Category Archives: Construction

Property disputes; what’s that all about?

Whereas businesses can encounter all sorts of legal issues and disputes in their day to day operations, one area that seldom gets mentioned is that of “property disputes” specifically disagreements about working premises and where a company conducts their business.

So what happens during a business property dispute and what to expect?

There are several types of property dispute that can arise, such as disagreements between a landlord and tenant over subjects such as tenancy agreements or rent; then there can be issues involving the lease itself regarding disagreements on how the property can be used and for what purposes, or even the right to use your property as the location for your company. Then we can encounter boundary disputes; if another company or landlord claims some of your land or encroaches on your property. Then there are potential arguments over construction and planning, especially if you want to expand and face opposition from other residents or local groups. There can even be disputes when buying or selling land for your company.

If any of the above scenarios occur, in general you should be prepared to deal with varying periods of negotiation and or litigation, depending on the type of dispute.  In boundary disputes, for example, you will need a good legal team to find a satisfactory resolution through the courts; to present your evidence and put your argument forward.  Then, after both sides have made their case, a presiding judge will rule in favour of one party or the other. In planning issues, you will have to submit detailed plans to the council and explain what you intend to do, and then there will be private and public consultations before any work can commence.

All this can take up a lot of time and money so it’s always good practice to get the best legal advice from the outset to minimise your risk; why not give us a call?

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Filed under Arbitration, Construction, contract law, Dispute resolution, Planning Law, Property Development, UK Law

Latest changes in the Legal System

The various specialist civil courts in England and Wales will be reorganised and be officially known as the “Business and Property Courts of England and Wales” from June 2017. They will handle, amongst other matters, international dispute resolution jurisdictions. The courts included within the Business and Property Courts will be as follows:

  • The Commercial Court which will continue to cover all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.
  • The Admiralty Court.
  • The Mercantile Court.
  • The Technology and Construction Court which deals with major technology and construction cases.
  • The Financial List which deals with all banking and financial market issues.
  • The Companies and Insolvency Court.
  • The Patents Court.
  • The Intellectual Property and Enterprise Court.
  • The Competition List.

The new structure will provide more flexibility while preserving the practices and procedures of these courts. Judges with suitable expertise and experience will be able to cross-deploy so as to be able to sit on cases where their expertise can be best utilised. The current situation means that judges who are experts in a particular legal field are not readily available to sit in cases in that area in another court, so, highly expert competition law judges in the Queen’s Bench Division cannot easily sit on the bulk of competition law cases that take place in the Chancery Division.

The overall intention is to enhance the U.K.’s reputation for international dispute resolution and to ensure that the U.K. continues to provide the best business court-based dispute resolution service in the post Brexit world. Business and Property Courts will be set up in Birmingham, Bristol, Cardiff, Leeds and Manchester, initially with planned future courts in Newcastle and Liverpool and these courts will enhance the connections between Business and Property work carried out both outside and within London.

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Filed under Arbitration, Commercial law, Company Law, Competition Law, Construction, contract law, Copyright Law, Dispute resolution, EU Law, Intellectual Property, Legal news, UK Law

Asbestos is no joke.

So you’ve bought or leased your premises and things are going well, the property is a bit dated and run down but well worth what you paid for it and nothing a little refurbishment won’t fix. What could go wrong? In a word, Asbestos.

Before anyone knew of its toxic effects, Asbestos was used extensively as an insulator, fire retardant and anti corrosion agent. So it can be found in ceiling tiles, pipe insulation, boilers and sprayed coatings. It was extensively used from the 1950s through to the mid-1980s but can be found in buildings built before the year 2000.

If you’re the landlord, tenant or managing agent of a commercial property you may be responsible for managing asbestos, unless your contract or lease says otherwise. If not, you must:

  • If you have a lease or contract, check who is responsible for asbestos.
  • Find out where the asbestos is (you’ll probably need an external accredited surveyor to carry out an asbestos survey).
  • Have the material analysed and keep a record of what you find.
  • Carry out a health and safety risk assessment.
  • Share the information with anyone likely to come into contact with the area, e.g. builders.
  • Keep anything containing asbestos in good repair or have it sealed or removed.

If you don’t have a plan to deal with asbestos and put it in action, you could face:

  • a fine of up to £20,000.00
  • imprisonment for up to 12 months
  • for a serious breach you could face an unlimited fine and/or imprisonment of up to 2 years.

Owners of derelict or vacant premises and warehouses also need to carry out an asbestos survey. In occupied buildings several permutations could apply:

Occupied by one leaseholder: the agreement might be for either the owner or leaseholder to take on the full duty for the whole building; or it might be to share the duty.

Multiple –occupation: the agreement might be that the owner takes on the full duty for the whole building, or the duty might be shared, i.e. the owner takes responsibility for the common areas while the leaseholders take responsibility for the parts they occupy.

Sometimes this responsibility is passed on to a managing agent. If there is no agreement or clause in a lease, in these cases the duty is placed on whoever has control of the premises, or part of the premises. Often this will be the owner.

If you need to know more about the legal aspects of managing asbestos, give is a call.

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Filed under Commercial Property, Construction, Duty of care, UK Law

Oh no, not Health and Safety again!

Most people groan when this topic is mentioned, but as businesses grow, sooner or later they get involved with Health & Safety legislation; usually through civil compensation claims for damages following accidents or incidents in the workplace.

Health and Safety is a complex and wide ranging topic and we haven’t the space to cover it all but one vital component that may mitigate any problems is having an effective health and safety management system in place.

Why? Well laying aside for a moment that it is the right and responsible thing to do, an effective health and safety management system will help to reduce avoidable losses, including lost opportunities. Furthermore you have a legal obligation to comply with the statutory provisions and failure to do so could lead to criminal prosecution. Employers have a duty to prepare a Health and

Safety Policy specific to their organisation and where they have five or more employees. Such a document should provide a clear explanation as to who does what, when and how in any foreseeable situation involving risk to Health and Safety.

To be effective an H&S management system needs to be “active” as opposed to “reactive” or even “proactive”; the reactive approach often leads managers to focus on the specific failures and not on underlying causes. Incidents are rarely caused by one failure, but are generally due to a series of linked failures that are eventually triggered by a specific event, which means H&S management should be integrated into all parts of an organisation, with employees and others such as self-employed contractors, encouraged to take an active part in improving health and safety at work.

Any such system comprises of five basic steps, an occupational health and safety policy, planning, implementation and operation, checking and corrective action and management review and should contain the following elements:

  • Policy development: review the current situation to determine a benchmark and look at where you are starting from.
  • Planning: Allocate senior managers specific responsibilities and allocate resources, check the plan with your staff.
  • Delivery: Use competent advisors and create a system of operation and document control, risk assessments, records, training, communication and reporting.
  • Monitoring and action: Continuously monitor the situation, Use team meetings/toolbox talks to audit procedures and evaluate and take corrective action.
  • Review performance: perform regular reviews, including every time any serious incident occurs.
  • Safety Culture: instil a positive safety culture and active consultation programme. Strive for continual improvement

An effective health & safety strategy can bring added benefits and by products, especially as regards increased efficiency; keep safe and if you need any help or advice, give us a call.

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Filed under Construction, Dispute resolution, Duty of care, Employment Law, EU Law, HR Issues, UK Law

How to Speed Commercial Conveyancing

If you own commercial property, from workshops to warehouses and retail outlets, sooner or later you may want to increase or reduce your portfolio. If you’ve done this before, you probably know the pitfalls, but there’s no harm in a gentle reminder and for those starting out buying or selling commercial property here’s a few dos and don’ts.

Commercial property conveyancing can be a complex and lengthy procedure, so it’s always best to get in touch with a Solicitor who specialises in commercial property transactions as soon as you decide to go ahead, but before you do anything else. Don’t fall into the trap of not getting a commercial property solicitors involved until the deal is finalised, because inevitably some legal aspect or issue will have been overlooked and this will cause further delay and cost in completing the deal.

Early notification enables commercial property solicitors to begin working on paperwork concerning the deal so considerably cutting down the time it takes to complete the sales process so by the time you finalise the deal most of the paperwork would have been completed.

Do your homework- make sure that you have all the necessary information and documents readily available, for example; proof of your ID, your mortgage lender’s details, contact details and copies of the deeds involved, etc.

Be prompt with your responses- the Conveyancing process will require your constant and consistent attention; you may frequently be sent questionnaires and forms to be filled in, you may need to make yourself available to answer queries from your solicitor or any of the other parties involved. Setting the process in motion and then going on holiday is really not recommended!

Reply promptly- Send any written responses by registered/recorded delivery or get them delivered by hand to make sure vital documents don’t get lost or go astray.

Read through all the documents carefully to avoid mistakes- this perhaps goes without saying, but failure to read documents properly could cost you time and money. More importantly, if you come across anything that you find too confusing and hard to understand, contact your solicitor as soon as possible so they can have the opportunity to guide and simplify the process for you; don’t try to bluff your way through.

Here at Bradley And Jefferies, we have a dedicated team specialising in buying and selling commercial property, why not give them a call?

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Filed under Commercial law, Commercial Property, Construction, Dispute resolution, Duty of care, Planning Law, Property Development

The 1% Chance

Someone once famously stated, “There’s no such thing as a hundred year flood” just before it happened; the sort of disastrous flooding that has a 1% chance of happening every year. The U.K. Environment Agency has estimated that one in six properties in England are at risk from flooding. Of these, 2.4millon properties are at risk from flooding from rivers or the sea alone, 3million are at risk from surface water alone and 1million are at risk from both. This doesn’t take into account those properties at risk of complete loss to coastal erosion over the next 20 years or so. And that’s England. In Wales, over 200,000 properties are at risk from sea or river flooding and approximately 230,000 properties are at risk from surface water flooding.

Buying commercial property can be expensive in time, effort and money. The very last thing you’d want to see is that investment literally washed away and it’s not always obvious that a property is at risk of flooding. Even those far from the coast or a river can be subjected to flooding by:

Surface water – this occurs when heavy rainfall overwhelms the drainage capacity of an area.

Sewerage– can happen when sewers are overwhelmed by heavy rainfall or when they become blocked.

Groundwater – when underground water levels rise above surface level usually in low lying areas underlain by permeable rocks.

As far back as June 2013, the Government agreed a Memorandum of Understanding with the Association of British Insurers to develop a not-for-profit flood insurance scheme, known as Flood Re. Flood Re is intended to ensure that homeowners whose properties are at high flood risk can obtain affordable flood insurance with cover at a set price. However certain categories of properties (e.g. leasehold, small businesses, Band H properties) are excluded from the scheme. Flood Re is to come into force this summer.

It never hurts to consider the risk of flooding when looking at buying a commercial property and, where appropriate carry out further investigations:

  • Conduct searches
  • Making enquiries of the seller, and
  • Instruct a valuer or surveyor to carry out a physical inspection, survey or valuation generally and to provide advice on the impact of flood risk.
  • Don’t just rely on the results of any one category of investigation.
  • Establish the terms on which buildings insurance, including flood risk cover, is available.

Consider the level of risk to which the property is exposed with a building surveyor or, if necessary, a flood risk assessment consultant. As always, if you need help and advice on buying commercial property, give us a call.

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Filed under Commercial Property, Construction, Duty of care

Commercial property; who is liable for dilapidation?

Recently the Court of Appeals has reviewed the area of dilapidations liability, which given that the length of commercial leases has been steadily declining on average, is quite a timely move. Dilapidations are defined as, “the repair works which have not been undertaken by the tenant, in breach of the terms of the lease”. When a Commercial lease ends the landlord is entitled to damages equal to the cost of repairs that the tenant should have carried out, plus the loss of rent during the period needed to carry out those repairs, although this is capped under section 18(1) of the Landlord and Tenant Act 1927

Unfortunately the interpretation of these “repairs” leaves a lot of room for disagreement on the extent of work required, the cost of the work and the liability for it. For example, it is possible that not all of the work required to make premises fit for re-letting falls within the requirements of a tenant’s lease agreement, so these costs cannot be recovered from the tenant.

Supersession is another matter that needs to be thought about. Supersession occurs when the work required for re-letting would have made some of the works required to comply with the repair covenant redundant, for example if a building facade was left in good repair by the tenant but the landlord had to have it rendered to make the building more attractive for re-letting, the landlord would not suffer a loss if those repair works were not done.

The tenant is also obliged to return the premises, “in good and tenantable repair and condition”, with the existing mechanical and electrical systems in satisfactory working order. They are not required to return the premises with new equipment or with equipment with any particular life expectancy.

Lifts and air conditioning apparatus often form the basis of a dilapidations dispute. Unless there is wording in the lease to the contrary, mechanical and electrical apparatus should be returned to the landlord in working order, and need not be replaced with brand new apparatus.

Dilapidations cases are sometimes described as a ‘horse trade’. While there is often some trade off in negotiations between surveyors, there are interesting and difficult points of law as well, which should be born in mind, so both tenants and landlords should seek legal advice both when drawing up repair covenants in leases and when taking on a lease as a tenant. If you are affected, give us a call.

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Filed under Commercial law, Commercial Property, Construction, Dispute resolution, Duty of care, Property Development, Restrictive practices