instrument.
(8) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
In effect this means that the Tenant can now intervene in the repossession proceedings to prevent an eviction taking place for up to two months. Moreover, whilst not specifically stating it the Act provides a mechanism whereby this can be agreed by the mortgagee with the tenant in advance of a hearing so that the court could rubber stamp the proposal. Such proposals can be conditional on the Tenant doing certain things. For instance it is envisaged that the Tenant might continue to pay the rent but to the mortgage company rather than the Landlord/Mortgagor.
Lenders had previously been reluctant to have any dealings with the Tenant as this might be considered to be an acceptance of the tenancy and as a result make it impossible to obtain possession of the property quickly. The Act provides that this does not happen.
Property recovery professionals will be watching this space carefully to see how the courts interpret and implement this legislation. The courts, even to the extent of individuals courts, tend to apply reasoning that defies belief in some cases and it is essential that practitioners are aware of the process of implementation on a court by court basis.
If you have a situation similar to this or wish further advice on this or other Housing and tenancy issues please contact Brendan O'Brien at brendan.obrien@breezeandwyles.co.uk or on 01279 715322
Tuesday, 6 July 2010
Breeze and Wyles Solicitors LLP demonstrates position as volume power house
In a depressed property market Breeze & Wyles has continued to go from strength to strength. Over previous months the Firm has moved up the rankings from data relating to Land Registry (http://www.landregistry.co.uk/) applications made per month and currently stands at Number Five. This excludes those firms handling block transfers and lenders making discharge applications.
It is envisaged that Breeze & Wyles will move further up the rankings in coming months as work comes from new work sources recently acquired. The new work acquisition is based on the Firm's ability to demonstrate customer service focused cost-efficient service to its clients time and again throughout the transaction.
It is envisaged that Breeze & Wyles will move further up the rankings in coming months as work comes from new work sources recently acquired. The new work acquisition is based on the Firm's ability to demonstrate customer service focused cost-efficient service to its clients time and again throughout the transaction.
Friday, 2 July 2010
Mansion Tax to be implemented from 6 April 2011
With effect from 6 April 2011 the rules on Stamp Duty will change. The Coalition will see stamp duty paid at the current rates on transactions up to £1,000,000. However, for properties worth more than a million pounds will be taxed at 5%.
Currently stamp duty is payable on all residential properties as follows: -
0-£125,000 nil
£125,001-£250,000 1%*
£250,001-£500,000 3%
£500,000 and above 4%
From 6 April 2011 a new band will be introduced and the stamp duty regime will look like this: -
0 - £125,000 nil
£125,001 - £250,000 1%*
£250,001 - £500,000 3%
£500,001 - £1,000,000 4%
£1,000,001 and above 5%
*The Finance Bill also exempts first time buyers from paying any stamp duty on residential purchases up to £250,000. The Bill defines first time buyer as a person who: "has not previously been a purchaser in relation to a relevant acquisition of a major interest in land which consisted of or included residential property."
H M Treasury has said: "We have made the tough choices needed to get our borrowing down, but we will do it in a way that is fair, protects the vulnerable and supports businesses across Britain."
Currently stamp duty is payable on all residential properties as follows: -
0-£125,000 nil
£125,001-£250,000 1%*
£250,001-£500,000 3%
£500,000 and above 4%
From 6 April 2011 a new band will be introduced and the stamp duty regime will look like this: -
0 - £125,000 nil
£125,001 - £250,000 1%*
£250,001 - £500,000 3%
£500,001 - £1,000,000 4%
£1,000,001 and above 5%
*The Finance Bill also exempts first time buyers from paying any stamp duty on residential purchases up to £250,000. The Bill defines first time buyer as a person who: "has not previously been a purchaser in relation to a relevant acquisition of a major interest in land which consisted of or included residential property."
H M Treasury has said: "We have made the tough choices needed to get our borrowing down, but we will do it in a way that is fair, protects the vulnerable and supports businesses across Britain."
Thursday, 1 July 2010
Commercial Litigation Solicitor required
Solicitor - Commercial Litigation
Breeze & Wyles Solicitors LLP is a regional law firm with a strong reputation for delivering excellence in quality and service. The firm is located in Hertfordshire and Middlesex and offers a comprehensive range of commercial, property, private client and litigation services, with a variety of specialist departments within these work types.
Due to business development requirements we now have a position available for a solicitor specialising in commercial litigation work. This is a new role as part of the expansion of the litigation team at the firm.
Reporting directly to the Head of Litigation, the role requires a dedicated and experienced commercial litigation solicitor to develop and manage a full caseload of commercial litigation work. A comprehensive knowledge of commercial litigation law and relevant experience (3+ years PQE) is essential, along with the drive and determination to successfully build on an existing client base, develop strong client relations and promote the commercial litigation services of the firm in the local market. Leadership and marketing skills are important requirements for the role, in addition to technical expertise. An existing following is preferable but not essential.
This is a full time post and will be based at our office in Hertford.
To apply please email your CV and a covering letter to
Stephen Blake, HR Manager (email: recruit@breezeandwyles.co.uk)
www.breezeandwyles.co.uk
Breeze & Wyles Solicitors LLP is a regional law firm with a strong reputation for delivering excellence in quality and service. The firm is located in Hertfordshire and Middlesex and offers a comprehensive range of commercial, property, private client and litigation services, with a variety of specialist departments within these work types.
Due to business development requirements we now have a position available for a solicitor specialising in commercial litigation work. This is a new role as part of the expansion of the litigation team at the firm.
Reporting directly to the Head of Litigation, the role requires a dedicated and experienced commercial litigation solicitor to develop and manage a full caseload of commercial litigation work. A comprehensive knowledge of commercial litigation law and relevant experience (3+ years PQE) is essential, along with the drive and determination to successfully build on an existing client base, develop strong client relations and promote the commercial litigation services of the firm in the local market. Leadership and marketing skills are important requirements for the role, in addition to technical expertise. An existing following is preferable but not essential.
This is a full time post and will be based at our office in Hertford.
To apply please email your CV and a covering letter to
Stephen Blake, HR Manager (email: recruit@breezeandwyles.co.uk)
www.breezeandwyles.co.uk
RSM buys parts of the business of Vantis!
To most this would seem like a further consolidation in the UK and International Accountancy and Restructuring market.
Far from it! On Tuesday Vantis whose expertise extends to Insolvency and Restructuring appointed Administrators after being unable to agree terms with their bankers on their debt (approximated at £50m). A fortnight ago, when the shares of Vantis were suspended on the Alternative Investment Market, it had a market capitalisation of around £6.8m.
In effect, the purchase by RSM has broken Vantis in two, an MBO having already been carried out in respect of the Business Recovery Service by FRP Advisory.
Many questions will be asked about this situation in the coming weeks but given the level of criticism directed at the members of Halliwells LLP who filed a notice of intention to appoint Administrators in the last few days one must question how a Business Advisory Service could do the same particularly given its areas of expertise and market reputation.
Perhaps it is because professional services businesses are bearing the brunt of the economic downturn, or, is it that the insolvency market has yet to see the rise in the number of insolvencies that have occured in past recessions.
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