Registration as British for Irish citizens
The political relationship between the United Kingdom and Ireland dates back to the 16th century. Being the closest geographical neighbour, Ireland is the most important UK’s economic, trade, investment and tourism partner. Both countries form a part of the Common Travel Area which allows British and Irish citizens to move freely and reside in either country without restrictions, including the right to study or work.
In light of the UK’s exit from the European Union in 2020, the rights of Irish citizens in the UK remained protected. It was, however, possible for Irish citizens, as for any EU nationals, to apply for a status under the EU Settlement Scheme and even apply after the 30th of June 2021 deadline if there are reasonable grounds for making a late application.
The immigration relationship between Ireland and the UK, however, has not always been tranquil. Recently, there have been tensions over migration in the wake of the UK-Rwanda Agreement as there has been an influx of migrants arriving in Ireland from Northern Ireland, which forms a part of the United Kingdom.
For those Irish citizens, who wish to obtain British nationality, there have been several routes to do so. The most common route is naturalisation. Other than this, Irish citizens can become British by birth, descent or double descent.
This year, one more route has been introduced with the passing of the British Nationality (Irish Citizens) Act 2024. The Act makes provisions for Irish citizens to become British by registration having lived in the UK for 5 years and without sitting a citizenship (Life in the UK) and/or English language test, as required under the naturalisation process. The two-section Act sets out the absences limit that has to be met along with the non-previous breaching of immigration laws rule. In special circumstances, the Secretary of State may treat these requirements as being satisfied where they are not.
The relevant provisions set out in the Illegal Migration Act 2023 are preserved in this new Act, which restricts certain persons from applying based on the initial irregular arrival to the UK. Notably, however, there are no restrictions on the time that an applicant must hold Irish citizenship before submitting the registration application. As such, an applicant commencing residence in the UK as a non-Irish citizen and later acquiring Irish citizenship can be eligible to apply as long as the overall time spent in the UK before the date of application is at least 5 years.
The Act makes a welcome addition to the current legislation framework. The demand for British citizenship from Irish nationals is, however, yet to be seen.
This article is provided for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com
The Three-stages of Security for Costs
What is Security for Costs
Security for costs is an application that a party (Defendant during the proceedings) can make where they believe the other party (the Claimant) does not have the financial means to pay any legal costs awarded to the Defendant should the Claimant’s claim be unsuccessful at trial.
Who can apply for Security for Costs
Usually, an application for security for costs is made by a Defendant, however there are some circumstances where an application can be made by the Claimant (i.e. if the Defendant has made a counterclaim).
The 3-stage process that the Court consider
When the Court considers a security for costs application, there are three stages which are as follows:
- Grounds for Security for Costs
- Whether the Court should exercise its discretion
- Quantum
Grounds for Security for Costs
There are a number of grounds that the Applicant (the person making the application) must satisfy in their application (but not limited to) such as:
- Whether the Respondent resides outside of the UK (or is not a resident in a State bound by the 2005 Hague Convention)
- The Respondent’s address is incorrectly stated on the claim form
- The Respondent’s address is omitted from the claim form
- The Respondent has changed their address during the proceedings with the intention to avoid the cost consequences of the court proceedings.
What the Court’s take in to account
Applications for security for costs are usually dealt with at a hearing. The Court will consider all the relevant factors but not limited to the following points to decide whether the Court should exercise its discretion:
- Whether the grounds for Security for Costs have been satisfied
- How long the Applicant took to make the application
- The financial position of the Respondent
- The implications on the Respondent if an order for Security for Costs is made
- All circumstances of the case
- Whether the Respondent has After The Event insurance
Quantum
Once the court has decided that the grounds have been satisfied and that they should exercise their discretion to grant an order for security, the Court will then consider the amount of security and what form the security should be given.
Usually, the Applicant would request 100% of all their anticipated legal fees set out in their application (cost budget) however the court would review the Applicant’s anticipated costs and exercise their powers to assess the Applicants costs (like detailed assessment).
Conclusion
A party can make an application for security for costs at any stage during the court proceedings however, the earlier the application is made the better.
An Order for Security for costs is discretionary and the court would take in to account the time it has taken for the party to make such application which of course can have a detrimental effect on the court’s decision.
This article is provided for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com
Artificial Intellegence – a conveyancer’s friend or foe
Technology's influence has been reshaping traditional practices for generations. Conveyancing is no different and conveyancers are now having to come to terms with the integration of artificial intelligence (AI). AI is transforming conveyancer’s day to day working lives. It is changing how conveyancers obtain search results, conduct due diligence, ensure security and navigate regulatory complexities. However, whilst the use of AI can be used as a force to enhance the industry’s effectiveness, there will always be those who see opportunities to fraudulently manipulate technology and AI is certainly no exception.
The conventional process of gathering search results has often been hindered by delays and cumbersome data retrieval. AI is changing this narrative by swiftly scanning and sorting through large volumes of data. AI expedites the extraction of pertinent information, providing conveyancers with a comprehensive overview in a fraction of the time it used to take. This acceleration not only reduces waiting times but also allows for prompt decision-making, a crucial element in the time-sensitive world of property transactions. AI's integration into the realm of conveyancing is not only accelerating the acquisition of search results but also reshaping our approach to information retrieval.
Due diligence, a crucial phase of any property transaction, has traditionally involved laborious manual searches through extensive volumes of data. AI has revolutionised this process by rapidly scanning large datasets to reveal any point of note associated with a property, its owners, and its prospective owners. By automating this data intensive task, AI accelerates due diligence timelines and reduces the risk of crucial information ever being missed. Conveyancers can now offer clients a more efficient and comprehensive due diligence process, enhancing trust and the speed of transactions.
Navigating the intricate network of regulatory compliance and legislative changes is a challenge faced by all legal professionals, and particularly for those working within the everchanging frameworks of property related regulations and legislation. AI allows conveyancers to constantly monitor amendments, to keep pace with changing regulations and legal requirements. Conveyancers can rely on AI to stay up to date with the latest guidelines and legislation, ensuring that every transaction adheres to the highest standards of legality as well as ethical practice. This insight provided by AI offers conveyancers a sense of assurance that their transactions remain compliant in a constantly changing regulatory landscape.
The incorporation of AI into conveyancing is not just about expediting processes; it's about improving the entire experience for both conveyancers and clients. AI's speed in gathering search results, its predictive abilities in risk assessment, its ability to streamline due diligence, and its ability to help ensure regulatory compliance are helping the industry toward a future marked by efficiency and accuracy. As AI continues to evolve and integrate seamlessly into conveyancing practices, the industry is in a position to offer an even higher standard of service and assurance to those navigating the intricate world of property transactions.
Like many industries at this point in time, the advantages AI provides conveyancers must be met with caution. Whilst AI has emerged as a powerful tool with the potential to revolutionise the field of conveyancing, it also brings forth its own set of threats that must be carefully considered.
One concerning aspect is the emergence of AI-powered fraud schemes. As AI technology becomes more sophisticated, criminals will exploit it to create intricate and hard-to-detect fraudulent activities. AI-driven algorithms can generate fake documents, impersonate identities, and manipulate data, posing significant challenges to traditional fraud prevention methods.
The vulnerabilities in cybersecurity cannot be ignored. AI systems themselves can become targets of cyber attacks. If fraudsters manage to compromise AI algorithms or access crucial data, they can leverage the technology against the very systems meant to safeguard against fraud, potentially exposing sensitive client information.
Recently, fraudsters have been able to use public data leaks to use AI algorithms in order to comb through email accounts involved in leaks. The criminal’s algorithms will identify those accounts containing emails with key-words associated with property transactions. Once identified, the fraudsters will target said accounts, the accounts of property purchasers more often than not, with emails enticing purchasers to send funds to fake client accounts. Whilst clients may recognise that something is not quite right with the emails, the importance of personal relations is evident here. A client having full knowledge of their transaction, knowing that this may be a strange time to send funds, will prevent them from ever doing so.
Another critical consideration is the issue of human oversight. Although AI excels at processing vast amounts of data and recognising patterns quickly, it lacks the nuanced judgment and intuition inherent in an experienced conveyancer. Relying solely on AI systems for fraud prevention may lead to false positives, flagging legitimate transactions as fraudulent, or false negatives, overlooking genuine instances of fraud. AI algorithms learn from historical data, which can contain implicit biases. This can inadvertently lead to discriminatory practices, where certain individuals or properties may be unfairly targeted or excluded from transactions based on historical patterns.
Additionally, legal and ethical challenges come to light with the adoption of AI in fraud prevention. Determining accountability and liability for AI related fraud can be complex, raising questions about who bears responsibility when an AI system fails to prevent fraudulent activities is a fresh issue the industry does not have a definitive answer to.
To address these concerns, it is essential to strike a balance between implementing the advantages of AI and the significance of human involvement. Combining AI systems with human expertise and judgment can ultimately enhance the overall effectiveness of fraud prevention measures.
Looking to the future, there is of course a risk of overreliance on technology. The convenience and efficiency that AI brings might inadvertently lead professionals to become complacent in detecting potential fraud when they overly rely on AI systems to handle the task. Combining this with the use of AI by fraudsters themselves and there is certainly cause to be cautious of AI and its impact on the conveyancing process.
Legal work will always be an industry which requires a human touch. Clients rely on a conveyancers personal experience and person ability in the same way they rely on their skills in dealing with the law. Incorporating AI into the world of conveyancing has to be a conscious process which considers all advantages and disadvantages. As always, the client, their goals and their experience, will remain at the heart of all legal work. Conveyancing is no different.
Account Freezing Order
What is an account freezing order (AFO)?
An AFO is an order granted by the Magistrates Court to freeze a bank account in the UK. This order is usually applied for by an enforcement officer, such as the police, if they have suspicion that the monies on account are part proceeds of criminal activities or intended for illegal purpose. The most common event is a large sum of monies transferred into a bank account or multiple deposits of cash into a bank account in a short period of time.
A common case
In a common scenario, you will first notice that you suddenly have no access to your bank account via mobile banking or online banking, or your balance in your account becomes zero. When you call the bank they may tell you that they are unable to deal with this or provide any information.
Shortly after, you either receive an AFO from the police or a notice of application for AFO from the court.
The threshold for the initial AFO application is quite low and the court is likely to grant it for an initial period of time.
Period of AFO
Once the AFO is granted, it would be subject to a period of time for the police to undertake the investigation as well as for you to provide an explanation and all evidence. The period of an AFO varies depends on the complexity of the case. The most common AFO lasts 6 months. If 6 months is not enough for you to the provide evidence or for the police to conduct the investigation, it could be extended up to 2 years.
Variation of an AFO
In the case that all monies that you could utilise are frozen in that bank account or you would need them for some urgent matter, you are entitled to make an application to the court to vary the AFO. You will need to demonstrate your reasonable living expenses and / or the urgency of the matter. You can also make application to pay your legal expenses from the frozen money.
Investigation
As mentioned above, during the investigation the police will ask you for an interview to answer questions they have or provide a written explanation of your funds. It is usually advisable to seek independent legal advice at this point before responding to the police. The main aspect is to give proper explanation for the funds in your bank account. For example, if some monies are your salary, you may need to provide your employment contract/pay slip or a confirmation from your employer if necessary to show that these monies are your rightful gain.
Possible results
If the police are satisfied with the clean source of funds, they will make another application to the court to set aside the initial AFO. Once the court approves that the police will inform the bank to unfreeze the account and release the monies to you.
It is also possible that, after the investigation, the police may decide to apply for the relevant amount or all of them to be forfeited, if they think those funds are the proceeds of crime. They will serve you a notice and you could raise an objection within a certain time period. If objected, you will need to make an application to set aside such forfeiture, the case will then proceed to the court for the judge to decide whether the forfeiture should be granted. You can seek legal advice for further details.
It is also open to you to apply to discharge the AFO if there are sufficient grounds
Seek legal advice
It is important to seek legal advice as soon as possible once you receive an AFO. Chan Neill Solicitors can provide expert guidance on the procedure and the best approach for your case. By assessing the validity of the AFO and carefully reviewing the evidence and circumstance surrounding the case, we can offer a variety of tactics to ensure the most favourable outcome for your case.
Financial Remedy
What is a Financial Remedy Order?
When a married couple petitions to divorce in the UK, they need to also resolve relevant financial issues. This is commonly referred to as financial remedy proceedings, with a Financial Remedy Order. This is a process by which a couple's assets and income are divided upon divorce or separation. The objective of financial remedy is to provide a fair and reasonable financial settlement between both parties.
Application
The procedure for financial remedy in the UK begins with an application to the court. The application form is called Form A. This application can be made by either party involved in the divorce or civil partnership dissolution. The application is made to the family court, which has the jurisdiction to hear and decide such cases.
First Appointment
Once the application is received by the court, the first step is to arrange a hearing to determine how to proceed with the case. At this hearing, the court will consider whether there is a need for further hearings and what type of financial remedy order is required.
The next step is to gather all relevant financial information from both parties. This includes assets, income, and expenses. Both parties are required to provide full disclosure in a Form E of their financial situation, including any debts, savings, pensions, and other assets. Both parties may raise questions regarding the disclosure. If a property is involved, the court may order to instruct an expert on valuation and tax issue. Failure to provide full disclosure can result in the court imposing a penalty.
Both parties shall exchange their proposals/offers to settle their case before the next hearing.
Financial Dispute Resolution Hearing (FDR)
If no settlement is reached, FDR will happen. The main objective of an FDR hearing is to encourage parties to reach an agreement on financial matters before proceeding to a final hearing, which can be expensive and time-consuming. The FDR hearing is an important stage in the financial remedy proceedings as it provides an opportunity for both parties to have a frank discussion and negotiate a settlement.
At the FDR hearing, the judge may provide an indication of how they would likely decide if the matter proceeded to a final hearing. This is intended to encourage parties to make a realistic settlement offer that is in line with what the judge might decide at a final hearing. If parties reach a settlement at the FDR hearing, it will be recorded in a legally binding court order, which can be enforced in the future.
Final Hearing
The Final Hearing is the last stage in financial remedy proceedings in England and Wales. It is where the parties present their evidence and legal arguments to the judge who will then make a final decision on how the couple’s assets will be divided. It is important to note that the vast majority of cases are settled before reaching the Final Hearing stage, either through negotiations or via alternative dispute resolution methods such as mediation or arbitration. However, if the parties cannot come to a mutual agreement, then the Final Hearing will be the final chance to make their case.
During the Final Hearing, each party will have the opportunity to present their case to the judge, including calling witnesses if necessary. The judge will then make a final ruling, taking into account all the evidence and legal arguments presented. The Final Hearing is a crucial part of the financial remedy process and it is important for both parties to prepare thoroughly to ensure the best outcome.
Conclusion
Financial remedy can be a complex and challenging process, and it is essential to seek legal advice from solicitors who have excellent knowledge and experience in family law.
Permanent residence policy changes; stopping certification of tech talent
Today we will look at the changes to other immigration categories in the Immigration Rule Changes Statement
The requirement for continuous residence of 10 years has been revised to exclude short-term stays on visas from being counted towards achieving permanent residency
People who have been legally resident in the UK for 10 years, also known as 'Long Residence', are eligible to apply for Indefinite Leave to Remain, also known as UK Permanent Residence or UK Green Card.
Ten years of continuous lawful residence means the applicant has resided in the UK uninterruptedly for the last ten years on an authorized visa. Applicants may hold a combination of different types of Visas of varying lengths of time, including student visas, business visas and various short-term visitor visas.
However, this Immigration Rule Change Statement removes the eligibility of various short-term visas and some residence situations to count towards ten-year permanent residence.
The specific types and circumstances of the disqualified visas are as follows:
- Short-term Tourist Visitor Visa
- Short-term (English) Study Visitor Visa
- Seasonal Temporary Worker Visa
- EA stay during the corona outbreak
- Staying during Immigration Bail
Immigration Bail is a procedure used when a person is at risk of imprisonment because of their immigration status, mainly for visa overstays or asylum seekers whose appeal rights have been exhausted.
It means after 13 April, ten years of permanent residence with any of the above residence conditions will have to be recalculated.
Contact us immediately so we can help you prepare your documents and submit your application as soon as possible before the new policy comes into effect if you are in any of these situations and are about to meet the 10-year permanent residence requirement.
The Tech Nation will cease operation, and the list of certified agencies for the global talent visa has updated
In the previous article, we mentioned that the immigration department addressed the list of sponsors for the Innovator Founder Visa. This change will also apply to The Global Talent Visa.
As a Visa category for the admission of high-caliber talent, the Global Talent Visa requires very professional qualifications from applicants.
To be eligible for this Visa, applicants need to have a proven track record of winning prestigious awards in the industry or an endorsement from a professional accreditation body in their field.
The list of accredited sponsors that can approve endorsements to Global Talent Visa applicants after 13 April 2023 will also have an update.
The certification body has announced new changes in tech Nation, a technology certification body for digital technology (fintech, gaming, cybersecurity, artificial intelligence) talent.
In January 2023, the UK media reported the Tech Nation had lost its government funding, leading to Tech Nation ceasing operations on 31 March 2023.
Tech Nation is a government -funded organization dedicated to facilitating the scaling of the UK tech ecosystem. Over the past decade, Tech Nation has helped grow and scale over 5000 startups, including Revolut, Monzo, Ocado, Skyscanner, Delivery and many more.
Tech nation is also one of the certifying bodies for the Global Talent Visa, certifying and helping the UK government bring in hundreds of talented individuals in the digital technology sector.
The new immigration rule change statement does not specify how the immigration Service will process applications for Global Talent Visas that have been or will be certified by Tech Nation.
However, Tech Nation has confirmed that they will continue to process applications already submitted for certification as usual after 31 March in the absence of a published alternative accreditation.
Chan Neill Solicitors can advise digital technology talent applicants of the visa pathways that are still available and find alternatives on a client-by-client basis. If you have any questions, contact our immigration team.
Personal Injury Claims: How Our Law Firm Can Help You Seek Justice and Compensation
Personal Injury Claims: How Our Law Firm Can Help You Seek Justice and Compensation
Suffering a personal injury can be a life-altering event, leaving you with physical pain, emotional distress, and financial burdens. At Chan Neill Solicitors, we understand the challenges you face and provide legal support to help you navigate the complexities of personal injury claims. In this article, we will explore 5 main steps to obtaining the compensation you deserve.
Comprehensive Legal Guidance
Our experienced team of personal injury solicitors are well-versed in the complexity of personal injury law. We will carefully evaluate your case, analyse the evidence, and provide you with an honest assessment of your legal options. With our guidance, you will be given options on how to proceed with the case.
Investigation and Gathering Evidence
To build a strong personal injury case, it is crucial to gather evidence. Our dedicated legal team will conduct a thorough investigation, collecting medical records, accident reports, witness statements, and any other relevant evidence. We will diligently work to establish liability and prove the extent of your damages.
Negotiating with Insurance Companies
Dealing with insurance companies can be a daunting task. Our skilled solicitors will handle all communication and negotiations on your behalf, ensuring your rights are protected and you will receive fair compensation. We will advocate for your best interests and fight against any attempts to undervalue or deny your claim.
Expertise in Litigation
We strive to achieve favourable settlements through negotiation. We will evaluate and if necessary, we prepare to take your case to court. Our solicitors possess the skills and experience needed to effectively present your case before a judge. We will tirelessly support for your rights and fight for the maximum compensation you deserve.
Maximising Compensation
We understand the financial impact an injury can have on your life. Our team will work diligently to accurately calculate your damages, including medical expenses, lost wages, rehabilitation costs, pain and suffering, and future financial implications. We are committed to maximising your compensation to help you rebuild your life and secure your future.
At Chan Neill Solicitors, we believe every personal injury victim deserves justice and fair compensation for their losses. Our law firm provides comprehensive legal assistance, guiding you through the personal injury claims process, and fighting relentlessly on your behalf. If you or your loved one has suffered a personal injury, contact our team today for a confidential consultation. Let us help you navigate the legal procedure, seek the justice you deserve, and rebuild your life after a personal injury.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified personal injury solicitor at Chan Neill Solicitors for specific guidance regarding your case.
What Is Pre-nuptial Agreements?
A pre-nuptial agreement (“Pre-nup”) is a legal agreement made between two parties before they get married. Usually, the agreement specifies how the couple wish to split their assets in the event of separation or divorce.
You can also use a Pre-nup if you are planning to enter into civil partnership – although they are often referred to as pre-registration agreements.
Should you get a Pre-nup?
It is very common to think that a Pre-nup is just for wealthy people, such as business people or celebrities who wish to protect their assets. Such an agreement can make sense when one half of the couple has significantly more assets than the other, he/she stands to lose more than the other in an equal split divorce settlement.
However, in the case where neither of the couple have significant fortunes before getting married, they could still wish for a Pre-nup if either / both of them is / are expecting significant further earnings.
Furthermore, should you anticipate receiving gifts of large value (for example, a property gifted by your parents) or there is an inheritance to protect before the marriage, it may be a good idea to consider making a Pre-nup.
Is Pre-nup binding in the UK?
Short answer, no.
Pre-nup is not legally binding, which means that in an application for financial remedy, the court would have absolute discretion ( based on needs and contribution to the marriage ) to decide how to distribute the parties’ assets regardless of the contents of the Pre-nup.
However, if the agreement has been properly drafted, the court will give appropriate weight to it and the parties intentions when assessing an application for financial remedy. If a Pre-nup is drafted properly and no details of assets are left out by either party, it is often the case the court will accept all the terms of the Pre-nup that the party agreed to. To be more precise, the court is more likely to uphold a Pre-nup that is freely entered into by both parties with a full appreciation of its implications and all assets and monies are listed fairly.
Pros of a Pre-nup
It is quite self-explanatory that one of the biggest pros of getting a Prenup is to protect your assets that you have now or will have in the future.
Furthermore, in the case that your partner has significant debts (or likely to incur significant debt in the future), a Pre-nup could be used to protect your assets from being used to satisfy those debts.
It would incur some legal fees for solicitors to draft and advise on a Pre-nup. However, in an unfortunate and unpleasant divorce, a Pre-nup could save you significant stress and further expense, if both parties adhere to the terms of the prenup, during separation and divorce.
In addition, it could be you have concerns that your partner may be marrying you due to your wealth. If your partner agrees to enter into a Prenup with you that leaves you both with fair and reasonable financial terms, this may actually it ease your mind and strengthen the bonds of trust as you enter marriage.
Cons of a Pre-nup
As mentioned above, it is not legally binding, but persuasive to a court.
Also, trying to negotiate the terms of a Pre-nup may be awkward with your partner. It may be something they are unwilling to discuss or enter. It is always best to be open about the reasons for suggesting same. This may still cause a barrier between you.
Additionally, it could be the case that it is the parents of the economically stronger party pushing the couple into making a Pre-nup. A Pre-nup can end up reflecting the parents' wishes rather than the couple's wishes. In this regard, the behaviour that amounts to duress and undue influence may result in little (or no) weight being placed on the Pre-nup in any future financial remedy proceedings. To safe guard against this risk, usually both parties should have separate lawyers representing them.
The future of Pre-nup
On 27 February 2014, the Law Commission published a report recommending the introduction of qualifying nuptial agreements that will limit the court's powers to make financial orders on divorce or dissolution. The court would be prevented from making orders inconsistent with the terms of a qualifying nuptial agreement unless in exceptional circumstance.
To be a qualifying nuptial agreement, an agreement must meet the following criteria:
- It must be contractually valid;
- It must be validly executed as a deed and contain a "relevant statement";
- It must not have been made within the 28 days immediately before the wedding or civil partnership ceremony;
- Both parties to the agreement must have received disclosure of material information about the other party's situation when they entered into the agreement; and
- Both parties must have received legal advice at the time they entered into the agreement.
This is a recommendation to the judiciary, but the intention is clear that unless the Pre-nup is unreasonable and unfair to one of the parties that entered it, the court should be persuaded that these terms agreed to are sanctioned.
Please contact our experienced family law team if you have any questions about pre-nuptial agreements or matrimonial-related enquiries. Our team speak several languages beside English including Mandarin Chinese, Cantonese, Portuguese, Russian, Gujarati and Korean.
How Can A Leaseholder Extend Their Lease?
There are two ways that a Leaseholder (Tenant) can extend their lease:
1) Privately Agreed (Informal) Route
2) Statutory (Formal) Route
Private (Informal) Route
The Tenant could approach their Freeholder (Landlord) to request whether the Landlord would be agreeable to negotiate a lease extension. Although this private route could save time and money however, there is no obligation on the Landlord to respond or agree to extend the lease.
If in the unfortunate events that the negotiation discussion between the Landlord and Tenant come to an end without any successful conclusion then the Tenant could consider whether they are able to extend the lease under the Statutory Route.
It is important to note that privately agreed lease extension requires lender’s permission. Therefore, if there is a mortgage registered on the Tenant’s property then the Tenant must obtain the lender’s consent.
Statutory (Formal) Route
A Tenant can apply to extend their Lease by the Statutory Route provided that the Tenant is eligible (such as owned a long lease for the past two years).
The Tenant would need to ensure that they have their finances in place in order to commence the Statutory Route. This is because the Tenant would need to pay for the following:
- Surveyor’s fees to value to a new lease and negotiations etc
- a premium to the Landlord to extend the Lease (once a premium has been agreed)
- Once the Tenant serves a notice to request for a new lease then the Tenant will be liable for the Landlord’s costs
- Landlord’s fees to extend lease
- Solicitors costs etc
The Statutory Route has strict timelines that the Tenant must comply with. If the Tenant fails to comply with the timescales then unfortunately the Tenant would have to wait 12 months before starting the Statutory Route again. There is no requirement for lenders consent under the statutory lease extension route.
Terms of the New Lease
Under the Statutory Rules, the Terms of the New Lease are as follows:
- Peppercorn ground rent (£0 ground rent) for the whole of the term
- 90 years extension plus the length of time left on the current lease
- Terms must be the same except for minor modification and exclusions allowed by law.
- Premium payable for the new lease
S42 Notice – Tenant’s request for a new lease
Before a Tenant can serve a S42 notice, the Tenant would need to identify who the competent Landlord is. The Tenant should apply to the Land Registry to find out who owns the Freehold Property and check who they pay their service charges and ground rent to.
If a Tenant pays ground rent and or services charges to a management company then all parties (Landlord and Management Company as well as any other relevant person) should be served with a copy of the S42 Notice.
The S42 Notice must contain certain information in order for it to be valid. The Tenant must give the Landlord at least two months to give their counter-notice.
The Tenant should ensure that the S42 notice is protected by way of registration against the competent Landlord’s Title and also of any intermediate Landlord. Failing to protect the initial notice will not bind a purchase of any reversionary interest in the property and therefore, the Tenant will have to start the process again.
S45 Notice – Landlord’s Counter Notice
The Landlord must serve their counter-notice within the 2 months period. The Counter-notice must state one of the following:
- Agree to the Tenant’s right to a new lease and accept the terms and proposed or propose different terms
- Reject to the Tenant’s right to a new lease and explain their reason for this.It would then be up to the Court to decide whether the Tenant has the right
- Claim that the Landlord has the right to redevelop the land (appliable only in certain circumstances)
If the Landlord has served a Counter-notice then it would be down to the parties surveyors to negotiate on a premium. If in the unfortunate event that an premium cannot be agreed after the first two moths of negations, then both parties can apply to the Tribunal for an independent decision to be made. The application must be made within 6 months from the Landlord’s counter-notice.
Once a premium has been agreed then the parties legal representatives can negotiate on the terms of the lease. There are strict timelines on when the new lease terms must be agreed and when a claim must be made to the Tribunal.
In the event that the Landlord fails to serve a counter-notice, then the Tenant has the right to apply to the Court to seek an order for the grant of the new lease (on the terms as set out in the S42 Notice). This application must be made within 6 month from the date in which the counter-notice was required to be served.
If you are thinking of extending your lease or have any queries, please contact us. Our experienced property solicitors and litigation team have dealt with different types of lease extension.
Is Your Tenant In Rent Arrears?
Occasionally Landlords will have Tenants who complies with the terms of the tenancy agreement and pay the rent on time with no issues.
However, in the unfortunate event that a Landlord has to deal with a Tenant who defaults on the rent payments then the Landlord may wish to consider the options available to them. Whilst Landlords tend to own the property that they rent out a Landlord cannot simply kick the Tenant out, there is a process that the Landlord need to follow.
Enter in to Negotiation discussions with the Tenant
A Landlord should try and speak to their Tenant if the Tenant is in breach of any of the terms of the tenancy. Any verbal communication should be followed up in writing to ensure that there was no misunderstand.
If the Tenant is in rental arrears then the Landlord may consider whether they would be agreeable to a repayment plan or seek the Tenant’s consent to deduct the outstanding rent from any deposit that is being held in a deposit scheme. Sometimes communication with Tenants does not always work and therefore, this would leave the Landlord with the only option but to issue court proceedings to regain possession of the property.
Monetary Claim
The Landlord could issue a money claim against the Tenant for the rental arrears. There are set proceedings that the Landlord must follow i.e. complying with the pre-action protocol and sending a letter before action.
If the Tenant fails to respond to the letter before action then the Landlord can then issue a monetary claim against the Tenant.
Eviction Claim
There is a 3 stage process to eviction claims for both Section 8 (breach of tenancy) and S21 Route (possession and money judgment / possession only) which are set out below:
Section 8 Route - breach of terms of the tenancy
- Notice
Where a Tenant is in breach of the terms of the Tenancy or in rental arrears then the Landlord can prepare a Section 8 Notice giving the Tenant a certain length of time to rectify that breach.
- Issue Court Proceedings
If the tenant fails to pay the arrears or rectify the breach then the Landlord can issue possession proceedings.
The Landlord have the option to issue proceedings online via possession claims online if the breach is only in relation to rent arrears. There is a court fee of £355. The court will issue the claim and if the Landlord has provided the Tenants address within the claim form then the Court will serve the claim on the Tenants. The Tenant will have 14 days to respond to the claim. The Court will also list the matter down for a hearing.
Section 21 Route - no fault possession
- Notice
Landlord must give the Tenant at least 2 months’ notice to vacate. This route has become stricter in a sense that there are a number of obligations on a Landlord that must be fulfilled in order to use this route.
- Issue proceedings
There are two options which a Landlord could take which are as follows:
- Standard Route: The process is similar to issuing proceedings under the Section 8 route as a hearing date will be listed. A Landlord can use this route for possession and also a monetary judgment for the rental arrears.
- Accelerated Proceedings Route: this route can only be used if the tenancy agreement is in writing and all the Landlord's requirements are fulfilled (i.e protecting deposit, serving EPC certificate, served Gas Safety, How to rent booklet on the Tenant). The Accelerated Route is only available for possession only. This means that the Accelerated Route cannot be used if the Landlord wants to seek possession and also a monetary judgment for the rental arrears.
- Instruct Bailiffs
Once an Order for Possession has been granted (regardless whether it has been made under the Section 8 Route or the Section 21 Route), the Landlord can instruct County Court Bailiffs or apply to the County Court to obtain permission to instruct High Court Enforcement Officers. The Bailiffs will then arrange an appointment date to attend the property to lawfully evict the Tenant.
If you are dealing with a "difficult" tenant or facing rent arrears, please contact our experienced litigation team.