The Housing Act 2004 introduced significant reforms, geared towards protecting deposits for tenants. Any deposit taken must be protected with one of the tenancy deposit schemes set up by the Act and dispute settlement is now available. In plain English? Landlords that accept a deposit from a tenant must contact a recognised provider of tenancy deposit schemes as soon as possible to arrange to pay the deposit into such a scheme.

It all sounds pretty simple… so what has now changed? A series of decisions, including two in the Court of Appeal, revealed shortcomings in the legislation.

In Vision Enterprises (t/a Universal Estates) v Tiensia [2010] the landlord failed to comply with the initial requirements but later returned the deposit. The court decided that compliance before the tenant started proceedings or by the date of the hearing equated to a defence, meaning that the penalties didn’t apply.

In Hashemi v Gladehurst Properties Ltd [2011] the court held that the penalties no longer applied once the tenancy has come to and end.

As a result of these cases, and others, the provisions have been amended.

What do you need to know:

• Section 213, which has been amended, sets out the initial requirements for a landlord when it receives a deposit. One of these is to give the tenant information about the AST scheme. Previously this had to be done within 14 days. This has been extended to 30 days.

• Section 214 relates to proceedings surrounding tenancy deposits. Under the amendments the tenant may make an application to the county court if the provisions set out above, in section 213, have not been complied with. Under a new part to this, this now applies when a tenancy has ended as well.

• It remains the case that the court must order the return of the deposit, if it agrees that there is a case to answer. However, the changes now allow the court to order the landlord to pay a penalty, in addition to the deposit, of not less than the deposit and not more than three times the deposit. As a result the court can now draw a distinction between a case where the landlord genuinely made a mistake and where the failure to comply was deliberate.

• Previously a landlord was not allowed to serve a section 21 notice, seeking possession of the property, if a claim was in process. This has now been removed.

These changes may seem to make things fairer for both landlords and tenants. However, things are far from clear and we may see, over time, things changing again. One thing does seem clear, as things stand, for landlords that fail to comply, the consequences could prove expensive.

As a result firms who hold the Law Society’s ‘Conveyancing Quality Standard’ (CQs) accreditation will  be able to act for both buyer and the bank. 

This means these firms will act for both buyer and HSBC in the same way they did prior to the changes earlier this year. Firms who do not however hold this accreditation are not permitted to act for HSBC and their clients will be obliged to suffer the delays which separate representation has been shown to cause, and the additional costs if they use them. This will apply to new cases from at least 1 August 2012. 

Wards hold the Law Society’s CQS accreditation and Lexcel its practice standards accreditation.  As a member of the CQS,  we meet the high standards the Law Society sets to ensure that we give clients a professional and quality conveyancing service.

For more information: E susan.ellis@wards.uk.com

When you buy your property we, as your solicitors, carry out a ‘local search’. This provides information from the local authority, specifically relating to whether the property is in a Conservation Area or is affected by a Tree Preservation Order (TPO).

A number of areas local to Wards Solicitors’ offices are designated as Conservation Areas, for example the Clifton and Redland areas in Bristol. If you are thinking of pruning a tree in a Conservation Area, then you must give 6 weeks notice to the local authority so they can then decide as to whether or not to make the tree the subject of a TPO.

It is an offence to top, lop, uproot, wilfully damage or destroy any tree in a Conservation Area without having first given notice to the local authority, or any tree already subject to a TPO. There are limited exceptions, such as where a tree is dead or dying, dangerous or a threat to life or property. The Magistrates Court has power to impose fines of up to £20,000 per tree, but if the proceedings are brought in the Crown Court, there is no limit to the fine which can be imposed. Felled trees must be replaced.

A property owner is responsible for any tree on their land, in the same way that they are for anything else on their land. A prudent property owner will take reasonable action to ensure that no tree on their land will cause harm or damage to any neighbouring land or buildings. A wise property owner will also avoid things which may cause friction with neighbours. Apart from the many other considerations, legal action, whatever the form, can be extremely expensive.

If your tree has branches or roots which encroach on your neighbours property, your neighbour is quite within their rights to cut back the encroachments, from their side, without giving you any notice or warning, although they are obliged to return the cut offs to you. This is a right that exists under ‘common law’ unless precluded by something else, such as the provisions mentioned above in respect of Conservation Areas or by TPO. However your neighbour in exercising this right is also responsible for the action they take and any damage caused, for example if their action were to affect the tree’s stability.

Furthermore, if the roots from your tree encroach on your neighbours land and cause damage to their property, you can be potentially liable for this. Common problems are damage to drains, or subsidence in buildings. You can be liable for the damage caused even if you were not aware of it, if this was reasonably foreseeable, and you could have taken reasonable steps to prevent this. The responsibility is on the owner if they know or ought reasonably to know of the damage, and have a reasonable opportunity to deal with the issue. Actions could be brought for the costs of repairing damage, or in urgent cases your neighbour could seek an injunction.

If you have a number of tall trees forming a hedge, and these are evergreen, over 2 metres high and detract from a neighbours reasonable enjoyment of their house or garden, your neighbour can complain to the Council under the Anti Social Behaviour Act 2003. The Council can make an Order to reduce the height or otherwise impose requirements for its management. If any tree is posing an imminent danger, the Council also has power to make an immediate Order against the property owner requiring work to be done to a tree

Property owners should regularly survey trees with the benefit of professional advice, to check whether they are causing damage, or likely to cause damage to surrounding property. Tree owners should be prepared to manage trees properly to reduce the risk of damage or harm, and any possibility of liability. The costs of proper management are monies well spent compared with the vast potential for liability if ever court action were taken.

For more information contact:
Conveyancing – Susan Ellis Disputes – James Taylor

Currently, if you are buying a residential property and appoint a conveyancer to deal with this for you, and you need a mortgage, the mortgage lender will appoint the same conveyancer to act for them. The conveyancer owes separate duties to you and the lender, and so wears 2 hats, so to speak, in the process. This has been the norm now for many years, and works well. The advantages are obvious in that one conveyancer can manage the requirements of both buyer and lender to enable the process to proceed as smoothly as possible. Fees are kept down as the conveyancer’s fee includes acting for a lender.

HSBC, earlier this year, without any warning, changed their approach. They decided to narrow their conveyancing panel to only 39 firms for the whole of  England. A borrower can choose to use a panel solicitor to act for them and the bank. However their choice is then clearly very restricted.

If you wish now to use your usual conveyancer, or a firm local to you, then the chances are there will have to be 2 different firms involved. One to act for you and the other to act for HSBC to satisfy their conveyancer’s requirements, which have  proved to date to be onerous. The biggest impact on the purchaser client is the delay that this causes. In particular, even when the HSBC panel firm has finally indicated it is happy with the paperwork received and given authorisation for contracts to be exchanged, 11 working days notice is still required before funds can be released. This adds weeks to a standard conveyancing transaction, and  causes disruption to buyers and to chains in which they may be in..

In addition the client has additional costs, and to date the evidence is that applicants for HSBC mortgages are not being informed of HSBC’s special panel requirements, nor of the additional fees.  Even their own staff, when applying for mortgages, have been left in the dark. The HSBC panel firm charges £192 (including VAT), which is payable by the borrower. This is an additional cost. In addition, because of the extra work involved in satisfying the HSBC conveyance many firms are currently declining to act, on the basis that the requirements are excessive and make their quoted fees uneconomic, or are charging extra fees to cover this.

There have been numerous reports of delays, and poor service from the HSBC panel members, since the changes to the panel requirements, with complaints being made to HSBC, MPs and the Office of Fair Trading. ‘Which’ have joined in the fray, and with articles in the papers and coverage on’ Money Box’ the measures continue to court controversy.

Whilst HSBC are totally free to choose their panel, the way they have done this is difficult to justify. HSBC have appointed Countrywide as the mangers of the panel. They, as licensed conveyancers, are also appointed to the panel. Apparently neither the bank nor Countrywide sees any conflict of interest here. Applications have to be made to Countrywide for membership, and there is no transparency or appeal process. Members of the panel are supposed to be members of the Law Society’s Conveyancing Quality Scheme, of which there are now some 1300 members. To date we have found that where clients have had an HSBC mortgage the panel member appointed to act for HSBC has always been Countrywide.

Wards Solicitors has the Law Society CQS accreditation and, indeed, are long term HSBC account holders. We also have a network of branches throughout Bristol, South Gloucestershire and North Somerset, and offer conveyancing services throughout this  network.

As of today’s budget changes,  Inheritance Tax matters have largely stayed the same:

• There are no changes to the current Inheritance Tax threshold, known as the ‘nil rate band’ (NRB). The NRB is currently £325,000 and is now set to remain at this figure until 2014-15 tax year.
• Inheritance tax is payable at 40% on all assets above the NRB. Spouses and civil partners still benefit from the transferable NRB which means that on the death of the first spouse/partner the survivor can benefit from an increased NRB of up to £650,000.

However, there has been one change, with the introduction of a new lower rate of Inheritance Tax comes into effect on 6th April 2012; where a person leaves 10% of their net estate to charity they will benefit from a reduced tax rate of 36% on all assets that exceed the NRB. This is great news for charities and is heralded as a much needed boost to charitable giving, which has seen a huge decline in the recent economic downturn.

We wrote in more detail about this change in Charitable Giving on Death and, most recently, Legacy Changes in April’s Budget. For more information please contact Jenny Pierce.

The new rules on charitable legacies mean you could reduce the Inheritance Tax bill on your estate by 10% from 6^th April 2012.  However, it is most unlikely that your existing Will is structured to make the most of this change.  If your Will leaves assets to charity or you wish to leave part of your estate to charity now would be a good time to review the Will.  HM Revenue & Customs recognise that the take up of this relief depends on the extent to which it is promoted by both professional advisers and charities.

Wards’ Wills and Probate Team are geared up to draft Wills which take advantage of the new rules.  Many of the Team are members of the Society for Trust and Estate Practitioners (STEP).  STEP had a consultation and have published a draft clause for Wills in response to the legislation.

The individual exemption for Inheritance Tax will be frozen at £325,000 until April 2015.  Assets in a deceased person’s estate in excess of this level are taxable at 40%.  Come April 2015 the individual exemption, known as the nil rate band, will rise in line with the Consumer Prices Index.

Inheritance Tax planning opportunities still exist when making or reviewing Wills.  If there are agricultural business assets within your estate or if you are a widow or a widower and have re-married then valuable exemptions may apply.

If you would like to talk to a member of Wards’ Team regarding your Will and Inheritance Tax planning please contact Jenny Pierce on 0117 943 4814 or by email to jenny.pierce@wards.uk.com in the first instance.  Wards offer a free Will review service and there is no charge for any initial appointment.

We’re delighted to be supporting, along with the Evening Post, the Festival of Rotary’s Free Family Funday.  Bringing together  67 Rotary Clubs, the festival will be held on College Green, Bristol, on 22nd April 2012.

At the festival there will be all sorts of fun and exciting activities and games going on for kids and adults. If you fancy peddling and dancing for polio eradication or finding out about Shelterboxes and how they save lives in disaster zones. Or if you just want to play some games and get your face painted. It’s all there and it’s free.

This is just a fraction of what’s on offer at the Festival of Rotary. At the Festival of Rotary they are showcasing the work they do for communities near and far but they also want to have fun so there’s plenty to keep young and old occupied, entertained and surprised. Come along and join in:

Pedal and Dance for Polio Eradication
Raising money for the ongoing fight against Polio we are peddling and dancing at the Festival of Rotary. Come and join us…

Ecological Fuel Project – Briquette Making in Africa
See how this simple machine provides vital fuel for people in Africa.

Shelterboxes
Shelterboxes are saving lives every year in disaster zones around the world. Come and see one for yourself and imagine what it’s like to live in one….

Life Education Bus
Visit Gerald the Giraffe and his friends on board the life bus.

Rotakids
Hundreds of kids in our region are given great opportunities by Rotakids. Come and see how.

For more information click here.

Jessica Williams is not only a fund raising committee member for Survive but also runs drop-in surgeries, once a month, at two of the refuges run by Survive.

In excess of £500 was raised for the charity which will go to fund the above work.

The success of the event was a real team effort. Amy Jones (from Wards Solicitors) was the bingo caller and did a fantastic job – she knew all the bingo calls… two fat ladies; legal eleven!  Albion Chambers kindly donated two bottles of champagne as prizes.

Anna Smith the Chief Executive from Survive attended the evening and gave a small talk about the work they do and the staff at the Jolly Sailor Wetherspoons Pub, were invaluable, whether with their collecting buckets or providing superb food.

The room was packed with over 70 people joining in and making it a ‘full house’.