There is no such thing as a standard lease.  When a client rings me and asks me to either draw up a lease or check one that has been drawn up, the first question I ask is “what have you agreed?”  

 The Heads of Terms are the blue print solicitors use to draw up and agree the lease.  Whilst generally they are not binding on the parties, once they have been agreed, it can be hard for either party’s solicitor to justify a radical departure from them without putting the deal at risk.

 So what is covered by the Heads of Terms?

 The Rent

 The amount of the rent is one of the most important terms.  There is no exact figure that is the correct amount so take advice, or research the market yourself

 The other terms of the lease will have an impact on the rent.  The more favourable these are to the tenant, the higher the rent the landlord will want, and vice versa.

 Rent is usually payable in advance and generally either monthly or quarterly.  Monthly is better for a tenant’s cash flow.  Most landlords prefer quarterly.  It may be possible for a tenant to agree, as a personal concession, monthly payments.

 Incentives

 It is sometimes possible, particularly in the current market, for a tenant to agree a rent free period and/or a capital payment with the landlord.  This may be to assist the tenant in fitting out the premises, or to enable the tenant to bring the premises up to a good state of repair. 

 The length of the Lease

 This is often referred to as the Term of the Lease.  Due to various factors leases nowadays are usually shorter than they used to be. 

 Many parties agree leases of 7 years or less, to avoid the need and the expense (for the tenant) of registering the lease at the land registry. 

 10 year terms are reasonably common to give both the landlord and the tenant a longer period of “security” and to avoid the cost of having to re-do the lease sooner. 

 The impact of Stamp Duty Land Tax has a bearing on the length of the lease as whether it is payable and if it is, the amount payable will depend upon a combination of the rent and the length of the term. 

 Rent Reviews

 These are usually agreed on an upward only basis.  Very few landlords are prepared to agree upward or downward rent review provisions.  If though a landlord were to agree one, the quid pro quo would be a higher initial rent.

 Rent review frequencies are usually agreed to tie in neatly with the length of the lease.  As a very general rule, often there is no rent review in a lease of say 3 or 5 years; for a 6 year lease you would expect a rent review at year 3 and for a 10 year lease at year 5. 

 The basis for the review has also to be considered.  The most usual is “open market”.  An alternative would be a review based upon the change in the retail price index.  There are pros and cons for each.

 Repairing Terms

 Most landlords want the tenant to be responsible for or to reimburse – through a service charge – the cost of the maintenance and repair of the premises. 

 Such leases can be onerous.  Tenants should consider limiting their obligations either to the original state of repair of the premises and/or by way of a cap on the service charge payable or to internal repairing terms only. 

 Insurance

 Normally the landlord will insure the premises and the tenant will reimburse the landlord the premium incurred.  The parties need to consider who will bear the risk of uninsured losses – e.g. losses caused by terrorism.

 Rent deposits/guarantor

 Where the tenant is a newly formed company or has no business track record, a landlord will often require the tenant to provide guarantors – for companies often the directors –  or to put up a rent deposit  - anything from a quarter to a full year’s rent – or sometimes both. 

 Rent deposits are “dead” money and if VAT is payable on the rent an amount equivalent to VAT will also have to be deposited and will not be reclaimable through a tenants VAT return. 

 Alterations

 A tenant should discuss with the landlord at this stage of the negotiations any alterations he may wish to make to the premises and ensure that the landlord is prepared to agree to them. 

 Break clauses

 A break clause allows either the tenant or the landlord or both of them – depending upon what is agreed, to break the lease at a certain point on giving an agreed period of notice. 

 Security of Tenure

 Unless a lease has been excluded from the security of tenure provisions of the Landlord & Tenant Act 1954, at the end of the lease a tenant will have a right to renew it.  A landlord will have very limited grounds to refuse a renewal and if the terms of the new lease cannot be agreed, either party can apply to the court to get them fixed. 

 Most landlords want their leases excluded from the security of tenure provisions.  On the other hand it is preferable for tenants to have security. 

 Costs

 Nowadays it is usual for the parties to agree to pay their own costs. 

 Beware of agreements to pay the other party’s costs should you withdraw from the transaction. 

 VAT

The rent payable may be subject to VAT.  If as a tenant you will not be able to reclaim this VAT, the rent payable will be 20% more than anticipated.  It is therefore advisable to check this point at the outset.  Also be aware that a landlord can change the VAT status of the premises at a later date.  If this is likely to be problematical this too needs to be addressed. 

 In conclusion……

 Agreeing Heads of Terms can be complex.  If a landlord has instructed a commercial agent to find a tenant, he will have some guidance.  This will not be true for the tenant.  My advice would be not to proceed without professional advice.  Saving costs could be false economy.  

 If you would like any advice, do please give me a call on 01392 274006 

Kim Walker

With the recent collapse of Jessops, Comet, HMV and Blockbuster, employees are finding themselves in a situation where they are having to assess their rights and entitlement.

There is a difference between an employer being in liquidation and administration.  If your employer is in liquidation, there is no continuing business and you will have no job.  Where your employer is in administration, an administrator will be appointed and will be brought in to see if the business can be kept alive and whether a buyer can take over the whole of the business.

Administration

In administration, as an employee you will not be able to make any immediate legal claim against your employer because the law imposes  a “moratorium” on any claims brought against the company, which means that nobody can bring a claim unless they have consent of either the Court or the administrator.

Administrators have a period of 14 days after their appointment to decide if they want to dismiss the employees to save costs.  If they do so within the 14 day period, those employees become creditors of the administration so will often be part of a long list along with suppliers and other creditors.

If the administrator retains you as an employee beyond the 14 day period then you become a preferential creditor and  you may have a better chance of succeeding in a claim for your outstanding salary and redundancy payment if the business no longer continues to trade.

Liquidation

If your employer is insolvent then under the Insolvency Act 1986 employees are entitled to be paid their salary for 4 months immediately up to the insolvency and this is capped at £800.00.  Employees are also entitled to be treated as a preferred creditor for holiday pay (which is up to 6 weeks) and certain occupational pension payments.  Any additional amount that employees are owed relating to periods for longer than 4 months ranks as a debt along with the other bulk of the creditors.

What if your employer has no funds to pay you?

If your has insufficient funds to pay you from the business then you can apply to the National Insurance Fund for any outstanding payments including salary, notice pay and redundancy.  To qualify your employer must be insolvent and your employment needs to have terminated.  The National Insurance Fund also has caps.  They have a cap of £430.00 a week for unpaid salary up to a maximum of 8 weeks.  6 weeks holiday pay to a maximum of £800.00.

For further information please contact Kate Baker or Terry Chetwood on 01392 274006.

It is that time of year again when most people are buying gifts, but what do you do if your gift is faulty? And what if you want to exchange a present that you do not like and do not have the receipt?

In this article I will explain a bit more about the law relating to your consumer rights.

Faulty Goods

The law relating to sale of goods is relatively straight forward. A seller has to provide goods that are of satisfactory quality and fit for purpose. Your rights under these laws are against the seller not the manufacturer.

Therefore if you receive goods that simply do not work or not work as they should then in certain circumstances you are entitled to reject those goods under the sale of goods act and claim a refund, you should do this in a reasonable time. In most cases, you would want the seller to exchange the goods for a brand new item in working order.

Example: On Christmas Eve Paul buys a model helicopter for his son Matthew and it costs £194.00. Paul gets it home, wraps it up and on Christmas day the helicopter does not work. Under the sale of goods act Paul can demand a replacement or a refund providing he goes back to the seller quickly.

Using the same example lets say that Matthew plays with the helicopter for a month and it then does not work. Paul has the right to take the helicopter back to the shop and ask for the helicopter to be repaired and/or replaced.

Exchanges

This depends on what is in the sellers terms and conditions. At the point of sale, you should ask what the seller’s policy is on returns/exchanges. Some shops offer a refund with a receipt and some only offer credit notes.

If you are buying goods online, or over the telephone, remember that under the long distance selling regulations you have an automatic cooling of period and can return the item within that period.

Example 1: Paul buys the helicopter online and discovers Matthew does not like helicopters anymore. Paul can return the item and request a refund providing he does this within the cooling off period.

Example 2: Paul buys a helicopter from a local toy shop and at point of sale there is a sign saying “We are happy to exchange any goods providing there is proof of purchase”. Furthermore before Paul pays for the goods he is advised by the sales assistant that there are no refunds just exchanges on goods bought. At this point, Paul can choose to leave or continue with the purchase. Paul decides to buy the goods and hopes that his son likes his present. If the helicopter was faulty, Paul can still demand a refund under the sale of goods act legislation as referred to above.

If you have any queries relating to this article or consumer laws please telephone Kate Baker on 01392 274006

 There are different levels depending on your age and whether you are an apprentice.

 From 1 October 2012 the rates are as follows-;

• £2.65- the apprentice rate for apprentices under 19 or 19 and over in their first year of apprenticeship (previously £2.60)

• £3.68- the 16-17 rate for workers above school leaving age but under 18 (previously £3.68)

• £4.98- the 18-20 rate (previously £4.98)

• £6.19- For workers 21 and over (previously £6.08)

Author – Kate Baker

 Star wars

 Creator George Lucas lost his Court battle last year in relation to the Storm trooper helmets.

 Lucas sued a prop maker who kept the moulds used to make the trooper helmets in the film Star Wars Episode IV a new hope and who sold replica’s of the helmets to fans.

 UK Judges in the Supreme Court concluded that the helmets did not have copyright protection because it was not a “sculpture”

 Apple-v-Samsung

Apple has been awarded more than $1 billion in damages by a jury as it won its patent-infringement case against Samsung in theUSA.

The jury decided that the majority of Samsung smartphones and tablets violate patents held by Apple including features such as the zoom in and out innovation achieved by tapping the screen.

The jury also decided that Samsung’s infringement was intentional and said the firm’s counter-suit for $399 million against Apple was without merit.

Beatle-mania

A bid by Dutch company You-Q to trademark the word “Beatle” for use on electric wheelchairs has been blocked by EU judges.

The EU Judges ruled there was a risk of confusion with the pop group and a product using the group’s name would benefit unfairly from the association.

The Judges ruled that the word “Beatle” has a distinctive character so that, when faced with the public at large, in particular in the non-English speaking countries of the EU, they will immediately think of the eponymous group and their products”

 Little Mix

 Last years X factor winners Little Mix were launched with the name “rhythmix” which is the same name as a charity working with vulnerable young people.

 The Charity expressed its concern that the name of the band may lead to confusion and launched a public campaign against the X factor.

 The band then changed its name to Little Mix

For more information please contact Kate Baker on 01392 274006

 If you have a business you are likely to have Intellectual Property (IP)and it may be one or more of the following-;

• Brands & logo’s
• Inventions
• Software
• Designs
• Music
• Books
• Poems
• Graphic Design
• Paintings
• Photography

 It is important to protect your business by securing intellectual property rights.

 What are Intellectual Property Rights?

 In theUKthere are 4 main types of Intellectual Property rights-;

1)     Copyright

2)     Trademark

3)     Patents

4)     Designs

Copyright

This covers artistic work including photography, music, broadcasts.

 So long as you have created original work that qualifies for copyright protection (it falls into one of the categories of material protected by copyright), you will have copyright protection without having to do anything to establish this.

Trademark

A trade mark is a sign which can distinguish your goods and services from those of your competitors (you may refer to your trade mark as your “brand”). For example it can be words, logos or a combination of both. The only way to register your trade mark is to apply to The Intellectual Property Office. You may see other businesses that protect their Intellectual Property by having an ® next to it which means that the trademark has been registered.

Patents

A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission.

Designs

You can apply to register a design at the intellectual Property Office. A Registered Design is a legal right which protects the overall visual appearance of a product or a part of a product in the country or countries you register it.

This means that protection is given to the way a product looks. The appearance of your product may result from a combination of elements.

What if someone else is using my Intellectual Property?

If you have your Property registered then it should be fairly easy to establish who owns the intellectual property. If you have not registered the Property and for example you have copyright then you would require evidence that you own the intellectual property.

Once ownership is established you can issue an injunction against the persons/business using your intellectual property and the Injunction will stop from using your Intellectual Property. You also have a right to damages which would be any money that has been made as a result of using the Intellectual Property.

The unauthorised use of your IP is a criminal offence in some instances and can lead to prosecution under Section 92 of the Trade Mark Act in relation to Trade Mark infringement, and Sections 107A and 198 of the Copyright, Design, and Patent Act in relation to Copyright infringement.

For further information please contact Kate Baker on 01392 274006 or k.baker@morganandpope.co.uk

Often electricity bills, bank accounts, photographs, and even some life assurance policies are managed online so when you die no-one can access these and many may be deleted automatically after 9-12 months of non-use. Your loved ones may then lose vital information.

Online assets are non-transferable and impersonating someone else is most likely be a breach of terms and conditions so it is not advisable to make a list of your online passwords for someone else to use unless it is your nominated executor.

So, how should you deal with this? In the same way as any other asset include it in your Will. You can even state a ‘digital executor’ and provide all account details and passwords to enable access to online information in a separate document.

Amending or creating a will to include the provision of digital information can avoid any confusion.

For more information please contact our Wills department either on 01392 274006 or by e-mail admin@morganandpope.co.uk.

Author – Kate Baker

These valuable hours wasted means a loss in business productivity which can have serious adverse effects on the company’s cash-flow and overall profitability.

Businesses can keep on top of their unpaid invoices by following a simple approach:

1. Ensure that you know your customer and their business and therefore the likelihood of getting paid
2. Make sure payment terms are clearly visible on your invoices
3. Have a good diary system which tracks unpaid invoices and ensure that unpaid invoices are chased as soon as they become overdue.

Businesses can reduce wasted hours chasing invoices by using an experienced debt recovery team. Here at Morgan & Pope we can take that stress away from your business and recover your debts – leaving you to concentrate on the business.

For more details on how we can help please contact Kate Baker on 01392 274006 or by email k.baker@morganandpope.co.uk

Author – Kate Baker

You must have the compromise agreement explained by an independent solicitor before the agreement becomes binding, in which case Morgan & Pope Solicitors would be delighted to assist.

The solicitor giving the advice must also sign the agreement and certify that the appropriate advice has been given.

We can represent you in negotiations with your employer about the terms of the compromise agreement, including the financial compensation, ensuring that you defend your rights through what can be a highly complex process.

We can also advise you on the specific terms of the compromise agreement, ensuring that you understand the limits that it will be likely to impose on any future employment tribunal claims you might make. We have an excellent track record of negotiating successful outcomes for our employee clients with compromise agreements.

In most cases where we assist with compromise agreements, the employer’s contributions covers all our fees so our client doesn’t have to pay anything. We will make out an invoice in your name but this will be payable by your employers as part of the settlement, so we will send this directly to them.

If you would like to have an informal, no-obligations discussion of your circumstances, or to arrange a meeting/telephone call, then please call us on 01392 274006 to speak with either Terry Chetwood or Kate Baker or send an e-mail to t.chetwood@morganandpope.co.uk or k.baker@morganandpope.co.uk.

What was termed the “Stamp Duty Holiday” in last years’ budget is due to come to an end on 24th March 2012.

Under the scheme, FTBs are able to claim relief from paying any Stamp Duty at all when they purchase their first property with a value of below £250,000.

With average house prices in the South West reaching £223,300 last quarter (source Land Registry via Exeter City Council http://www.exeter.gov.uk/index.aspx?articleid=1001), this creates the potential for FTBs to save and average of £2,233.

Surely during a time of economic uncertainty and stretched budgets, this makes the Stamp Duty Holiday a not to be missed opportunity?

However, with a little over 4 weeks left before the Stamp Duty Holiday comes to an end, is it too late to take advantage of this fantastic opportunity to put some extra money back into your pocket?

The answer is NO!

So long as you are able to locate a property within the next week and you are able to secure a mortgage offer soon after (if applicable) there is no reason (provided the seller is willing to co-operate) you can’t walk away with the keys to your new home on 23rd March or earlier (if at all possible).

Here at Morgan & Pope Solicitors, we are perfectly placed to enable you to achieve your dream of owning your home and helping you to save money at the same time.

Your case will be assigned to one of our dedicated First Time Buyer Lawyers, who will prioritise all cases that have the chance of achieving the 24th March deadline so as to give you the best chance of saving thousands of pounds.

So, clear your diary and make your local Estate Agent your first port of call on Saturday morning (or earlier of possible) to see if you can find your perfect home.

Then, immediately send an e-mail to our dedicated FTB e-mail address (info@morganandpope.co.uk) or telephone us first thing on Monday morning (01392 274006) so that we can get the ball rolling and turn your dream of saving money into a reality!

Author – Charlotte McGregor