Hillyer McKeown Blog

Chancel ‘Cheque’

Chancel Repair Liability dates back to Medieval Times. It derives from the privatisation of Church land following the Reformation. Historically, the obligation to repair the church had fallen on the rector of the parish. After the Reformation, much Church land was passed to lay landowners (who owned what used to be very large estates of land) but the liability of upkeep remained. Over the years, these Estates have been slowly broken down into many thousands of privately owned properties; the potential for Chancel Repair Liabilities however remained attached to the land and was passed down to successive owners of the land or buildings.

Such was the case in Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank where Mr Wallbank had inherited a farmhouse from his father. It had been apparent from the title deeds at the outset, and before the Defendant had signed the Transfer that the land was subject to a legal obligation to keep the chancel of the parish church in repair. At the time however the Defendant had merely taken this to be a technicality and did not appreciate the full extent of the obligation attached to the property.
In 1994, the Parochial Church Council (PCC) served a notice on the Wallbanks claiming £92,260.84 for Chancel repairs. This was not paid and Court proceedings were subsequently issued against the Wallbanks. The Wallbanks chose to defend the claim on the basis that it was unlawful under the Human Rights ct 1998, as an act by a “Public Authority” which infringed the couple’s right to peaceful enjoyment of their possessions. They ultimately lost their case in the House of Lords (now the supreme Court) and were ordered to pay damages in excess of £200,000 for repairs to the 13th Century Church (the cost having increased significantly in the 9 years it took for the matter to get to the House of Lords) as well as the other party’s costs which were in the region of £250,000.

Having lost their case, the farmhouse was sold at auction for £850,000 (only after the Wallbanks had made a further payment of £37,000 to Church authorities to remove the legal obligation to maintain the church from future owners – had they not done so, the property would have been virtually unsaleable). The potential liabilities stemming from former rectorial glebe land cannot be underestimated and your legal adviser should advise you of the same, where appropriate during any relevant transaction.

In 2003, the Government changed the law so that after 13th October 2013, where an interest has not been noted at the Land Registry any purchaser of land to which liability previously attached will not be subject to it. In the intervening period landowners are warned that there may be an increase in the number of cases of this nature brought against them as the Church carries out further investigations as to any potential liabilities for properties within their parishes.

CIVIL PARTNERSHIP & REVOCATION

Probate law and the 21st century met recently when the Court had an opportunity to consider the revocation of a prior Will by the formation of a Civil Partnership.

The Wills Act of 1873 has been amended to contain provisions concerning the revocation of a prior Will by the formation of a civil partnership. The provisions parallel those relating to marriage.

The deceased who owned substantial assets, made a Will in 2002 leaving his Estate to friends, family and three Australian charities. However by April/May 2008 he had formed a close relationship with a much younger man (the Defendant) and that person alleged that the deceased had made a Will in August 2008. The family members claimed the Will was a forgery.

However the Defendant and the deceased formed a Civil Partnership in October 2008. In those circumstances the disputed Will would have been revoked by the Civil Partnership in any event unless it complied with the relevant section of the Wills Act as amended. The provisions prevent the revocation if it appears “from a Will” that at the time the Will was made the Testator was expecting to form a civil partnership with a particular person and that he the Testator intended that the Will should not be revoked by that civil partnership.

The Judge found that the Will in question did not comply with those requirements. The Will did contain a clause that said “…this, my last Will and Testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption”. The Judge found that this did not comply with the requirement as the Will did not refer to an expectation to form a civil partnership with a particular person. The Will contained a mere general statement and therefore it was not as sufficient. Even though the Will went on to leave all the Estate to the Defendant the Judge found that there was nothing in the Will to indicate that there was any connection between the civil partnership and the leaving of all the assets to the Defendant.

This judgment emphasises the need for practitioners and Testators to remember that entering into a marriage/civil partnership will revoke a prior Will unless there is a suitable clause or the Will is confirmed by a subsequent Codicil. If the relevant clause is poorly drafted it can leave an unhappy Civil Partner and/or a claim against the practitioner who drafted the Will.

Simon Cowell taken to Employment Tribunal

A snubbed contestant on Britain’s Got Talent is taking the programme and Simon Cowell to the Employment Tribunal under the Disability Discrimination Act 1995 for failing to take into account her medical condition, which she says affected her performance on the show.

Things did not turn out as contestant Emma Czikai had hoped as she was no longer allowed to continue with her audition.

Ms Czikai stated that her medical condition, which causes head and shoulder pain and which can mean that sufferers cannot hear their own singing voice in noisy environments, together with the microphone she was provided with was not the one that she was used to and the backing track being too loud, were the reasons for her not being put through to the next round.

When she stated this to Simon Cowell on the show his response was “Emma, Emma, reality check here, it’s not the music, it’s not the microphone, it’s you”.

Ms Czikai’s claim rests on the claim that the TV show can be regarded as her employer as “it involved a knockout process culminating in short-term contracts of employment for those successful enough to participate in a road show”.

Failure to Comply with Service Charge Consultation Requirements
In a recent case a landlord was given a salutary and financially painful reminder of the need to comply fully with the detailed statutory service charge consultation requirements. The failure in this case resulted in a drastic reduction in the amount the landlord could recover from the tenants.
The landlord owned a block of shops and flats and gave notice to long leaseholders of the flats that it intended to carry out major works amounting to £270,000. The landlord felt it had complied with the statutory consultation requirements, it had not. The leasehold valuation tribunal refused to grant dispensation from the consequences of that failure, which meant that the liability of the five tenants was limited to £250.00 each.
On appeal the Lands Chamber agreed with the LVT that it could not take into account the disproportionate financial consequences; the statutory consequences of a failure to comply was an intrinsic part of the legislation.
Landlords particularly, local authorities and commercial landlords, must take special heed in the light of the Tribunal’s comments that a more rigorous approach may be applied to such landlords. Indeed the Tribunal suggested that landlords “would be well advised” to place close regard to the precedents produced by the Leaseholds Advisory Service rather than attempt to produce their own various versions of the required notices.

The Court of Appeal has given Judgment in a case involving a Trade Association’s website.  The site listed installers but without distinguishing full members from affiliate members.  Full members were vetted by the Association and were covered by a bond and warranty scheme but affiliate members were not.  The case highlights the need to give careful consideration to disclaimers on any website and the need for consumers to check all information obtained from the internet.

The Claimant had sought a contractor to build a swimming pool and contacted a number of members named in the site.  The site did contain a representation confirming that full members were vetted and that they had a bond and warranty scheme that related to full members.

Unfortunately the contractor selected by the Claimant was not a full member and became insolvent.  The Claimant was left having to find another contractor to complete the works at an additional cost of £44,000.00 as the contractor was not covered by the scheme.  The Claimant told the contractor that he knew he was a member of the Association but he did not make any enquiries into the details of the scheme.

The website also noted that the Association supplied an information pack with members’ lists, giving details of suitably qualified and approved installers in a customer’s area.  The pack also contained a checklist of questions that a customer should ask any potential installer.

This statement was regarded as significant by the Court of Appeal as was the fact that the Claimant did not seek an information pack or members list.

In finding that the website did not owe the Claimant any duty of care the Court felt that the website was to be seen as a first step in a process and that whilst an information pack was not an essential next step it was a step that was encouraged and it would be surprising to find any Claimant relying on information regarding a scheme without obtaining a copy of that scheme or further details.

This is a helpful decision for website owners but it is not without warning.  To some extent the Claimant was too honest in that he owned up to reading and ignoring the warnings on the site; not something every Claimant would do.

It must also be remembered that in 1971 Lord Denning punished a car park’s failure to alert drivers to a disclaimer regarding parking at the “owner’s risk” famously noting that the notice “would need to be printed in red ink with a red hand pointing to it, or something equally startling”.  That case was not overruled and therefore it is still open to customers to allege that any disclaimer was not sufficiently brought to their attention to be effective.

Whilst the case is helpful to website owners it is very much a situation to “watch this space” and it is likely that such cases will be very much considered on a case by case basis.

Equality Bill introduces protection against ‘dual discrimination’

The new Equality Bill, which is now making its way through parliament, has been amended to provide protection against dual discrimination.

Ministers believe the new protection is necessary because at present, people can only bring individual claims for each form of discrimination such as age, race, disability etc. The Government says this can sometimes make it difficult to prove that they were discriminated against on that one individual area alone.

The dual approach will allow people to bring claims on the basis that they were discriminated against for a combination of reasons. Ministers give this example of how the kind of case the new approach might cover: “a black woman who is discriminated against because her employer has particular stereotyped attitudes towards black women – as opposed to black men or white women – could bring a single claim for combined race and sex discrimination.”

The Equality Bill will replace nine other pieces of legislation and approximately 100 measures relating to equality introduced over the last 40 years.

One of the key aims of the Bill is to narrow the pay gap between men and women. To this aim,
secrecy clauses in employment contracts will be banned so that employees can compare wages if they wish, enabling women to take action if they find they are being paid less than men for doing the same work.

Firms may also need to consider equality issues when tendering for contracts with public bodies. Organisations such as local authorities will be encouraged to use procurement as a way of promoting equality within private sector firms.

There will also be more protection for carers against discrimination. It is currently illegal to discriminate against someone because of their association with a person of another race, religion or sexual orientation. The Equality Bill will extend this protection so it relates to age, disability and sex or gender reassignment. It means, for example, that an employer could not refuse to promote someone just because they were the carer of an elderly relative.

Firms may wish to re-assess their equality policies in light of the new measures in the Bill. Please contact us on 01244 318131 if you would like more information.

Crane owners can not avoid responsibility for their negligence

The owners of a crane have been told they cannot pass on responsibility for their negligence to another company following an incident in which an operator was seriously injured.

The case centred on a dispute between the owners of the crane and a company which had hired it for use on a project at an electricity sub-station. The owners also supplied an experienced operator.

The contract contained clauses stating that the operator was to be regarded as working for the hirer while the work was being carried out. The hirer also had to indemnify the owner for any claims for damage or personal injury that might arise relating to the crane and the actions of the operator.

On the first day of the project the operator fell from the crane and was seriously injured. He made a claim against the owners for negligence and breach of statutory duty. The owners then began proceedings against the hirer based on the indemnity clauses.

However, the court ruled against the owners on the basis that the indemnity clauses only covered claims that might arise out of the operator’s actions. They did not cover claims that might arise out of the owner’s negligence in respect of the crane.

That decision has now been upheld by the Court of Appeal. In giving their ruling, the Appeal Court judges stressed that if a company wanted to limit its liability when entering into a contract then it must do so in clearly stated terms.

The crane owners had failed to do this because their indemnity clauses were wide and did not specifically cover their own negligent acts.

Please contact us if you would like more information about contract issues and professional negligence.

Landlord loses appeal over repossession of premises

A landlord has lost his appeal to repossess premises that he wanted to use to set up a business.

The court ruled that he had not shown sufficient intention to occupy the building for the purposes of the Landlord and Tenant Act 1954 (the Act).

The premises were occupied by a tenant who had been running a small news agency since 1991. When the tenant applied to renew the lease, the landlord objected on the grounds that he wanted to set up a news agency himself on the premises.

The landlord accepted that to satisfy the requirements of the Act, he would have to show that he genuinely intended to use the premises to run the business and that he was capable of putting that intention into effect. He gave an undertaking that he would not use the premises for any purpose other than running a news agency for two years.

However, the judge ruled against the landlord because he thought his intention was only temporary and it was highly likely that he would sell the premises or grant a lease at the end of the two years.

The Court of Appeal has now upheld that decision. It said that if the landlord succeeded in meeting the requirements of the Act then the tenant would have no right to renew the lease and would have to vacate the premises. The goodwill that had been built up by the business would be lost or acquired by the landlord.

The tenant could suffer a substantial loss and the courts had therefore set a high benchmark for establishing the seriousness of the landlord’s intentions and capabilities. There had to be real substance in the intention to set up a new business and the occupation of the premises had to be more than short term.

In this case, the judge was entitled to conclude that the landlord had not provided sufficient proof of his intention to occupy the premises in the way he had described.

Please contact us on 01244 318131 if you would like more information about commercial leases and landlord and tenant issues.

Who pays when actual costs exceed the estimates in the contract?

The wording of a contract has prevented a property developer from getting a full rebate on a project where some of the costs exceeded the estimates.

The company had bought a site which needed remediation work before it could be used. The purchase price was based on the notional value of the site once that work had been carried out.

The contract called for the estimated costs of this work to be agreed between the developer and the site owners within six months. These costs would then be deducted from the notional value of the site to arrive at an actual purchase price.

A second clause in the contract stated that the owners would bear any costs that the developers incurred in getting approvals relating to water supplies and the construction of a link road. It was estimated that this would take about five months.

In the event, it took longer and so the cost of obtaining the approvals was higher than estimated. The developer tried to get a rebate arguing that the clause in the contract relating to approvals allowed for actual costs rather than estimated costs to apply.

However, the judge held that the clause dealt with estimated costs in the same way as the rest of the contract.

That decision has been upheld by the Court of Appeal. It held that the cost of the approvals only differed from other costs in that they depended on third parties. It was always possible, therefore, that issues might arise that had not been anticipated. However, there was nothing in the contract to suggest that the cost of obtaining approvals should be treated any differently to other costs.

If the developer had wanted them to be treated differently it should have said so using “express language” in the contract.

Please contact us on 01244 318131 if you would like more information about matters relating to contracts.

Fears over red tape prevent businesses expanding

Many firms are choosing not to expand because of concerns over complex regulations, according to research by the Federation of Small Businesses (FSB).

A survey of its members showed that 27% of those who wanted to expand did not go ahead because they are afraid of tackling the regulations involved. The same survey revealed that half of the businesses planning to downsize or close said their decision was strongly influenced by regulatory burdens.

The FSB has called on the Government to put a freeze on all new regulations – a move it estimates would help to create 258,000 jobs and prevent a further 55,000 from being lost.

The Government has given no indication that it is prepared to introduce a freeze although it says it has saved businesses £3bn a year through its programme to simplify regulations and remove unnecessary paperwork.

In spite of this, small businesses are spending a total of £12bn a year on complying with various regulations, according to research by the Forum of Private Business (FPB).

A recent FPB survey of its members shows that employers in small to medium sized firms are spending an average of 37 hours a month on compliance.

Employment law provides the greatest challenge and costs small businesses £2.4bn a year dealing with issues such as dismissals and redundancy, discipline, absence controls and management, parental leave and holidays.

Health and safety administration costs £1.2bn and small firms also find themselves bogged down in tax administration, building and property regulations, and equality and diversity.

The costs seem enormous when quoted in this way and it’s not surprising that many firms will try to save money by dealing with these issues in-house. However, it is usually more cost-effective and safer to get good legal advice to ensure that compliance matters are dealt with quickly and correctly.

This can save money in the long term and reduce the risk of creating problems unnecessarily – particularly in the area of employment law where failure to follow the correct procedures can lead to costly tribunal claims.

Please contact us on 01244 318131 to speak to one of our expert solicitors if you would like more information about compliance with the various regulations affecting business.