Investing in Property 2016 brings together three minds in the world of business and finance to talk about the options and opportunities surrounding commercial property investment.

Date: Thursday 30 June 2016
Event type: Joint seminar with Matiolli Woods, Sydney Mitchell and Together Money
Venue: Colmore Gate, 7th floor Colmore Gate, Birmingham, B3 2QD
Time: 11:30pm – 2:00pm
Cost: Free

Property Investment Seminar Sydney Mitchell Matiolli Woods Together Money

Programme

11:30amRegistration accompanied by tea and coffee

12:00pmBuying and selling commercial property: getting it right the first timeStewart Coles, Sydney Mitchell

Stewart will discuss certain important legal issues for investors to consider when buying or selling commercial property with some tips and advice on how to help the transaction proceed as smoothly as possible, and how to avoid certain pitfalls and problems that can arise. He will also discuss some recent changes in the law and their potential impact on commercial property investors, covering topics such as Stamp Duty, VAT, and Capital Allowances.

12:20pmTogether Money and finance solutionsMark Finucane, Together Money

Together is an alternative funding partner, or specialist lender, which simply means we are able to provide a broad range of loan options available to businesses and individuals beyond the traditional bank loan route.

Mark will introduce Together and its offering, giving a brief summary of the history of the business, which has been successfully delivering finance solutions for more than 40 years, and will provide some recent examples of deals in the property sector where Together has helped clients meet their financial goals.

12:40pmPrivate pension funds and commercial propertiesPaul Cliffe and Steve Eggleton, Consultants, Mattioli Woods plc

Utilising the investment flexibility afforded to self-managed pension arrangements can be an effective strategy to access funds in order to finance commercial property developments/acquisitions.

This section will provide an insight into how a private pension fund can assist with the purchase of commercial property, including the ability for the pension to borrow and how the purchase can be structured with additional investors. Moreover, Paul and Steve will provide a valuable update on the recent changes to pension legislation and talk through some real-life case studies to illustrate some of the property planning opportunities available.

1:00pmBuffet lunch and networking

Speaker profiles

Stewart Coles, Associate, Sydney Mitchell
Stewart deals with a wide range of commercial property transactions; including acquisitions and disposals, secured lending, and non-contentious Landlord and Tenant work. He has developed specialist expertise in dealing with property transactions involving pension schemes, and has acted for the majority of the leading SIPP providers. He regularly acts on behalf of SIPPs and SSASs on the purchase, sale and leasing of commercial premises, as well as dealing with transactions which are specific to pension schemes, including in specie transfers and in specie contributions.
0121 698 2200, s.coles@sydneymitchell.co.uk

Mark Finucane ACIB, Regional Development Manager, Together Money
Having previously worked in commercial banking with a high street lender, Mark has a thorough understanding of the financial services industry. A keen property investor himself, he has over 20 years’ experience in the property finance sector. He is also a long-standing member of the Institute of Sales and Marketing Management, as well as a qualified business mentor. As a relationship manager for specialist lender Together, Mark is committed to developing partnerships with professional introducers across the Midlands.
07718 563 145, mark.finucane@togethermoney.com

Paul Cliffe, Wealth Management Consultant, Mattioli Woods
Paul Cliffe joined Mattioli Woods after graduating from Nottingham Trent University in 2008 with a BA (Hons) in Business Economics. His career began as an account manager handling the day-to-day administration of SIPP and SSAS schemes. As part of his development into consultancy, Paul assisted Chief Executive Ian Mattioli, with the management of his clients. After achieving Chartered Financial Planner status, Paul continued his professional qualifications to become a Fellow of the Personal Finance Society. Paul became the first winner of the Insurance Institute of Leicester Young Achiever of the Year award and recently won national Newly Qualified Advisor of the Year. He is now applying his extensive knowledge and experience to benefit his existing clients and professional contacts throughout the UK.
07730 764 651, paul.cliffe@mattioliwoods.com

Steve Eggleton, Wealth Management Consultant, Mattioli Woods
Steve joined Mattioli Woods in 1997 after graduating with a degree in Law and worked as an account manager initially before becoming a consultant with responsibility for a portfolio of SSAS and SIPP clients throughout the UK. In 2002, Steve left Mattioli Woods to establish his own pension consultancy business, where he continued to focus on the self-administered pensions market as well as advising on overseas pension transfers for expatriates and high-net-worth foreign nationals. This led him to return to Mattioli Woods in 2009, where he continues to develop his portfolio of clients.
07540 049 460, steve.eggleton@mattioliwoods.com

If you would like to attend, please contact - Jordan Storey-Knott by telephone on 0116 240 8700.

Alternatively, you can click here to book online.

The law frowns on unreasonable contractual terms contained within standard terms of business – but what exactly does the latter phrase mean? The Court of Appeal considered that issue in an important test case that will be required reading for anyone involved in the lending industry.

A consortium of three banks had lent $150 million to a company engaged in an oil production programme in Nigeria. The company defaulted and, following litigation, it no longer disputed its obligation to repay the loan in full. An associated company and an individual who had each guaranteed repayment of the loan also accepted that they were liable to make repayment.

The company and the guarantors, however, had put forward counterclaims against the banks, said to be worth $1 billion, and sought to set those claims off against the debt. The banks pointed to an exclusion clause in the loan agreement that stated that sums repayable would be calculated without any deduction in respect of set-offs or counterclaims.

It was submitted by the company and the guarantors that the exclusion clause was of no effect by virtue of Section 3 of the Unfair Contract Terms Act 1977. Section 3 provides that, where contractors deal with consumers on standard terms of business, the former cannot rely upon such terms to exclude or restrict liability in respect of any failure to perform their contractual obligations. Such terms also cannot be used to justify contractors rendering a contractual performance substantially different from that which is reasonably expected of them.

The company's and the guarantors’ arguments in respect of Section 3 fell on fallow ground, however, after a judge found that the relevant exclusion clause was not a standard term of business. Summary judgment was entered against them for the entire sum owing.

In dismissing their challenge to that ruling, the Court noted that the exclusion clause in question had been recommended by the Loan Market Association and was in common use in the industry. There was no evidence that the banks habitually refused to negotiate specific terms with borrowers and, in the instant case, detailed negotiations had in fact taken place. In those circumstances, it was impossible to say that the terms ultimately agreed were the banks’ standard terms of business and Section 3 could thus not be relied upon.

For any further advice, please contact Kamal Majevadia 0121 746 3300 email, k.majevadia@sydneymitchell.co.uk or fill in our online enquiry form.

The potential liabilities of freeholders under the Defective Premises Act 1972 came under the spotlight in a Court of Appeal test case, arising from a tragic accident in which a tourist on honeymoon was fatally injured in a fall down stairs.

The tourist was staying at a London flat when he fell. His widow subsequently sued the freeholder, the tenant under a 125-year head lease and the under-lessee. She challenged a judge’s decision to grant summary judgment to the freeholder on the basis that her claim against it had no real prospect of success.

In ruling on the matter, the Court noted that, under the head lease, the primary duty to repair and maintain the property fell upon the tenant. However, the freeholder retained the right to notify the tenant of any defaults and, if necessary, to enter the property and to carry out works at the tenant’s expense.

The tenant had replaced the property’s staircase in the 1980s and it was assumed for the purposes of the litigation that the freeholder had consented to those works. The new staircase did not comply with building regulations, in that it was too steep and either did not have a handrail or the handrail had later been removed.

The widow’s lawyers submitted as follows:

  • The removal of the original staircase amounted to a breach of covenant;
  • That breach had not been remedied by the installation of the non-compliant staircase; and
  • The existence of the freeholder’s right to enter the property to rectify that breach gave rise to a duty under the Act that was owed to the widow.

In dismissing her appeal, however, the Court found that those arguments did not take account of the scheme of the head lease as a whole. On the basis that the freeholder had consented to the alterations, it could not plausibly be argued that the removal of the old staircase amounted to a breach of the lease. The freeholder’s right to enter the property in order to ensure installation of a compliant staircase had thus not been triggered.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Judges are on the alert to ensure that debtors receive a fair hearing at every stage of insolvency proceedings. In one case that proved the point, the High Court granted a businessman a fresh opportunity to seek an annulment of his bankruptcy.

A company to whom the businessman owed a £10 million judgment debt issued a bankruptcy petition against him. He argued that, by virtue of Section 256 of the Insolvency Act 1986, the English courts had no jurisdiction to consider the matter. That was on the basis that he was neither domiciled nor ordinarily resident in England and did not have his centre of main interests here.

In disputing those arguments, the company pointed out, amongst other things, that the businessman had been personally served in London with a statutory demand for the sum due. A bankruptcy order was granted against him and his bid to have that order annulled was rejected by a judge.

In upholding his appeal against the latter decision, however, the Court noted that the judge had failed to read or consider new material that the businessman had sought to put before her in support of his jurisdictional arguments. Her determination had thus been infected by a serious irregularity and the businessman had not received a fair hearing. In the circumstances, his annulment application was sent back for fresh consideration by a different judge.

For help and advice please contact Leanne Schneider-Rose on 0121 698 2200, email l.schneider-rose@sydneymitchell.co.uk or fill in our online enquiry form.

Ignoring debt problems is simply not an option and a delay in seeking professional advice can have disastrous consequences. In one case that proved the point, a man was made bankrupt having lost the opportunity to challenge a demand for payment of more than £11,000 in Council Tax arrears.

The man denied that he owed the debt on the basis that he had been abroad and not in occupation of the relevant property for much of the period to which the tax bills related. He denied having received letters from the local authority and all knowledge of liability orders that had been made against him by magistrates.

He was in due course served with a statutory demand but, rather than seeking professional help, he did nothing for about three months as the council set bankruptcy proceedings in train. He ended up representing himself before a judge and was declared bankrupt after being refused an adjournment.

In dismissing his appeal against that decision, the High Court rejected arguments that the judge should have delayed the case so that he could challenge the liability orders before the Valuation Tribunal. Given his prolonged inactivity, the judge was entitled to conclude that he had no bona fide intention to make such a challenge.

For help and advice please contact Gemma Parker on 0121 698 2200, email g.parker@sydneymitchell.co.uk or fill in our online enquiry form.

A Lease of commercial premises will usually place the responsibility of arranging buildings insurance on the Landlord - it is in the Landlord’s interest to cover its premises against “all risks” and if it has a mortgage secured against its premises, it will have an obligation to ensure that the premises are insured and kept insured.

A failure to insure can expose all concerned to the risk of catastrophic loss.

In one case, a Landlord who failed in that duty received a stiff fine for breaching a High Court order.

The corporate Landlord of a large Victorian civic building had covenanted with its Tenants that it would arrange comprehensive building insurance. As expiry of the policy then in place approached, however, the insurer had required a large number of safety improvements to be made to the premises before it would be renewed.

The Landlord failed to arrange fresh insurance and, after the policy came to an end, the Tenant of part of the premises had no choice but to arrange alternative cover at its own expense. The Tenant launched proceedings and the Landlord gave a formal undertaking to the Court that it would meet its obligations under the Lease and ensure that the required insurance cover was in place by a particular date.

That deadline was missed by more than two months, however, and the Tenant issued contempt proceedings. The Landlord agreed cover with insurers shortly before the hearing of the case and apologised after admitting that it had breached the undertakings. After the Court inquired into the extent of their resources, the Landlord and its sole director were each fined £3,750. The director was warned that, in default of payment, he would serve six weeks’ imprisonment.

For more information, please contact Shilpa Unarkat on 0121 746 3300 email, s.unarkat@sydneymitchell.co.uk or complete our online enquiry form.

Staff pregnancies can be unsettling, particularly for small businesses with limited resources, but it is vital employers do not allow their decision-making to become tainted by discrimination. In one case, a hair stylist who was dismissed after she took time off, suffering from morning sickness, won the right to substantial compensation.

The stylist was a trusted and senior member of staff at a small hair salon. She had a positive and friendly relationship with the salon’s owner, who had come to rely heavily upon her. However, after discovering that she was pregnant with her fourth child, the hair stylist began a period of sickness absence from which she was never to return. She was dismissed despite her GP having certified her as fit to go back to work and was not informed of her right of appeal.

The owner argued her dismissal had nothing to do with her pregnancy. She was said to have exhibited a pattern of unreliable behaviour, including unauthorised absences and a number of occasions on which she brought her children to work, resulting in disruption to the business. An Employment Tribunal (ET), however, found the owner’s evidence in those respects was largely unsatisfactory and unreliable.

The ET accepted the owner did have some concerns about the stylist’s history of absences and bringing her children to the salon. However, it noted the stylist had been dismissed within a matter of weeks of telling the owner she was pregnant and during a period of pregnancy-related sickness absence.

There was evidence the owner had expressed frustration about the disruption that would arise from the stylist’s childcare arrangements and had said words to the effect that she only wished to employ people without children. The burden of proof fell upon the owner and the ET found on the evidence that the stylist would not have been dismissed had she not been pregnant.

The stylist’s complaints of direct pregnancy discrimination, under Section 18 of the Equality Act 2010, and of unfair dismissal, under Section 99 of the Employment Rights Act 1996, were both upheld. The amount of her compensation would be assessed at a further ET hearing.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

Drafting wills may appear easy and many people are tempted to save a few pounds by dispensing with legal advice. However, as one High Court case clearly showed, the words used can have particular legal effects that could not be foreseen by a layman and a thorough knowledge of the law is therefore essential.

The case concerned a will by which, after specific legacies, a woman bequeathed the residue of her £437,508 estate equally to those of her three sons who were living at the date of her death. Two of them died before her, one of them having had a daughter. An issue thus arose as to whether the latter was entitled to inherit her father’s share of the estate. The surviving son argued that he was entitled to the entire estate on the basis that the gift to his brother lapsed on his death.

In ruling on the dispute, the Court noted that a straightforward interpretation of the will supported the surviving son’s arguments. However, that ignored Section 33 of the Wills Act 1837. That provision requires that, where bequests are made to children or other descendants who die before they can inherit, their entitlements will normally pass to any of their own children who survive the donor.

There was no sufficient evidence, either in the wording of the will or in her conduct, that indicated that the woman had intended Section 33 not to apply to her will. In the circumstances, the daughter was entitled to inherit a legacy of almost £50,000 left to her deceased father and his half share of the residuary estate.

For help and guidance on this or other private client matters contact Ravi Sandhu 0121 698 2200 or email, r.sandhu@sydneymitchell.co.uk.

Developments that require planning permission do not become permitted by default just because of delays in local authority decision-making. The Court of Appeal made that point in a guideline decision concerning a hardcore track that was laid down without planning consent to serve a Christmas tree plantation.

The owner of the smallholding had applied to a local authority for a determination as to whether the latter’s prior approval was required for the track or whether it would be an automatically permitted development of agricultural land. The council did not respond to the application within the 28 days required by the Town and Country Planning (General Permitted Development) Order 1995.

After the owner pressed ahead with the work the council issued enforcement notices that required removal of two sections of the track. In a decision that was later upheld by the High Court, a government planning inspector found that the sections were not reasonably necessary for the purposes of agriculture or forestry and that planning permission had thus been required.

In rejecting the owner’s appeal and upholding the enforcement notices, the Court of Appeal found that the relevant parts of the track had not become permitted merely by virtue of the council's failure to meet the 28-day deadline. The Court noted that that conclusion was entirely compatible with certainty and efficiency in the regime for permitted developments.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Judges can and do make mistakes, but their evaluation of factual evidence and the credibility of witnesses is usually final and is very rarely successfully challenged. The point could hardly have been more clearly made than by one case in which a man claimed that his signature on a property transfer had been forged.

The dispute concerned a plot of development land that had initially been held jointly by the man and his former business partner. After their ways parted, the land was transferred to a company owned by the partner and ultimately to the partner himself. The man claimed that his signature on the initial transfer was a forgery and that he had thus retained a beneficial interest in the land. In rejecting his claim, however, a judge accepted the partner’s explanation as to why the transfer had been agreed and the evidence of a witness who had seen the document being signed.

In challenging the decision before the High Court, the man argued that the judge’s acceptance of implausible evidence amounted to an error of law. However, in rejecting his appeal, the Court noted that he bore the burden of proving that his signature was not genuine. Elements of the judge’s decision did not withstand scrutiny, but it was for him to assess the witnesses’ veracity.

For further advice please contact Preena Lal on 0121 698 2200, email p.ranpuria@sydneymitchell.co.uk or fill in our online enquiry form

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