What can a tenant do if their deposit isn’t returned?

18th February 2018

Normally the deposit is held by a third party under a Designated Deposit Scheme and should be refunded to the tenant when the tenancy comes to an end. In cases when it is not or there is difficulty in obtaining the refund there is a Dispute Resolution Scheme. If this does not result in a refund then it may be necessary for the tenant to go to Court but approach a solicitor first to ensure this is the best step to take.

What is a landlord required to do by law when renting a property?

17th February 2018

The landlord must comply with statutory requirements which include placing any deposit paid under an Assured Shorthold Tenancy with a Designated Deposit Scheme, ensure gas and electricity installation complies with current Building Regulations, fitting of smoke alarms and ensuring any furniture left at the property complies with current safety standards. The landlord is also responsible for insuring the property and can produce a copy of the insurance policy if required by the tenant.

How does buying a business property differ from a residential property?

15th February 2018

There are different considerations when buying a business property due to the nature of the purchase, which could include the assigning of a commercial lease or the purchase of equipment or the goodwill of a business. VAT and stamp duty are treated in a different way and there are different standard conditions used. Generally it is more expensive to purchase a business property although there is a certain overlap, particularly if a freehold property is involved.

What is the process for selling a property?

14th February 2018

Once the seller has put the property on the market and found a buyer he instructs his solicitor to start the conveyancing work

  • The seller’s Solicitor obtains a copy of the deeds, ask the buyer to complete forms intended to replace many enquiries normally raised by the buyer’s Solicitor
  • The seller’s Solicitor issues a contract
  • The buyer’s Solicitor checks the contract and raises any enquiries/searches
  • The buyer’s Solicitor approves the contract and the seller’s Solicitor sends the contract to the seller for signing
  • When ready exchange of contracts takes place when a completion date is set (at this point neither party can withdraw and are committed to the transaction taking place)
  • The seller’s Solicitor obtains a statement from the seller’s Lender (if any) calculated to completion
  • The seller signs the final document transferring the property to the buyer
  • Completion takes place when the seller moves out and the buyer is handed the keys

Mistress claims provision for “Lovechild” – We consider the options

13th February 2018

We asked Solicitor and Partner Richard Walford for his thoughts on the case involving a mistress who is making a claim against an estate for her “lovechild”.

Melissa Proles met Baldev Kholi, an Indian entrepreneur and had a child by him in March 2013. Mr Kholi returned to India following a cancer diagnosis and died around a year after his return.   Ms Proles is claiming “reasonable provision” for their 4 year old daughter – read the full story here.

There is much to consider in this case, first and foremost it needs to be recognised as a domicile case – “domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction

Had Mr Kholi died domiciled in England and Wales an action under the Inheritance (Provision for Family and dependents) Act 1975 for the child would be straightforward. It would be assessed under the normal criteria set out in the Act as to what was reasonable for her maintenance. Given the size of the estate and the age of the child one would imagine it would be a reasonably good case with a reasonable chance of success.

BUT you can only bring a case in England and Wales if the deceased died domiciled in England and Wales and it would appear from the details Mr Kholi died in India.

It seems that he was born with a domicile of origin in India. If he acquired a domicile of choice in England and Wales he may well have lost that and reverted to his Indian domicile of origin. The normal basic rule being that you need to support a domicile of origin by maintaining your main residence within that jurisdiction. If that is necessary then it looks as if the deceased’s return to India would have brought any domicile of choice to an end, and therefore he died domiciled in his domicile of origin (India) and – if so -the daughter’s case will fail.

It is difficult to know what the girlfriend could have done to improve the situation. How easy it would have been to persuade him to provide for the daughter in his will is probably a moot point. Even if he were willing there may be practical difficulties. Conflict of Interest rules would help keep a will secret from his wife, but he could not use the family solicitor due to those same rules.

The location of assets and his domicile or nationality might make a difference to what freedom he has to provide for the daughter, so a will giving her a generous inheritance might not do the trick. There is a recent case where a toxic mixture of a deceased’s assets, domicile and sharia law made the will, validly made under English law of an English resident but Saudi domiciled man, completely redundant.

There are plenty of jurisdictions which continue to discriminate against illegitimates and women; and the daughter in question was both so there is plenty of scope for problems.

In the case of the Saudi man, his desire to provide for his partner and their children by making a will in their favour was prevented from taking effect because he had followed the income tax advice from his accountant which failed to account for the fact that – in England at least – if you want to live as a “non-dom.” then you have to die as a “non-dom.” !

The moral of the tale – wills and inheritance are only simple for those whose assets, circumstances and wishes are simple. Everyone else needs a solicitor to help them!

We explain the process of buying a home for a first time buyer

8th February 2018

Jane Gawn, Partner and head of our Property Department, explains the process of buying a home for a first time buyer and the costs involved, what searches are needed and why.

The conveyancing process can be summarised as follows.

  • A buyer makes an offer to a seller which he accepts but there is no legally binding contract at this stage.
  • A sale contract is prepared by the seller’s Solicitors and sent to the buyer’s Solicitors who check this and the title to the property and make all necessary enquiries and investigations before approving it
  • The Buyer’s solicitor sends the buyer the contract to sign and requests a deposit, usually 10% of the purchase price
  • The Buyer must ensure all finance including mortgage finance is in place and signs, returns the contract to the Buyer’s Solicitor and lets his Solicitor have the deposit.
  • Once both Seller and Buyer have signed their contracts – each have an identical copy – exchange of contracts takes place and at this stage a completion date is agreed. Exchange of contracts means a legally binding contract is in place and neither side can withdraw
  • The Buyer’s Solicitor carries out pre-completion searches to ensure there are no changes to the title and requests mortgage monies if the Buyer requires a mortgage
  • By the date of completion all funds should be in place, including mortgage monies requested by the buyer’s Solicitors, All monies must be received by the seller’s Solicitors before completion takes place. At this stage the keys are released to the Buyer who can move in.
  • Following completion the buyer’s purchase along with any Mortgage of the property are registered at the Land Registry and a copy of the title showing these entries are sent to the buyer,

Searches are made before exchange of contracts by the buyer’s solicitors and vary according to where the property is. Searches made for most properties are

  • the local search The local search raises enquiries with the local authority on a variety of matters including planning and building regulation consents, whether roads are publicly maintained and whether public rights of way cross the property
  • the drainage search provides information such as the location of the nearest public water pipes and drains, whether connected to those services and where the water meter is (If there is one)
  • Environment searches include assessment of risk for contaminated land, questions on flooding and consents for private drainage systems.
  • A planning search asks questions about planning consents obtained for the property and in the general area
  • Pre-completion searches disclose any changes to the title since exchange of contracts and also bankruptcy searches against the Buyer if he is obtaining mortgage finance

Searches are made according to the type and location of property, eg, mining searches would be required for certain properties in Cornwall or Wales.

Searches immediately before completion include a search checking for any changes in the title and if the buyer is obtaining a mortgage a bankruptcy search against his name.

Cost vary according to the type and location of the property and whether freehold and leasehold. Leasehold properties mean higher legal and other costs as it is often necessary to pay third parties fees as well as refund the seller for service charge he has paid beyond the date fixed for completion. The buyer will have to pay other fees such as a survey fee if he is obtaining a survey and mortgage application fee if obtaining a mortgage. A costs estimate should be given to the buyer by his Solicitor at the start of the transaction. For a first time buyer these will include stamp duty if the price is over £300,000, search fees (around £300 but could be more or less depending on fees of providers and location of property), land registry fees charges by the land registry to register the purchase on a sliding scale according to price and legal fees charged by the Solicitor for carrying out the legal work.

If you’d like a quote for buying and/or selling a property contact us

Classics Galore!

24th January 2018

We were delighted to attend a presentation at the Royal Devon & Exeter Hospital on 18th January to celebrate the incredible sum of £20,600 which was raised for FORCE Cancer Charity following the Classics Galore! concert in November – it’s certainly something to celebrate!

The performance, which took place in the Great Hall at Exeter University, was the sixth concert organised to raise funds for FORCE. The evening is full of popular classical music with much of it being something people will know and/or recognise.

The money raised from this concert has been ring-fenced for a fund that has enabled FORCE Cancer Charity to spend £93,000 on a new surgical device for the Royal Devon and Exeter Hospital to enhance cancer treatment for women across Devon.

An incredible £90,000 has now been raised for FORCE Cancer Charity by these concerts and we are delighted to have been able to continue to sponsor such a worthwhile and fun event – we are already looking forward to the next one.

“The Classics Galore! Concerts are the brainchild of Dick Passmore, who has lived and worked in Exeter all of his life.  Dick has been a cancer patient, so is well aware of the excellent work carried out by members of the FORCE Charity team in their efforts to support anyone in the Exeter area affected by cancer, be it patients or carers.

Dick’s enjoyment of music convinced him that organising a concert was one small way in which he could give back a little something for the excellent treatment and support he has received during his illness. The first concert in 2007 was a huge success, demanding further similar concerts in 2009 and 2011. Because of the enormous amount of work involved in organising the event themselves, Dick and his wife, Posy, then decided to pass over the organisation to a committee.”

Read more here:

Photo courtesy of Helen Williams-Pugh

Will the Co-op’s promise of an online divorce service really deliver?

18th January 2018

Terry Bastyan a Family Law Solicitor and Partner at Gilbert Stephens gives his opinion on the Co-op’s decision to offer a 24 hour online service.

Terry Bastyan

Co-op Legal Services have made a move to cater for divorces online enabling people access 24/7.  However will the Co-op’s promise of this online divorce really deliver what is needed at what is a very difficult and emotional time for most couples?

The only aspect of this service that differs from your high street solicitor appears to be the opportunity to access information online outside of the normal 9.00 to 5.30 office hours.

At Gilbert Stephens we believe clients benefit from being able to speak to a solicitor face to face before taking such a serious and potentially life changing decision; we feel this is a much better way forward compared with looking to start proceedings immediately on deciding to split, possibly at 3 o’clock in the morning.

The divorce process itself is fairly straightforward, but there are a number of other matters that need to be thought through very carefully – both legal and practical – including arrangements for children, accommodation, property, maintenance and pensions.  We would suggest it is not in a client’s best interests to make these sort of decisions in the early hours of the morning relying on general information provided online with no person to person contact and support.

Most solicitors offer a fixed fee for dealing with a straightforward uncontested divorce, some costing less than the fee that is quoted by the Co-op.  Usually included in these fees is a face to face meeting to discuss potential issues and difficulties, the client can actually meet the person who will be dealing with their case and build a relationship with someone they can trust – a huge advantage.

At Gilbert Stephens we offer:-

  • Fixed fee for a straightforward uncontested divorce for £450.00 plus VAT and the Court fee, currently £550.
  • Fixed fee for the preparation of the documents to put into effect previously agreed financial arrangements (a “consent order”) of £250.00 plus VAT
  • A fixed fee “diagnostic” interview to help identify issues and advise on the options available for up to an hour at a cost of £100.00 plus VAT

We are very approachable and have offices in Exeter, Crediton, Ottery St Mary, Budleigh Salterton, Sidmouth and Okehampton.  Please do contact us if you have any questions about this article and would like to talk about your circumstances.

Prioritise Your Will with Gilbert Stephens

12th January 2018

Photo courtesy of Nora Parminter, Crediton Courier

It is understandable that for many, making a Will is not a priority. For obvious reasons, it is easy to delay making an official Will. However, without a Will your estate will be distributed in accordance with the intestacy rules which divide your estate along your family line.

Having a Will is arguably one of the most important things you can do for yourself and your family, and can reduce the amount of stress placed on your family members once you are gone. Writing a Will is especially important if you have children or other family who depend on you financially, or if you wish to leave something to people outside your immediate family. Not only can a Will legally protect your spouse, children and assets, it can also spell out exactly how you would like things handled after you have passed on.

Many people believe that under the intestacy rules their entire estate will pass to their spouse or civil partner, but this isn’t necessarily the case.If you have an estate worth more than £250,000 then part of your estate will pass to your children or possibly even further down the family line. This may make things more difficult for those you leave behind and may not reflect your wishes.

It is also important to note that co-habitees have no automatic right to receive anything from their partner’s estate – even if they have children. Without a valid Will, any wishes that you have expressed before your death will not be taken into consideration. As the intestacy rules focus on your family, no provisions will be made for friends, charities or even a long-term partner. A Will is the best way to protect your loved ones and ensure that your wishes are carried out after you have gone.

When you visit Gilbert Stephens to discuss your Will they will also be able to provide you with estate planning and tax advice. If you want to ensure that any instructions are carried out in accordance with your wishes once you are gone, please ensure making a Will is a priority for you.