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Monthly Archives: April 2011

Attempted mortgage fraud prior to residential conveyancing increases

Attempted mortgage fraud as part of the residential conveyancing process is increasing and something which solicitors need to be more aware of, according to figures from a credit rating agency.

Experian said that 32 out of every 10,000 applications for home loans in 2010 contained untrue information – a rise of 14% on the previous year – and that it was likely to continue because of pressures on the economy.

Because of the difficulty in obtaining finance to buy a house or flat, prospective buyers often do not reveal they have had problems obtaining credit in the past or exaggerate their income in order to meet mortgage criteria.

This problem is particularly prevalent where prices for houses and flats have risen quickly in the last decade, such as in London and other city centres.

Director of identity and fraud at Experian Nick Mothershaw said: “Fraud in the UK is a growing billion-pound illegal business with fraudsters resorting to innovation and inventiveness, targeting any perceived weaknesses in the system. Fuelled by the recession’s aftermath, it is likely that financial services providers could see fraud attempts rise during 2011.”

As well as being alert to the honesty of buyers and sellers, property conveyancing lawyers have an important part to play in combating other types of mortgage fraud, such as identity fraud or pretence of ownership of a home, prior to drawing up a contract for a sale.

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Four year Young divorce settlement battle sees celebrity accusations

The high-value divorce settlement of Michelle Young and her estranged husband Scot is currently in its fourth year and the hearing in London’s High Court has thrown more coals onto the fire of celebrity divorce news.

Mrs Young,49, claims that her husband is worth £2 billion and she has named high-profile friends of his, such as businessman Sir Philip Green and TV impresario Simon Cowell, as those who have aided him in concealing assets and wealth so as to avoid a huge financial settlement on divorce.

Mr Young claims he owes around £28 million and therefore cannot afford to pay maintenance or a lump sum settlement.

The Telegraph reports that, in court, Mrs Young told former divorce lawyer Mr Justice Mostyn, presiding, that her husband’s claim of poverty was erroneous and he had made huge sums investing in Russian and UK property.

She then claimed that restaurateur Richard Caring, as well as Sir Philip and Mr Cowell, had helped her husband to hide assets.

On announcing this in court Mr Justyn Mostyn asked, “Do you mean the Sir Philip Green? Do you mean the Simon Cowell?

“They are just some of the few,” she replied.

When asked if she realised that she was effectively accusing the men of attempting to pervert the course of justice she replied in the affirmative.

As high-value divorce settlements go this one is pretty challenging because the court must decide which spouse it believes is telling the truth about the family finances before any Order can be made in respect of financial settlement.

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Nearly half of children have divorced parents

The increasing number of children in families where the parents have consulted divorce solicitors is revealed in a new report by the Centre for Social Justice.

It seems nearly half (48%) of under-16s will have known the upset of their parents splitting up and seeking family law advice on dividing the couple’s assets. This compares with a figure of 40% of children involved in marital break-ups ten years ago.

The researchers looked into the history of relationships in the UK and found that, contrary to some other reports, co-habitation by unmarried couples was not as common as today.

They suggest that family breakdown has such an important effect on children that the Government should introduce policies to support families, such as increased access to relationship education and couple support as well as help from health visitors, tax allowances for married couples and inclusion of marital status information on official forms.

Births to unmarried mothers are at record levels and nine out of ten couples live together before getting married, which compares with fewer than one in 30 before the Second World War. Cohabitation rights, including changes to child access law, have only become recognised in recent years.

The executive director of the Centre for Social Justice says the increase in cohabitation is a major factor in the breakdown of traditional family life with a child in a single-parent family 75 per cent more likely to struggle at school, 70 per cent more likely to become addicted to drugs, 50 per cent more likely to develop a drinking problem and 35 per cent more likely to be unemployed in adulthood.

English law recognises that child law applies whether the parents are married, in a civil partnership or co-habiting and a family law solicitor can offer advice. This will cover the child’s or children’s welfare with regard to parental responsibility, residence agreement orders and contact agreements.

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Changes in law involving property sales from April 6

Many people involved in the world of property sales, including conveyancing solicitors, are aware that stamp duty land tax (SDLT) rates changed from April 6 but a number of other regulations affecting home purchases have also come into force.

Land agreements have become subject to competition law from which they were previously excluded. These usually include agreements between businesses such as transfers of freehold and leasehold property, assignments of leases and formal agreements on use of land such as permitting access or setting up and maintaining restrictive covenants.

Instances where this new anti-competitive ruling might be used include where one property owner might wish to prevent a business rival from having access or use of land over which it had control.

New guidance is being sent to residential conveyancing solicitors by the Land Registry regarding statements of truth which are required when standard documents proving someone has legal entitlement to a property are not available.

This can happen in situations such as where documents have been lost or destroyed or where someone has come into possession of a property through unconventional means. A solicitor will then be required to make a statement to the Land Registry applying for new registration.

The new Stamp Duty Land Tax rate increases to 5% apply for all residential property purchases over £1m and are applicable where the effective date of the transaction was on or after April 6 2011.

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Late administration extensions may be penalised

Registrars at the Companies Court have recently indicated that any applications to extend an administration should be made at least six weeks before the administration is due to expire rather than the previous four week period.

 The penalty for failure is to exclude administrators’ costs of the application which has already been applied in a number of cases. We understand that the Court is considering issuing formal guidance in a Practice Note or Direction.

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Unfair dismissal qualifying period may double

Employees with a minimum of one year’s service have the right to claim unfair dismissal. Once an employee has passed the one year milestone, the employer has to show that reason for a dismissal is fair and has to follow a fair procedure.

The government is considering a change to the qualifying period for unfair dismissal claims – to two years. This was first revealed by Lord Young, then enterprise adviser to the government, in an interview with the BBC during the launch of the government’s “Backing Small Business” initiative in November 2010. It is expected that formal recommendations will appear early this year (2011).

This means, at first sight, that employees in their first two years working with an employer would have no protection against being dismissed at will (provided that the correct notice was given) and employers should therefore face fewer unfair dismissal claims.

However, employees are already protected against discriminatory dismissals and where dismissal is automatically unfair (for example, where they are sacked because of whistleblowing, for pregnancy and maternity reasons, trade union involvement, Working Time Regulations claims etc). Employees need no qualifying period for these claims and this would not change. Such claims could increase where the opportunity to claim basic unfair dismissal disappears.

This is not entirely new territory. There was a two year qualifying period for unfair dismissal for several years until 1999, when it was changed to one year. The concept has already been tested by the courts (for discriminatory effect). In 1999 in the case of R v Secretary of State for Employment ex p Seymour-Smith, the House of Lords decided that the two year qualifying period was potentially discriminatory against women, because women were less likely than men to accrue two years’ continuous service. However, it held that there was potential justification (on social policy grounds) for a two year qualifying period. This may discourage further challenge.

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Some property lawyers may benefit from pilot scheme

Taxpayers’ money is being used to support a pilot scheme for first-time buyers being run by Lloyds TSB. It is hoped this will boost residential sales by breaking the mortgage deadlock, although property lawyers in the South East and London are unlikely to see a change in their level of activity.

Initially, local authorities in Blackpool, Warrington, Northumberland and East Lothian will take part in the trial scheme with a further 11 councils, also in northern England and Scotland, planning to set up the new finance arrangements.

Known as Local Lend a Hand, the councils each agree to provide funding equal to 20% of a property’s value which is added to a 5% deposit from the buyer, making the mortgagee eligible for a specific Lloyds mortgage. Potential borrowers still need to apply to the bank and will have to meet its usual criteria.

However, if house prices slump or the property has to be repossessed, the bank will not lose out but keep the funds which have been guaranteed by the council and paid for by the public purse.

The councils involved in the initiative specify the postcode areas they wish to cover and the maximum size of loan. They are expecting to help between 40 and 300 first-time buyers each with a qualifying loan of between £100,000 and £150,000.

Conveyancing solicitors in areas of the UK where home prices are at their highest cannot expect to see an influx of first-time buyers seeking property contract services as a result of the scheme because the cost of guaranteeing the size of loan required will be beyond the budgets of local authorities.

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Civil partnership agreements now legal on the Isle of Man

Gay couples from the Isle of Man will soon be able to undertake a civil partnership agreement on the island as a new law has been signed in Tynwald, the Parliament of the Isle of Man.

From 6th April 2011, Manx homosexual couples, within a civil partnership, will have the same rights regarding inheritance, pensions and tax allowances as married couples.

Homosexuality was only decriminalised on the Isle of Man in 1992 and gay rights campaigners have long championed a change in the law regarding legal partnerships.  Many now state that, finally, the Island has ended its legal discrimination against same-sex couples. 

Allan Bell, MHK, Minister for Economic Development, said that the 20-year battle to end the inequity had “been an extremely difficult time for gay people wishing to have open, loving caring relationships”.

However, the passing of the bill was not without opposition.

Peter Murcott, a Methodist preacher on the island, said, “It will have a fundamental change in due course on how the next generation is brought up to conceive family life and, ultimately, it is going to introduce an anti-Christian attitude and it will be contrary to the beliefs of many other religions as well.”

Mr Bell commented, “Not everyone will feel comfortable with this legislation but it’s been a much easier debate than the fierce resistance we had 20 years ago when we first started this process.

“The gay community on the Isle of Man has been a repressed community on the island for many years.

“Today is a red letter day for the island and for those groups.”

It is likely to follow that gay islanders will need legal advice on pre-civil partnership agreements in order to protect their wealth and assets and, of course, in years to come, lawyers will be asked to act in civil-partnership dissolutions, which are the legal equivalent of a divorce.

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Property lawyers highlight Stamp Duty change for bulk-buyers

Property lawyers who handle residential conveyancing for buy-to-let investors will be anxious to point out to their major clients a point in the Budget which may have been missed and could give investors a financial boost.

The Chancellor of the Exchequer is planning to change the way Stamp Duty is charged for bulk buyers of residential property.

Currently, if more than one house or flat is bought in a single transaction, the land tax is charged on the total cost of the purchase and, with duty of 1% for home purchases of between £125,000 to £250,000, rising in tiers up to 5% for purchases of £1m or more, this can add considerably to the overall bill.

The proposal, which is due to be approved when the March 2011 Budget becomes law, will change this system so that Stamp Duty will be paid on an average price of a number of properties instead.

This could mean that a buyer of several flats, which individually had a price of £200,000, would find the tax bill was based on that figure rather than a total of, say, six times that if six flats in a block were being sold together. The new system could be particularly advantageous to buyers of London properties with their high prices.

Although housing market experts expect the changes to mainly benefit institutional investors, they also will apply to individuals buying more than one property.

However, there is some disquiet among those who believe the move will act against the interests of first-time buyers seeking homes they can afford who will find there is extra competition from landlords taking advantage of the new reduced taxes and buying up lower-priced properties to rent them out.

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Civil partnerships in religious premises – Public consultation launched

Healys family solicitors in Brighton and London can offer legal advice on pre-civil partnership agreements and civil partnership dissolutions.

The team welcomes the launching of the Government Equalities Office public consultation on enabling religious premises for the registration of civil partnerships.

Representatives of faith groups, LGB (lesbian, gay and bisexual) organisations and local authorities, owners and managers of buildings approved for civil partnership and all interested parties and individuals have until 23 June 2011 to respond – questionnaires are available to download at www.equalities.gov.uk

The executive summary of the consultation document states that the Government is committed to advancing equality for LGB people and wishes to ensure religious freedom for people of all faiths. As a means to further these aims, the legal barrier which prevented civil partnerships being registered on religious premises is being removed.

The measure will be completely voluntary – each faith group and representatives of premises will be able to decide whether they will host civil partnership ceremonies.

The consultation document sets out the proposed process for enabling the registration of civil partnerships in religious premises and states that the changes will come about by bringing into force section 202 of the Equality Act 2010 which removes the ban in the Civil Partnership Act 2004 on civil partnership registrations being held in religious premises. The change will affect England and Wales.

Healys family solicitors in Brighton and London can advise on legal matters arsing from the registration of a civil partnership, including the drawing up of pre-civil partnership agreements and acting on behalf of petitioners or respondents in a civil partnership dissolution.

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