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There is always great positivity surrounding International Women’s Day. It happened yesterday (Sunday 8 March 2020) but throughout March it is difficult to scroll through various Social Media sites without coming across a motivational, supportive post about female empowerment which has always been something close to my heart. This got me thinking about what International Women’s Day means to me and led me to reflect on what I have achieved so far, with the support of my colleagues here at Legal Studio, my family and my friends.

I joined Legal Studio as a Paralegal in September 2018 and was delighted to accept a training contract in the Summer of 2019. From the outset, Legal Studio always had an interest in my ultimate goals and were keen to encourage me to achieve these. As most of us will know, 1920 was the year that women were first able to practice law. Therefore, I feel incredibly grateful to be carrying out my training this year in particular at a firm which actively promotes you to be the best you can be.

I feel proud to work alongside such strong, supportive women each day and the dynamic in the office is unmatched. There is no hierarchy system and I very much believe that everyone is treated equal here. If I have an idea, I am listened to and if I want to do something which I feel will benefit the firm then Legal Studio will help me and see it through. For example, I have recently been appointed Social Media exec which is a new challenge I am finding both exciting and rewarding! 

In this area of work, it is refreshing to work at a firm where your fellow colleagues have time for you and will go out of their way to make time to actually know you. Working in an environment which recognises your ambition and where you feel respected by what you do, not who you are, is what International Women’s Day means to me.
2020 46 09 277
New ICO guidance published on the time limits for responding to data subject access requests (DSARs).

The ICO’s revised guidance confirms that where a data controller asks the individual making the subject access request for additional information in order to enable them to deal with the request effectively the one-month time period for compliance will no longer be paused until after the controller receives the requested information. The amended guidance also confirms that the extended timescale for responding to complex or multiple DSARs will similarly also no longer be paused.

These changes mean that the new timescale for responding to subject access requests will run from the date that the DSAR is received or, if later, the date on which proof of an individual’s identification has been received. This constitutes an important change from the previous position which stated that the time period for compliance would be paused until the controller was in receipt of any additional information that had been sought from the individual.

The ICO’s revised Right of Access guidance confirms that where additional information is requested from the data subject by the controller, to enable it to properly respond to a subject access request, then:

“…..this does not affect the timescale for responding – you must still respond to their request within one month. You may be able to extend the time limit by two months if the request is complex or the individual has made a number of requests”.

Controllers will likely be concerned that any delay on the data subject’s part in providing any additional information that has reasonably been requested will have an adverse impact upon their ability to provide all of the necessary data within the required timescale. For this reason, the use of subject access request forms may become more common as controllers take steps to try and limit the impact of the ICO’s changes by encouraging data subjects to provide relevant information at the same time that the subject access request is submitted.

Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various legal services that we provide.
 
 
2020 23 28 289

For the neighbours involved, boundary disputes can be expensive and stressful. To try and make the process easier, the Property Litigation Association has published a ‘Protocol for Disputes between Neighbours about the Location of their Boundary’, known as the ‘Boundary Disputes Protocol’.

The Protocol applies to both residential and commercial properties. It aims to encourage neighbours to exchange information in a timely manner, minimising the potential for dispute, saving time, and keeping costs to a minimum.

The Protocol is currently voluntary, although we suspect it will become a formal pre-action protocol under CPR in due course.In the meantime Judges will no doubt be critical of parties who don’t engage with it. 

As soon as a boundary dispute arises, parties can agree to adopt the Protocol.

The date in which this has been agreed is known as the ‘Start Date’.

2 weeks from the Start Date, the parties must provide each other with official copies of the Land Registry title(s) for their own property and seek to agree whether any determined boundary exists. If there is, no further action will be required. 

If there is no resolution from exchanging the official copies, the parties should exchange all of the information they have in their possession within 4 weeks from the Start Date, including: 

  • Past conveyances;
  • Conveyances referred to in the official copies; and
  • Photographs of each property showing the disputed boundary
Within 7 weeks from the Start Date, the parties need to determine whether they have the first conveyance (when the properties were split from a larger title and passed into separate ownership). If they do not have this, they should discuss their options for finding the first conveyance. The parties should then seek to agree one of the following options:
  • An adverse possession/ boundary agreement claim is made; or
  • To proceed to investigate the paper title position, the adverse possession claim/ boundary agreement or both. 

Within 8 weeks from the Start Date the parties should discuss whether they wish to enter into negotiations or mediation or proceed with the next steps of the protocol. 

If a first conveyance has been identified(this is often not the case in our experience),then each party must determine the evidence they have in terms of showing what features existed on the ground at the date when the first conveyance occurred. In addition, any proposed witnesses of fact need to be identified within 3 weeks of the first conveyance being identified. 

If the first conveyance provides accurate plans and the parties cannot reach an agreement, a an expert surveyor will need to be instructed. They may visit the property and produce a plan of the physical features existing on the ground at the date of inspection. In some instances, a joint expert may be appropriate for this. However, in certain cases (such as those involving development proposals) it may be appropriate for each party to instruct their own expert. Instructions should be given within 5 weeks of the date when the first conveyance is identified. Short reports should be exchanged within 4 weeks after instructions are provided. Following this, within 2 weeks the experts should have a discussion in order to agree a short summary, to be provided to both parties. 

Within 4 weeks of the Start Date if either party believes that they may have a claim for adverse possession, they must inform the other party, setting out the basis of their claim and the following information: 

  • Description or plan of the area claiming to be in their possession;
  • The period during which it is claimed that the land has been in possession; and
  • Whether the claim is an “old-style” claim or “new-style” claim 

If the other party wishes to oppose the claim, they must provide an explanation for the opposition within 6 weeks of the Start Date. 

Within 14 weeks of the Start Date each party should provide the other party with all relevant documentary evidence and also identify their witnesses of fact will be. Documentary evidence may include: 

  • Photographs (including aerial photographs); and
  • Receipts for work carried out to the boundary. 

Where the interpretation of plans or photographs is not agreed it may be necessary to instruct an expert, which should be done within 16 weeks of the Start Date. The experts or experts should provide a report within 4 weeks of their appointment; once reports are exchanged, both experts should have a discussion within 2 weeks to provide a short summary to both parties. 

The parties should meet again within 2 weeks of the date on which the last steps set out above is taken. Ideally, the meeting should take place at the location of the disputed boundary with the expert(s). The discussions should be carried out “without prejudice” so they cannot be relied upon should legal proceedings arise. 

If the parties are unable to reach an agreement, they may consider alternative dispute resolution before proceeding with litigation. Alternative options include:

  • Arbitration;
  • Expert determination by an independent third party; or
  • Mediation 

If the parties reach an agreement with reference to a line on the ground, the line needs to be marked out by stakes. It is also important to mark the side of the stake on which the boundary lies. If the parties reach an agreement by reference to a plan, experts should be instructed to transfer the line on the plan onto the ground and place stakes to clearly outline the boundary. 

A written document setting out what has been agreed will need to be drafted, ideally by a solicitor, with a plan attached. Each party should then apply to the Land Registry to record the agreement against their titles. 

 

2018 49 07 158
 
The recent case of Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) has provided clarity for landowners suffering from repeat trespass on their property, have no idea who the trespassers are and fear further trespass.

The Claimant was the owner of the former Tetley Brewery site in Leeds. There had been a series of incidents of trespass between 2011 and 2018. On the most recent occasion in 2018, the trespassers triggered alarms and held a number of illegal raves in empty buildings on the site. The Claimant spent £25,000 cleaning up the mess.

Given the risk of fly-tipping (well known with such sites) as well as further illegal raves, the Claimant wanted to take steps to take decisive steps to prevent further trespass. Despite having fenced the site, installing alarms and paying for a weekly security patrol, determined trespassers were still gaining access. The Claimant applied for an injunction against unknown future trespassers so that they could call upon High Court Enforcement Officers and, if necessary, the police to quickly remove trespassers should there be a any further trespass.

It is not unusual not to know the identity of trespassers. The CPR provides for 3 scenarios where an unknown persons or persons could become a party in trespass proceedings:
  • Where a particular person was identified (e.g. in a photograph) but their name is not known.
  • Where a person was part of a fluctuating class or group or persons some of which were known.
  • Where the identity of the Defendant is defined by a likely prospective acts of infringement of the order the court is being invited to make
The Tetley Brewery case fell within the final category, the prospective acts including further illegal raves and fly-tipping.

The court gave useful guidance as what is required to obtain such an injunction and applied a two stage test:
  1. Is there a strong probability that, unless restrained by an injunctions, the Defendant will act on breach of the Claimant's right?
  2. If the Defendant has acted in breach of the Claimant's rights, whether the harm would be so grave that damages are no an adequate remedy
The test was made and the court granted the injunction taking into account the following;
  • The steps taken by the Claimant to secure the land
  • The brazen attitude of the trespasser and anticipated future trespassers
  • That there had been incidents of trespass of 2011, 2016, 2017, 2018
  • The timeframe between the application and the threatened further trespass
  • The risk to the lives of the trespassers given the unsafe site
  • The cost to the Claimant of removing the trespassers
The case shows that the courts will be very open to granting broad and extensive injunctions binding unknown future trespassers. This is good news for landowners.
 
2018 26 07 158
A multi-disciplinary team of lawyers at law firm Legal Studio, led by property litigation specialist Matt Pugh and supported by leading silk Tim Ward QC of Monckton Chambers and the highly rated junior Andy Creer of Hardwicke, recently acted for Red & White Services Ltd  in the widely reported case Red and White Services Ltd v Phil Anslow Ltd and Anor [2018] EWHC 1699 (Ch).  

The case concerned a dispute over the use of bus bays at Cwmbran Bus Station, which has since been resolved, and involved complex and novel issues of competition law and property law.

The reported decision concerns the setting of cost budgets by Mr Justice Birss at a Costs and Case Management Conference in May 2018.  Directions had been agreed between the parties prior to the CCMC, but the issue of costs budgets was contentious.  The case was expected to involve complex expert evidence from economists, extensive disclosure, a substantial number of witnesses and a 10-day trial.  The Defendant’s budget totalled £288,000 including £103,000 of incurred costs, whereas the Claimants and the Third Party’s budgets were around £1.5m each, with the Claimant’s incurred costs around £100,000 and the Third Party’s around £350,000.  

Mr Justice’s Birss’ approach to budgets was somewhat unusual.  Rather than going through the budgets phase by phase (or indeed in any detail), he simply looked at the totals and took the view that both the Claimant’s budget and the Third Party’s budget totals were disproportionately high when compared to the subject matter of the dispute.  He also commented that the Defendant’s budget was unrealistically low and not a good guide but declined to comment as to whether that the Defendant had intentionally pitched its budget low as a tactic.  We submitted that they had.

In approaching proportionality, instead of setting phase totals, Birss J decided to allow the Claimant and the Third Party to spent up to a further £800,000 each and to allow those parties the flexibility as to whether they sought to cut costs on disclosure, expert evidence, witness evidence, the trial or a combination of those phases.  This may have been because at the time of the CCMC it would have been very difficult for the judge to make an informed decision as to whether, for example, an AI platform was required for e-disclosure.
 
2018 45 06 158
Today a number of changes related to property law have come into effect. These include: 
  • HMO licensing and regulations – properties will now require a HMO licence if there are five or more people in two or more separate households. This includes two storey households and one storey properties, removing the requirement that a licensable HMO must be three storeys. There are also new room size requirements.
 
  • Section 21 notices – sections 33 to 38 and 40 of the Deregulation Act 2015 (related to retaliatory eviction, prescribed forms, and compliance with prescribed legal requirements) will now apply to all tenancies, as opposed to tenancies commencing on or after 1 October 2015 as previously was the case. This could cause difficulties for landlords with older tenancies in obtaining possession.
 
  • Suspended possession order – there is now no requirement to make a separate part 83(2) application for permission for a warrant for breach of a suspended possession order where the breach is failure to pay rent and/or arrears instalments. 
 
  • Rogue landlord database – a local authority may place any person on the database who has been convicted of a banning order offence or has received a fine in respect of a banning order within the same 12 month period. 

The PLA’s boundary dispute protocol has recently also come into effect. We’ll be blogging about that shortly…
2018 40 01 164
 
The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 require compliance from 1st April 2018.
 
Do you know what they are?
Have you complied with them?
Do you risk facing financial penalties for non-compliance?
 

The Regulations apply to:

  • Domestic PR property which is legally required to have an EPC and which is let on an assured tenancy, regulated tenancy, or an agricultural tenancy; and,
  • Non-domestic PR property that has not been granted for:
  • A term certain not exceeding 6 months (unless a provision exists for renewing the term or extending it beyond 6 months, or, at the time it is granted, the tenant has been in occupation for a continuous period of more than 12 months); or,
  • A term certain of 99 years or more.
 

Unless subject to an exemption, the landlord of a property with EPS rating of less than E must not:

 
  • Grant a new tenancy of the property on or after 1st April 2018 (including any lease renewals, extensions or new lettings); or,
  • Continue to let the property on or after 1st April 2020 (domestic PR property) and on or after 1st April 2023 (non-domestic PR property).
 

Exemptions that will last 5 years and should be registered on the PRS Exemptions Register include:

 
  • Third party consent is refused or granted subject to conditions (e.g. from the local authority, current tenant, freeholder, planning or listed building consent); and,
  • Property devaluation (where the landlord has obtained a report from an independent surveyor who is on the Royal Institution of Chartered Surveyors and the measures would reduce the market value of the property, or the building it forms part of, by more than 5%).
 
There is also a temporary 6-month exemption when a landlord has only recently become a landlord. 

 

Enforcement authorities are:

 
  • The local authority for a domestic PR property; and,
  • A local weights and measures authority for non-domestic PR property.
 
They may serve a notice on the landlord imposing financial penalties. The authority may also publish details of the breach on the national PRS Exemptions Register.

 

Financial penalties (domestic):

  • Breach less than 3 months, <£2,000
  • Breach more than 3 months £2,000<
  • Registered false or misleading information on PRS Exemptions Register, <£1,000
  • Failed to comply with compliance notice <£2,000



Financial penalties (non-domestic):

  • Breach less than 3 months, <£5,000 or <10% of the rateable value of the property (whichever is greater) subject to a maximum of £50,000
  • Breach more than 3 months, <£10,000 or <20% of the rateable value of the property (whichever is greater) subject to a maximum of £150,000
  • Registered false or misleading information on PRS Exemptions Register, <£5,000
  • Failed to comply with compliance notice <£5,000
 
 
2018 00 06 59
Money laundering is a huge concern for UK law firms who are required to handle large sums of money.

Ensuring compliance, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 have transposed the Fourth EU Money Laundering Directive into UK law. 

In an effort to further prevent money laundering, Law firms are now required to:

• Conduct money laundering and terrorist financing risk assessments;
• Implement systems, policies, controls and procedures to address money laundering and terrorist financing risks;
• Apply policies procedures and controls across the firm’s group structure;
• Adopt appropriate internal controls;
• Provide training to staff;
• Comply with new due diligence requirements;
• Comply with requirements relating to politically exposed persons; and
• Keep records of data protection systems, policies and procedures.

The Legal Sector Affinity Group have released Anti-Money Laundering Guidance for the Legal Sector in order to explain the new requirements and help law firms understand and comply with the regulations. 
2018 25 03 159
A recent report featured on radio 4 suggested that only 8% of UK businesses will be GDPR compliant by the 25 May 2018 deadline.

Whilst this may be of some comfort to those who are not compliant, it will not be a defence should the Information Comissioner's Office (ICO) take an interest in your business.

As I write, you have two months to get compliant but even if you are not fully compliant by the deadline, you may find that ICO is somehwat more forgiving if you are travelling in the right direction.

In short, it's never too late to start on the path to compliance. A good place to start is to email or call us and book one of our interactive training sessions for your directors and senior staff.

We'll help you understand the issues and cut through the jargon in a way you can understand so that you can identify what needs to be done. We'll also conduct a "mini-audit" with your input as part of the session.

After your training we'll follow up with our views and proposals on where you stand and what you need to do to get compliant.

Call Matt Dowell now on 0113 247 3801 or Jodie Wildridge on 0113 357 3250 to book.
 
2018 01 20 47
 
The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 come into effect on 1 April 2018.
 
From that date, all landlords must ensure that their properties (both residential and commercial) must be at least For all new tenancies created from 1 April 2018, all landlords must ensure that their properties (both residential and commercial) must be at least an Energy Performance Certificate rating of ‘E’.
 
For all tenancies already existing before 1 April 2018, the requirement applies to all residential properties from 1 April 2020 and all commercial properties from 1 April 2023.
 
While there are limited exemptions to these requirements, it is important that all landlords start taking steps to get their properties into shape.

For help getting your properties into shape, contact our experts today.
 
2018 30 14 164

A boundary dispute often includes two parties fighting over a small strip of land, where neither party changes its standpoint and legal costs quickly increase due to their unwillingness to use ADR. When establishing a boundary, complex questions arise such as:
 

  • Is the boundary marked by a physical feature?
  • Is the boundary defined in legal documents?
  • Is the physical boundary followed exactly the same as the legal boundary?
  • Is there an agreement between the owners, a statute or legal presumption that defines the boundary?

These disputes can be notoriously complex and the final outcome can be uncertain. But there must be some other way to resolve this efficiently.

Now, there is.

A new Boundary Disputes Protocol has been created by the Property Litigation Association. The Protocol applies to both commercial and residential property within England and Wales and assumes that informal discussions have failed, and a more structured resolution is required. It is a FREE resource online for parties alongside relevant guidance.
 

What does the Protocol do?

There are a number of time limits and processes that the Protocol implements for parties in order to exchange information and resolve the dispute efficiently and consensually. Failure to comply with the Protocol could result in costs being awarded at court against the non-complying party.
 

What does the Protocol say?

1. When a dispute arises, neither party should interfere with the boundary or the disputed land, until the dispute is resolved.

2. Neither party should do anything which may impair the relationship between the parties or increase costs unnecessarily.

3. Both parties should agree to use the Boundary Dispute Protocol.

4. The First Conveyance should be interpreted to determine the location of the boundary. The words used, and the physical features referred to on the First Conveyance can assist the dispute. In some circumstances, subsequent conduct and services could be relevant.

5. Each party must consider the evidence that they can use. They must exchange documentary evidence they have, identify proposed witnesses and what they will say.

6. When appropriate, a joint expert should be instructed. If separate experts are justified, the experts need to write reports, meet up, identify the issues in dispute and set a strict timetable.

7. There should be an on-site meeting with the parties in dispute and any surveyors that have been instructed. An agreement on what the issues are needs to be made.

8. Any agreement reached must be set out in a written document and state clearly what has been agreed or what is required. It may refer to physical features on the ground. This will prevent future disputes. For certainty, it is wise to ask a lawyer to draw up this agreement.

9. Each party should apply to the Land Registry to note the agreement against their titles.

Following this Protocol will help you solve a dispute earlier, avoid unnecessary costs and can preserve a relationship between neighbours. We therefore suggest that you seriously consider the Protocol before pursuing litigation.

The easy to read Protocol can be found here

2018 08 22 164
Any individual living in the current technological age may have had some doubts about the protection of their personal data. When personal data is given over for social media accounts, automatic online sign-ins, employment contracts, legal claims, health records and other reasons so freely, it is understandable why these doubts arise.

The doubts are only provoked by seeing advertisements that relate so closely to search history patterns and the receiving of emails from businesses without giving explicit consent to them. Businesses process and control personal data on a daily basis for these reasons and only now have individuals been given further rights to protect them against this.
 
The new General Data Protection Regulations (GDPR) has recognised the need for protection of personal data. It will apply from 25 May 2018 and makes sure that personal data flowing in, or from, the EU is protected under one harmonized law.
 
For any business processing data, or controlling data with businesses that process data, compliance is essential. There are new requirements under the GDPR that need to be followed. These include, but are not limited to:
 
  1. Ensuring that consent has been genuinely obtained for the processing. If consent is obtained from a child, parental consent must also be obtained. This must be freely given, obvious to the individual that it is the giving of consent, clearly separate from other information, a positive action and be in plain language. This means that the ticking of a box would be acceptable, but the unticking of a box would not be.
 
  1. Making sure that the whole business is educated and trained about the GDPR, carrying out impact assessments and documenting all processing activities that are carried out. Records of training and impact assessments must be kept as a Supervising Authority may ask a business to show proof of GDPR compliance.
 
  1. Allowing individuals extra rights after the processing. This includes:
     
    • A way to withdraw consent as easily as giving it;
    • A way to access personal data that a business has, in a readable format; and
    • A way to request that their data is completely deleted.
       
Information about how an individual may initiate these rights must be provided by a business such as within a privacy notice or at the time of giving consent.
 
And what if a business doesn’t comply? They can be fined over 20 million euros! For any business, this is huge sanction. Non-compliance is not an option when faced with this potential penalty.
2018 00 22 47
 
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