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Month: July 2023

Key things to consider when selling your house

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Selling a house can be an overwhelming process, requiring careful planning and consideration to ensure a smooth and legally compliant transaction. There are specific laws and regulations that homeowners must adhere to when selling their property.

Jane Hannaway, Partner and Head of Residential Property, outlines the key things to consider when selling your house, to help you navigate through the process successfully.

Prepare your property for viewings
First impressions matter when selling your house. Make sure your property is well-maintained, tidy, and presentable for viewings. Consider de-cluttering and staging your home to showcase its best features. Being flexible with viewing arrangements to accommodate potential buyers’ schedules can increase the likelihood of attracting serious buyers.

Obtain an Energy Performance Certificate (EPC)
Before you put your property on the market, in the majority of cases, you must have a valid Energy Performance Certificate (EPC). This certificate rates your property’s energy efficiency on a scale from A to G, with A being the most efficient. A certificate is valid for 10 years and you can check if yours is still valid via the EPC register. If you need a new EPC you can either ask your estate agent to arrange an EPC or arrange one directly with a provider. It is a legal requirement to have a valid EPC when selling a property and failing to provide one can lead to delays in the selling process. 

Choose an estate agent
It is often useful to get at least two or three estate agents to value your home. Pricing your property appropriately is crucial to attract potential buyers and increases the chances of a successful sale. Personal recommendations are often valuable as to which estate agents to invite to potentially sell your home. Ask questions as to market trends and recent sales in your area – you are about to ask them to help you with the sale of a valuable asset, so it is important to ensure that you feel confident and comfortable with the agency that you instruct.

Prepare the necessary documentation
Gathering all relevant documents related to your property, including title deeds, planning permission documents, building regulations certificates, service records and guarantees for any work done. Having these documents readily available will assist with completing the paperwork for the conveyancing process.

Appoint a solicitor as early as possible
Navigating the legal aspects of selling a property can feel daunting. We would highly recommend engaging a property solicitor as soon as possible once you have decided to market the property. You will then have time to complete the necessary paperwork so that your solicitor can ensure that they then have everything they need to prepare and issue the contract documentation as soon as you do accept an offer. Issuing a comprehensive contract pack in the first instance often leads to fewer enquiries and a faster transaction overall.

How Blaser Mills Law can help
At Blaser Mills Law we have wide experience in all aspects of residential property work. We understand the importance of working proactively to complete transactions as quickly as possible, taking away the stress from what is supposed to be an exciting time in your life. We pride ourselves on our service levels and the communication that we have with our clients, and agents, so that the sale can be as smooth as possible.

To speak to one of our expert property solicitors, contact Jane Hannaway on jeh@blasermills.co.uk.

Mediation: A powerful tool in Dispute Resolution and Litigation

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Mediation was first introduced to the United Kingdom in the early 1990s by a small number of construction solicitors who had encountered it in the USA. It was rapidly adopted by the Technology & Construction Court and also by the Family Court. Over the last 20 years it has become a mainstay of litigation in England and Wales and is central to litigation in the construction industry.

The Pre-Action Protocol issued by the Technology & Construction Court is the only protocol which stipulates that the parties must meet further to the exchange of pre-action correspondence to seek to resolve their differences. Whilst the protocol does not specify use of mediation, most solicitors, including this practice, always seek to make the meeting a mediation.

There are a number of mainstream mediation providers of which CEDR is the best known.

It is our experience that many cases settle through mediation and if not at the mediation itself then often shortly afterwards.

There is no right or wrong time to mediate; if there is willingness to meet and agree then a mediation can take place as early as prior to commencement of proceedings and even as late as during the course of a trial.

Mediations are often binary between two litigants to a dispute but can involve multi-party mediation which is particularly successful where there are a number of parties to a claim. Mediation itself is often likened to ‘shuttle diplomacy’ where the two parties meet with the mediator at the beginning of the day and the mediator then ‘shuttles’ backwards and forwards between the parties trying to reach a compromise.

In addition to mediation there are a number of other forms of ADR including Early Neutral Evaluation where senior representatives of the two parties in dispute meet to review the claim between them, often with the assistance of a third party.

Similarly, the existence of Dispute Review Boards has become increasingly common in large contracts where the contract provides the identity of one or more representatives of each party and one or more external advisors who will form a dispute review board to make recommendations or even a finding.

Arbitration is still considered to be a form of ADR, although it is now much more akin to High Court litigation, the difference being that the court will adopt a rigid timetable whereas arbitration can be much more flexible. Arbitration also differs from the court in that there may be one arbitrator appointed by the parties or the parties may each nominate an arbitrator and the two arbitrators each nominate a third arbitrator to form a three person tribunal.

For further information or advice in regards to mediation please contact Lewis Cohen on 07956 964466 or email lnc@blasermills.co.uk.

This article is for general information only and does not constitute legal or professional advice.

Blaser Mills Law ranks in the Chambers High Net Worth Guide 2023

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The Chambers High Net Worth (HNW) Guide has announced the results of its latest rankings for 2023. The guide ranks solicitors in specialist areas of law within the High Net Worth category.

Recognised as the most commonly used directory in the legal sector, the Chambers HNW Guide has moved up our Wills, Trust and Probate team to Band 2, having ranked previously for seven consecutive years, and sees the team as a ‘Leading Firm’ in Private Wealth Law , with feedback highlighting that we are a “experts best in the field”.

The guide includes client testimonials for the team:

“They are just so professional, excellent communicators, and I definitely recommend them as legal counsel. They are always quick to respond and instil great confidence in clients.”

“Both the support and guidance I was given by the probate and conveyancing teams has been outstanding. The expertise and professionalism has been excellent.”

Jonathan Gallop, Partner and Head of Wills, Trusts and Probate, has ranked for the second consecutive year as a Band 3 Individual in Private Wealth Law. In the guide Jonathan’s private wealth law clients left him glowing feedback: “We felt as though we were in safe hands. Jonathan and his team were very responsive.”

Senior Associate, Sara Rendell, has been ranked as an ‘Associate to Watch’ in Private Wealth Law for the third year running. The guide describes Sara as a “clear, concise and a balanced communicator. She is an expert in the field and is always willing to listen.”

Jonathan commented: “I am delighted that our team has been recognised as leaders in its field by Chambers, assuring our clients that we provide an excellent level of service and specialist legal advice to High Net Worth individuals.”

For any enquiries related to our Wills, Trusts and Probate team contact us on 020 3814 2020 or email enquiries@blasermills.co.uk.

Part 36 offers – Tactical weaponry or tool for settlement?

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Part 36 of the Civil Procedure Rules (“CPR”) sets out a self-contained procedural ‘code’ for offers made in accordance with its provisions, so called ‘Part 36 offers’.

Part 36 offers can be a useful tactical tool in a Claimant’s armory. If a Defendant fails to ‘beat’ a Part 36 offer at trial, automatic cost consequences flow, which entitle a Claimant to an award of costs, far in excess of any cost order that would be made on a standard basis. The consequences of a Part 36 offer begin from the relevant period, which must be at least 21 days from the date of the Part 36 offer.

CPR 36.17(3) provides that a Court must, unless it considers it unjust to do so, order that the Claimant is entitled to costs on the following basis:-

  • interest on the whole or part of any sum of money awarded, at a rate not exceeding 10% above base rate for the period starting with the date on which the relevant period expired;
  • costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
  • interest on those costs at a rate not exceeding 10% above base rate; and
  • an additional amount, which shall not exceed £75,000, calculated either as (i) for awards of up to £500,000, 10% of the amount awarded (ii) for awards in excess of £500,000, 10% of the first £500,000 and 5% of any amount above that figure, subject to the limit of £75,000.

In considering whether it would be ‘unjust’ to make such an order, the Court must take into account all of the circumstances of the case including:-

  • the terms of any Part 36 offer;
  • the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
  • the information available to the parties at the time when the Part 36 offer was made;
  • the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
  • whether the offer was a genuine attempt to settle the proceedings.

The recent case of Yieldpoint Stable Value Fund, LP v Kimura Commodity Trade Finance Fund Ltd [2023] EWHC 1512 (Comm), has put these considerations in the spotlight.

The Claimant sought payment of a debt in the sum of $5,000,000 plus interest. The Claimant made a Part 36 offer to settle the claim for $4,950,000 including interest which was equivalent to 99% of the principle debt or 96% of the value of the total claim including interest.

The Claimant was successful at trial and the Defendant was ordered to pay $5,000,000 plus interest and costs. Whilst the Defendant failed to beat the Claimant’s Part 36 offer, Stephen Housman KC sitting as High Court Judge held that it would be unjust for the Claimant to benefit from the enhancements under CPR 36.17 on the basis that the Claimant’s Part 36 offer was not a genuine attempt to settle, particularly in the context of it being an ‘all or nothing’ case. He found that “an offer which is a cynical attempt to manipulate the Part 36 regime and apply pressure on an adversary is unlikely to be effective for such purposes”.

Comment

There will always be a tactical element to Part 36 offers. However, in recent cases the Court does appear to be more critical of parties taking tactical steps aimed at achieving greater cost recovery, instead of a genuine attempt at settlement. Yieldpoint provides a salient reminder that Part 36 is intended to reward constructive offers of settlement.

The Judge was clear that his decision should not dissuade parties from using the Part 36 mechanism but rather it should be “an encouragement to make offers at a level not so perilously close to the full value of the claim in a case of such adversarial intensity”. 

The legacy puzzle: Aretha Franklin and the implications of not having a Will

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In August 2018, music fans around the world mourned the loss of an iconic figure, Aretha Franklin, often referred to as the “Queen of Soul.” However, amidst the heartfelt tributes and celebration of her remarkable career, a significant aspect of her legacy came into focus. A four-year long dispute over two handwritten Wills, found in her couch, that have only just been legally validated. Aretha Franklin’s failure to establish a comprehensive estate plan serves as a reminder of the importance of having a Will in place to protect future generations.

Minesh Thakrar, Partner in the Wills, Trusts and Probate team at Blaser Mills Law, highlights on the consequences of not having a Will in place.

Intestacy laws in the UK
When an individual dies without a Will in the UK, they are said to have died intestate. In such cases, the intestacy laws of the country determine the distribution of the deceased’s assets. These laws provide a prescribed order of inheritance, typically prioritising spouses, civil partners, and close relatives.

Distribution of assets
In the absence of a Will, the distribution of assets can follow a predetermined hierarchy, which may not necessarily align with the deceased’s wishes. Under UK intestacy rules, if a person is survived by a spouse or civil partner but no children, the entire estate generally goes to the spouse or civil partner. However, if the deceased has children, the spouse or civil partner is entitled to a statutory legacy, plus a portion of the remaining estate. The children then receive the remaining balance.

Legal challenges and delays
The absence of a Will can often lead to legal battles and delays in distributing the estate.  Intestate situations may also trigger disputes and disagreements among family members, resulting in prolonged legal proceedings and potential strain on relationships. These challenges can significantly impede the efficient and timely resolution of the estate.

Inadequate provision for loved ones
Not having a Will in place can result in unintended consequences, including inadequate provision for loved ones. The testator  may have had specific intentions regarding the distribution of their assets, including beneficiaries, charitable donations, or other considerations. Without a Will, their wishes are  left unrecorded, and the distribution of their estate follow the standard intestacy laws. This outcome might not necessarily align with their true intentions or desires.

The importance of estate planning
Aretha Franklin’s case highlights the importance of proactive estate planning. Regardless of one’s wealth or status, having a Will in place allows individuals to ensure their assets are distributed according to their specific wishes. Estate planning enables a more orderly and efficient transfer of assets, minimising the chances of legal disputes, family conflicts, and delays in the probate process.

Working with a professional
To avoid the challenges faced by Aretha Franklin’s estate, consulting with a solicitors or estate planning specialists, is crucial. These professionals possess the necessary expertise to guide individuals through the complexities of Wills, trusts, and other legal requirements. By seeking professional assistance, individuals can ensure that their intentions are accurately documented and legally binding, reducing the risk of ambiguity or misinterpretation.

Get in touch with Blaser Mills Law
At Blaser Mills Law we work collaboratively with our clients to create a plan for the future that is tailored to their individual requirements. We know that making a Will is an important moment, so we’ll ensure you clearly understand the process and the implications of any decisions you make. If you’re ready to start considering your Will, you can contact Minesh by calling on 01494 781366 or emailing mit@blasermills.co.uk.

How to deal with insolvency in divorce proceedings

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In the current economic environment, more individuals are likely to find that they are unable to pay their debts or will need to take action to manage their debts.

When faced with financial difficulties where debts have become too difficult to service, individual insolvency proceedings might be unavoidable, and an individual might consider entering into an individual voluntary arrangement (IVA) or might be made bankrupt.

Either way, this could have a significant bearing on a financial settlement if that individual is divorcing or separating from another and could make a divorce or separation more stressful and complicated than it would otherwise have been. In some cases, a financial settlement which has already been agreed, might be affected if one of the parties subsequently becomes bankrupt.

A bankrupt’s ability to raise a mortgage to secure a home will be affected and there is inevitably a conflict between the trustees in bankruptcy and the rights of the bankrupt’s family. The trustee in bankruptcy owes duties to the bankruptcy creditors and is under a duty to realise the assets in the bankrupt’s estate as quickly and effectively as possible.  This could be to the detriment of the bankrupt’s spouse / partner and their children.

In financial remedy proceedings, the court has powers to redistribute assets and income between spouses following the breakdown of the relationship in order to ensure that a fair settlement is reached. When trustees in bankruptcy are involved, this inevitably becomes more complicated.

Depending on whose name the family home is in, issues regarding the occupation of the family home and protecting the home from the trustees in bankruptcy are likely to arise.

Timing is often critical and if there is a possibility of insolvency proceedings, immediate advice should be sought so that both parties have a full understanding of the impact of insolvency proceedings on a financial settlement. Likewise, if the finances have recently been agreed and a party subsequently becomes insolvent, advice should be sought.

A solicitor and licensed insolvency practitioner at Blaser Mills Law commented: “The cost of living crisis and the increase in interest rates is likely to put pressure on the finances of a large number of individuals.  Financial pressures are inevitably exacerbated where a couple divorce or separate as it usually leads to additional costs alongside a dislocation in the family and sometimes a reduction in income.  Where individuals are considering taking action to end a relationship, and one of the parties is facing possible insolvency, it is important to take early advice to secure assets and minimise the impact on the insolvent individual’s partner and their children.

Get in touch
Whether you require assistance during a divorce or separation or need to escalate your matter in relation to insolvency, please get in touch with Lucinda Holliday on ljmh@blasermills.co.uk.