New year, new home improvements? If you are planning on carrying out any changes which may affect a shared wall, then take a look at our,

10 THINGS YOU NEED TO KNOW ABOUT THE PARTY WALL ACT:

The Party Wall etc. Act 1996 (“PWA”) provides that a neighbour must be notified of any work intended to be carried out which may affect the structural strength or support function of a party wall or may cause damage to the neighbouring side of the wall.

A building owner must comply with the PWA where they intend to:

Carry out works to an existing party wall, including rebuilding a wall to a reduced height;
Build a new party wall;
Build within 3 or 6 metres of the adjoining owner’s walls or buildings where the works involve excavation.

A party wall is one which stands astride the boundary of land belonging to two or more different owners. It may be part of one building or may separate two or more buildings. A wall is also a party wall if it stands wholly on one owner’s land but is used by two or more owners to separate their buildings.

A party fence wall is one which separates land but is not part of a building, such as a garden wall. A wooden fence is not a party fence wall for the purposes of the PWA.

The rights and obligations of the building owner vary according to the type of works which are being undertaken. Generally speaking, there is a requirement to serve notice on the adjoining owner, to carry out the works in accordance with the agreed plans, to exercise reasonable care when carrying out the works, to avoid causing unnecessary inconvenience to the adjoining owner during the works, to compensate the adjoining owner for any damage caused, and to pay for all expenses relating to the works.

If the building owner fails to serve notice, the adjoining owner can seek an Injunction preventing the works being carried out or compensation. However, where the notice has been correctly served, it is an offence for the adjoining owner to refuse access to the land or obstruct the works. The building owner is permitted (with police assistance) to break any doors or fences which prevent their right of access.

The obligations on the building owner must be complied with, otherwise they can be liable for breach of statutory duty, for which damages can be sought, and they will not benefit from the protection provided by the PWA. Where damage or loss is caused as a result of a failure to comply with the PWA, the adjoining land owner has a claim in private nuisance against the building owner, who may also be liable in trespass.

The PWA does not affect any requirement to obtain planning permission or building regulation approval and likewise these do not negate the requirements of the PWA.

The PWA provides a dispute resolution procedure which gives the building owner the rights needed to carry out the works, whilst at the same time protecting the interests of the adjoining owner.

Where agreement cannot be reached, the parties can instruct a surveyor to draw up an Award. A Party Wall Award will govern the extent of the building owner’s works, set out the manner in which the works are to be carried out and document the original condition of the land in case damage is subsequently caused. The Award is final and binding and can only be overturned on appeal to the County Court. Any appeal does not automatically stay an Award, meaning that the building works can continue unless a stay or injunction are granted.

‘He which hath no stomach to this fight, let him depart; his passport shall be made, and crowns for convoy put into his purse.’

If you have come to me, most probably you are in trouble with the criminal law and want to be defended, hopefully found not guilty or given the lowest possible penalty. So what do you get from me? What is the ‘art of defence’?

Firstly, as the Shakespearian quote from Henry V indicates, you get a lawyer up for the fight. If I am less than fully committed to you and your defence I am not doing a proper job and am not worth the trust you place in me. I am a bad loser and will do all I ethically can to act in your best interests.

Secondly, you get a lawyer who will make the prosecution work. If they want to convict you of whatever you are accused of, they will have to work for it. They will have to prove every required element of the offence and they will have to show the prosecution is fair and in the public interest. And I won’t make it easy for them. In our free country, the burden is on the prosecution to prove you guilty, and I won’t let them forget. In the immortal words of John Mortimer’s famous comic creation Rumpole, the prosecution will not make a ‘balls of the burden of proof.’

Thirdly, I will live up to the maxim of leaving ‘no stone unturned’ in your defence. That means not just dealing with the obvious but actively taking measures to defend you, finding material that can assist you, questioning the prosecution case, striving to achieve the best result at all times, and finding unorthodox arguments to challenge the prosecution and improve your case.

And fourthly, I will always strive to be one step ahead of the prosecution. I will be better read than them, better prepared for hearings, will never leave their case unchallenged and will continually place the burden of response back on them.

Years ago I went for a job interview. The interviewing partner was married to a senior lawyer in the Crown Prosecution Service. She described me in defence terms as a ‘complete nuisance.’ It was a badge of honour I still proudly wear today.

Have laptop, will travel - the consultancy model

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The thing about modern working is that no one is sure where the boundaries are anymore. There are generational differences within most workplaces meaning we grew up with different expectations of what ‘work’, and a workplace, actually looks like.

More and more businesses are offering agile working as an option. This means that employees can work from home, the coffee shop, or mum’s house, to complete their tasks. This shows a level of trust between the employer and employee along with the expectation that this will secure a more loyal and productive worker.

The question is, in whose interests does this work? From the employee’s perspective, there’s no longer a need to join the daily commute; technology allows for instant access to any files/information they may need; and, with clear work expectations laid out, they can achieve what they need to, when they need to. From the employer’s perspective, there is less need for day to day management and if deadlines are met, this creates an easy symbiotic way of life.

However, while agile working is becoming a more excepted alternative for some it asks more questions than it answers. Some people enjoy being in the office with clear expectations of coming to work, doing the job asked of them and then, hopefully, switching off from work once they leave. Granted, some may work long hours in the office, and may take work home, but, overall, work is at work and life is at home. With agile working, there is element of the unknown as people work differently and, by not being ‘supervised’, how do we know if one person is completing their task within hours while for others it takes days? As an employee, it can become unnerving having to justify, or thinking you need to justify, inputs and outputs.

There is another option. Consultancy. Again, this isn’t without risks. For many, the thought of leaving secure employment with the monthly salary, holiday and other benefits, and a business infrastructure, can cause shivers. For those contemplating this change there are other factors to consider such as, where you are in your lifecycle i.e. buying a house, starting a family, etc., but, more importantly, it depends where you are in your career. To succeed as a consultant, it’s useful to have a client following, though, not essential if you can go out and win new clients. If you’re not comfortable going out and making your name known, then choose the type of consultancy firm which provides business development support.

The clear difference between agile working and consultancy is that the line isn’t blurred. The work that you do as a consultant is for you. You are no longer accountable to a greater entity, only to yourself. This prospect can appear daunting but working for an organisation like Legal Studio, Setfords or Gunnercooke can give you access to market along with a business infrastructure to begin working with clients immediately but doing it on your terms. Every consultancy firm has different agreements with their consultants and it is all about what works best for you. The things to consider are: is there a joining fee? Are there targets? What is your percentage split? What support do you receive? The area of law you specialise in and what level you are at, will provide different answers to those questions but, again, it is about what works for you.

Ultimately, everyone needs to learn what type of worker they are? Are you someone who works best in an office with secure employment rights; or, do you work best out of the office with clear expectations; or, are you the type of person who wants to choose how and when you work without boundaries? Once you can answer that question it makes choosing the next step in your career that much easier.

Drawing The Line

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Buying land with the benefit of planning permission can bring with it unexpected difficulties when the subsequent development is not carried out by the party who initially obtained the planning permission. Take a look at Lindsay Dixon’s advice to make sure the line is drawn correctly…

The case of Signature Realty Limited -v- Fortis Developments Limited highlighted the importance of obtaining an assignment of the copyright, or a licence to use, the Architect’s drawings that formed the basis of the planning permission to avoid infringing copyright in those drawings.

Signature Realty was a property developer which obtained planning permission for a block of flats based on drawings prepared by an Architect, but was then unable to secure finance to purchase the site and complete the project. The site was therefore sold to Fortis. Planning permission had been granted on the condition that the development was completed in accordance with the Architect’s drawings, which had been published on the local authority planning portal with a copyright notice. Signature Realty issued proceedings against Fortis for infringement of the copyright in the drawings.

The drawings had been used by Fortis for marketing the properties, tendering, producing AutoCAD versions and constructing the building. The Court held that there was sufficient intellectual skill in the drawings for copyright to exist and that Fortis had in fact infringed the copyright in the drawings.

The Court did not accept that Fortis had an implied licence from the Architect to use the drawings on the basis that they had paid a premium for the planning permission. Simply, Fortis had not engaged the Architect and it had not bought the land from the copyright owner.

The Court ordered an enquiry as to damages or an account of profits. The Court did not consider it appropriate to award additional damages under section 97(2) Copyright, Designs and Patents Act 1988 as there had not been a flagrant infringement and the benefit gained had not been as a direct result of the copyright infringement.

Ordinarily, in a situation such as this, the site owner will instruct the Architect to prepare design drawings before selling the site to a third party with an implied licence to use the drawings to complete the works required on the site to comply with the planning permission. In this case, however, the property developer who commissioned the drawings and obtained the planning permission was not the original land owner or the developer who built the building. Accordingly, they did not have any implied licence which they could transfer when they sold the land and therefore the copyright in the Architect’s drawings was infringed.

Confidentiality: Trade Secrets

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What is an Employee?

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Employment law is very much en-vogue. You can hardly open a paper or watch the news without hearing about another gig-economy employment case, a Government review into employment status, the Supreme Court considering the legality of tribunal fees or changes to national insurance for the self-employed.

Employment law is constantly changing. There is probably more focus on employment status at present than at any time in the recent past.

The definition of an employee will differ depending upon whom you ask. In health and safety case, an employee will be entitled to greater protection (and so the definition is very wide). The definition is probably narrower in employment law terms and more narrow still when determining how an individual is taxed.

When determining employment law rights – the definition of employee is of significant importance. Employees are entitled to far greater protection than the self-employed (or “workers”). Employees alone have the right to claim unfair dismissal, redundancy pay and maternity and other family leave and pay.

Employees also benefit from the protections afforded to “workers” (a hybrid EU concept wider than employee but not self-employer). Workers (and employees – as all employees are workers) have the right to the national minimum wage, holiday pay, whistleblowing and discrimination rights. The self-employed do not benefit from these protections.

By contrast those who are self-employed have tended to benefit from a more favourable tax and national insurance regime.

Recent employment tribunals have considered the status of individuals providing services to the public through Uber (drivers) and Deliveroo (couriers). Both emphatically concluded that those providing the services were workers (they were not determining employment status) rather than genuinely self-employed as the businesses had purported (and their detailed and clever contracts claimed).

This meant that Uber drivers and Deliveroo couriers were entitled to the minimum wage whilst working, paid holidays and had the right to bring discrimination claims.

The legal test to determine employment status is a multi- factorial test that considers various factors including control, personal service, the level of integration, the level of risk, mutuality of obligation and the level of control or autonomy. However, in reality the tribunals have a tendency to utilise the duck test (i.e. if it looks like and it quacks like….)

The Government is reviewing self-employment and is proposing to report in the Autumn (in time for increased national insurance contributions from the self-employed, probably in exchange for increased rights).

However, what we are seeing is that the old tests are not necessarily appropriate for today’s more flexible, variable workforce. The test of who was employed (the old “master and servant” tests) no longer necessarily fit today’s agile, autonomous workforce.

Dilapidation? Why Does It Matter?

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The contract between a landlord and tenant will make provisions for the property to remain in good repair and condition. Take a look at the reasons why it is important to be aware of dilapidations.

A landlord will be keen to make sure that the property is managed properly and that, come the end of the lease term, the property is in the same condition as at the start of the lease. Otherwise, the landlord may struggle to find a subsequent tenant or may not be able to achieve enough rent. It is for this reason that the landlord will want to include within the lease a requirement for the tenant to keep the property in good repair and condition.

If the landlord is unable to let the property after the end of the term due to the tenant having failed to comply with its repairing obligations then the tenant may face a claim from the landlord for breach of contract.

When acquiring property, either under a new lease or by taking an assignment of an existing lease, it is essential that a tenant obtains proper advice. In order to reduce the risk of a potential claim at the end of the term it would be prudent to consider the following at the outset:

Potential costs – Ensure that financial provision is made. This may involve getting a survey commissioned by a surveyor in order that the potential costs are properly assessed.

A detailed schedule of condition – This should be appended to the lease and should set out the condition of the property at the start of the lease, thereby limiting the extent of work that can be claimed by the landlord to be required to put the property right at the end of the term.

Items already in disrepair – Despite the inclusion of a schedule of condition, certain items of disrepair which pre-exist the lease cannot be ignored for the duration of the term. In these circumstances the tenant would be better placed by taking a sum of money from the landlord or insisting that the landlord puts the property into good repair before the lease is signed.

If these issues are identified and dealt with there is one less reason for cracks to form in the relationship between landlord and tenant.

In a Bind?

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Things are not always what they seem. Sometimes, what appears to be an agreement is not in fact binding. On the other hand, a binding agreement can be made without the parties realising it. So, when do you have a binding contract?

A contract is formed when the parties have agreed on its essential terms. There are no particular formalities required to create a binding contract. It is possible to create a contract orally or by conduct, as well as in writing.

A formal agreement is not always required. The parties may agree terms with the intention of preparing a formal document at a later date and it is often assumed that there is no binding agreement until then. That may not be the case. The Court will look at the parties’ words and conduct to determine whether it was intended they would be bound immediately or only after preparation of a formal document. Marking correspondence as ‘subject to contract’ will give an indication that the parties do not intend to create a binding contract.

Sometimes parties will agree ‘heads of terms’ or ‘heads of agreement’ as a pre-cursor to a full written agreement. Generally, these documents are not intended to be binding but the Court may find that the parties did intend to be bound based on their words and conduct. Again, using the ‘subject to contract’ label will assist in demonstrating that the document is not intended to be legally binding until a formal agreement is prepared.
It is common for parties to agree terms ‘subject to contract’ and then begin performing their obligations before a formal contract is in place. It can then be unclear whether the parties are acting on terms set out in pre-contract documentation; whether a contract has been concluded on more limited terms; or whether there is a binding contract at all. The outcome will depend on the particular facts of the matter.

It may be that the parties have entered into a binding agreement, but that the terms are incomplete or it is too uncertain to be enforced. In those circumstances, the Court may find that there is no binding contract because the obligations are too uncertain and there is simply no way to determine what obligations the parties have.
In order to be enforceable, an agreement requires ‘consideration’ to be provided by both parties. This is usually some form or payment or value. Where the obligations of one party are not sufficient to amount to consideration, payment may need to be made. It may also be necessary to have an agreement in the form of a deed.

Top Tips

Remember a contract can be made by email, orally or by conduct
Ensure all obligations under the contract are clearly defined
If it is necessary to start work earlier, ensure all key matters are agreed first
Ensure written agreements are signed by all parties
Mark all correspondence ‘subject to contract’