www.legalitum.co.uk

What is an assignment ?

An assignment is the legal word for transferring a legal right from one person to another. One form of assignment is the assignment of a contract. The benefit but not the burden (transferring of a burden is known as novation in legal terms) of a contract can be assigned, although in practical terms the assignee (transferee) and the 3^rd party who originally contracted with the assignor (transferor) tend to co-operate to make the contract work, since both parties to a contract will generally have benefits and burdens.

What is the effect of  a contractual assignment ?

After assignment, the assignee is entitled to the benefit of the contract and to bring proceedings against the other contracting party to enforce its rights. It is important to note that an assignment only transfers existing rights and does not create any new rights. Additionally, the assignee will take over the contract as it was at the time of assignment and thus any benefits obtained will be subject to any pre-existing reduction of possible contractual benefits. A good example might be the assignment of a debt where the debtor has a claim for a set-off against that debt.

As regards the assignor’s position on a contract, it is very important to understand that he/she/they will remain liable after the assignment to perform any obligations in the contract that remain to be fulfilled. In practice, the assignee generally deals with such tasks but nevertheless the assignor should be aware of potential liabilities and perhaps specifically obtain a release for the other contracting party or at the very least to seek a full indemnity from the assignee in relation to any breach of contract or failure to perform by the assignee.

For general legal advice, it is always important to get solid advice from good solicitors.

Big changes are afoot in the legal services market and many law firms need to adapt.

In our view (comments welcome) one of the biggest challenges for small and medium size law firms is to take control of their own destiny and realise that a law firm is a business. This seems an obvious point to make, but still seems to be overlooked by many practices who believe usual business rules do not apply to them.

A good example of the above relates to marketing. Many small and medium law firms either do very little marketing or do not plan marketing, ignoring the fact that marketing is a “process not an event”. Many law firms think that there has to be an immediate pay off, they would rather pay for a referral because this does not involve that word, “risk”, than to invest in and create their own marketing strategy which does not involve paying brokers or intermediaries a fee for doing the marketing for them. Lawyers seem to forget that in paying brokers, they are paying a premium and in fact damaging their own market position and strengthening the power of the intermediaries, upon whom they become increasingly dependent. This is particularly the case in terms of online marketing.

Well run businesses in a myriad of other sectors generally :-

1. spend between 3-10% of turnover on marketing consistently

2. take control of their own destiny

3. Carefully plan and measure marketing activity

4. Have a strategy

5. Accept that marketing, like all business issues, carries risk but also reward.

6. Take marketing seriously

Unless and until many more legal practices behave like other businesses, we have little sympathy.

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Mediation Services

Mediation – a modern way of resolving disputes

Mediation is a part of ADR (Alternate Dispute Resolution) that has more recently been embraced by the legal community as a quick, cheap and amicable way of resolving disputes.

Mediation defined

Mediation is type of negotiation procedure where a neutral third party (the mediator) aims to find common ground between the parties so a settlement can be reached.  For mediation to work, both parties have to be willing to negotiate and be legally bound by any settlement that is reached, although it is possible to enter into negotiations on a “without prejudice” basis such that the parties agree that the content of the negotiations can be relied on in court and have a bearing on litigation.

The process in detail

The parties will agree to meet at a certain time and place.  Both sides will then make a statement outlining their position after the mediator confirms that both parties are in a position to negotiate.  The mediator will then talk to both parties individually and in private in order to establish what the respective parties want and whether there is any common ground.  Both parties will then meet again and the mediator will facilitate negotiations by emphasising common ground and dispelling any antagonism that the respective parties may hold for one another.

What mediation is used for

Mediation can be used for a wide-range of disputes including:

• Contractual disputes
• Landlord/tenant disputes
• Disputes with employees
• Intellectual property disputes
• Disputes between shareholders and/or directors
• Partnership disputes
• Family business disputes
• Nuisance disputes

This is an non-exhaustive list.  You should bear in mind that mediation is suitable for a wide-range of disputes, even ones that are not strictly legal in nature; it is a very flexible procedure.

Paternity Leave entitlements and rates

The Additional Paternity Leave Regulations 2010 apply to parents and adoptive parents of children born after 3 April 2011 and entitle fathers to up to 26 weeks’ paternity leave, which leave can commence from 20 weeks before the expected date of birth expiring on the first anniversary of that date. Employers will need to update employment policies and procedures in response to the changes. Also note that from 11th April 2011, statutory maternity, paternity and adoption pay entitlements will increase from £124.88 to £128.73 per week, with the weekly earnings threshold increasing from £97 to £102.

Bribery Act – watered down version but in force on 1^st July 2011

Finally, the Bribery Act debacle seems to have moved on to the next stage.  The new guidelines offer a more sensible and altogether more proportionate view on this important topic.

It seems that the message from the UK government, broadly speaking, is that if you have a small or medium sized business, save for blatantly criminal attempts at bribery, there is little to worry about. The new rules reinforce that it is big businesses, particularly those who undertake business internationally, who should remain vigilant and concerned. This is especially because, on a worldwide basis, there is clearly a trend towards governments being seen to “clean up” the actions of big business and the potential fines and other sanctions where enforcement action is taken, generally run into the millions of the relevant currency, so there is a lot at stake.

Following on from the above, the UK  Ministry of Justice  has emphasised in the latest guidance that minimal procedures will be required for small and medium sized businesses who should effectively adopt a common sense approach, whilst still bearing in mind that the Act does apply to them also. Proportionality is the key consideration.

What has not been “watered down” in the new guidelines is the need for all businesses to be vigilant about vicarious liability for employees or agents involved in bribery. In those circumstances the Directors of the business may face a fine or even a prison term.

The revised guidance contains 6 principles for bribery prevention :-

1. Proportionate procedures

2. Top level commitment

3. Risk assessment

4. Due diligence

5. Communication

6. Monitoring and review

Trespass law in the Uk covers a variety of issues and is governed by the law of Tort. Although the law encompasses trespass against the person and trespass against chattels, i.e. personal possessions, it is trespass against property that is considered in this article.

A person who owns property is, to a certain degree, entitled to defend their property against intruders. Whilst this may have once meant that extreme measures could be taken to prevent trespass, the actions that can be taken under law are now more circumscribed. The erection of fences and walls to secure a boundary are permitted, although height restrictions do apply. Also considered reasonable is the fitting of deadbolts and alarms, but actions beyond this may fall foul of other laws pertaining to the rights of the intruder.

An individual who has been found trespassing can be legally ejected from the property, providing that the amount of force used to do so is deemed by the courts to be reasonable. Any amount of force exceeding that which is commonly regarded as reasonable could result in the perpetrator, usually the property owner, being held liable for assault or similar. The old maxim that an Englishman’s home is his castle does not give him the right to inflict excessive force. The first step should always be to request that the intruder leaves the area, either verbally or in writing. If the trespass continues once the offender is made aware of the trespass, further action can be taken, always bearing in mind the rights of the intruder.

Furthermore, the rights of the intruder should always be borne in mind when securing a property against trespass. It would be illegal, for example, for a landowner to set up traps as a deterrent to would-be intruders. Similarly, whilst the erection of walls around the property might be acceptable, setting shards of broken glass around the top is not. A low voltage fence would be within the realms of acceptable protection, although the landowner would be expected to clearly display warning signs for all approaching persons to see.

There have been several instances in recent years regarding trespass onto industrial sites, where the intruders have fallen through roofing or glass panels and have subsequently successfully sued the company whose property they were trespassing on. Although the company were unaware of the trespasser’s presence, they had a duty of care to the intruder to the extent that they should have maintained their property in a reasonable state or repair. Where an injury has occurred as a result of neglect, the fact that the intruder was uninvited is not always relevant.

Trespass as it applies to land barriers is a little less confusing. One of the more common forms of trespass relates to garden plants and garden borders. If a neighbour has a large shrub or tree that either blocks light or physically intrudes onto another’s property this is a form of trespass. In this instance, the neighbour whose land is being encroached upon is legally entitled to saw off branches of the offending plant. Whilst there is no need to ask the permission of the offending neighbour to do this, the sawn-off branches must be returned to their owner, as technically speaking, they belong to him/her. Failure to give back the trespassing foliage may result in a charge of criminal damage.

As far as garden borders go, it is quite easy for a fence, garage or similar structure to be erected that intrudes slightly onto the adjacent property. It is not necessarily an active act of trespass. In these cases, it is the responsibility of the landowner that has been trespassed against to inform their neighbour of the intrusion and give reasonable time for the problem to be rectified. It is not acceptable to take back land by pulling bricks out of a structure or pushing fences over. It may even be necessary to show the neighbour or their legal representative the deeds to the property to confirm a legal right to request the removal of the offending structure. If a landowner chose to say nothing in regard to the encroachment, preferring to keep the status quo in neighbourly relations, they have, by law, a maximum of seven years to challenge the intrusion. Failure to challenge within seven years results in the land becoming the neighbour’s property by way of estoppel. Failure to be aware of the trespass seven years earlier does not entitle a person to a longer period of time; the law expects people to be mindful of their property

Restrictive covenants explained

Some properties have restrictive covenants imposed on them, usually by the seller or developer, which places a restriction on something being done, or not done, at the property. These agreements are legally binding and usually run with the land, so they are enforced on all subsequent buyers of the property and registered along with the title or lease.

Covenants can impose a wide range of restrictions on the owners of the property, from things like the types of materials any rebuilding or extensions should be made of to who is allowed to live in the property. Most commonly, these are placed upon brand new properties by the house builders in order to keep their new developments looking a certain way for as long as they can.

Other places where restrictive covenants may be found is on historical buildings or on houses where the vendor has retained part of the land or an adjacent building and wishes to protect his lifestyle. The most common restrictive covenants include not causing a nuisance to your neighbour, not keeping animals on the land apart from domestic pets, not using the building for a business and not to make alterations to the property without consulting the original developer.

The latter restrictive covenant is one which crops up with alarming regularity and which homeowners are often not aware of until they come to plan an extension or make an external modification to the property. If there is a clause in the sales contract that requests permission, then any external alteration, such as painting the door or changing a window will have to be approved by the developer.

In rare cases, the covenant states there are to be no modifications at all, so check the wording of your contract with care or instruct a competent conveyancer to do so. It is up to the purchaser to ensure the contract has been fully read and understood prior to signing the transfer, as there is no negotiating power after the fact.

If you find you have a restrictive covenant placed upon your property which is impacting on your lifestyle or plans for your home, then there are sometimes ways around the restriction. If you think you have already breached a covenant that you were not previously aware of, then taking out a Restrictive Covenant Insurance Policy, sometimes referred to as Restrictive Covenant Indemnity insurance will ensure you are not left out of pocket if someone decides to enforce the deed.

These insurance policies last in perpetuity and can often be passed on to future owners of the property, a definite plus if you are trying to sell the house and the restrictive covenant is of concern to your potential buyer. The policy will pay out the cost of any legal expenses or devaluation of the property in the event that you, or a future owner, are required to defend an attempt to enforce the covenant, up to the limit of indemnity. With this in mind, it is worth increasing the level of cover ahead of inflation each year to ensure 100% of any costs will be covered.

Another option if you think you have already breached a covenant is to track down the developer who originally placed the covenant on the property and ask for retrospective consent. This can be a costly process, as the developer has a right to charge a fee for administration and a compensation amount for the breaking of the original covenant. It can also take a while to sort out, particularly if the original developer has gone bankrupt and your conveyancer needs to find the successor in title.

In some cases, the original developer will have gone out of business and will not have appointed a successor in title, in which case the covenant is no longer enforceable. The only exception to this rule is if there was a clause in the transfer allowing your neighbours to enforce the covenant, termed a mutually enforceable covenant, which your conveyancer will be able to check for you.

It may be possible to get the covenant removed entirely via contacting the original developer and requesting that they enter into a deed of variation. In most cases, this action is not worth the time and expense it will cost to achieve the desired result unless the covenant in question completely prohibits the action you have taken.

There are many other legal issues surrounding the complex area of restrictive covenants so it is best to take professional advice rather than trying to tackle problems with them on your own.

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