Clarke and Son News

The Court of Protection’s role is to make decisions in relation to the health, welfare, property and affairs of children and adults who are suffering from mental incapacity.  Currently, these decisions are made in hearings held in private, with only the parties to the application being present, to ensure confidentiality is maintained for the vulnerable people involved.

Recently, the Court of Protection, which was quoted in The Times as being “One of Britain’s most secret courts” has been subject to widespread criticism in its workings. These criticisms are largely from people applying to manage the affairs of elderly or vulnerable relatives who have found the Court of Protection to be bureaucratic, complex and intrusive. As a result of these complaints the senior judge at the Court of Protection, Denzil Lush, has stated that he would favour a decision to allow media access to the hearings, as is the current position with the rest of family courts.  He did, however, specifically state that “there would have to be anonymity for the vulnerable elderly people involved, the details of whose financial affairs were being exposed”.

What is clear is that media presence could boost public confidence and understanding of the Court of Protection after the recent widespread criticism of its workings.

If you have any issues relating to the Court of Protection, you can contact Nia Wharry, Head of Wills & Probate department on Tel: 01256 320 555.

You will no doubt be well aware of the main provisions of the Chancellor’s pre-budget report. However the following are of particular significance:

• VAT is to return to 17.5% from 15% from 1st January 2010.  The 15% rate can still be used for services provided up to 31st December 2009.  When we are preparing our bills for you we will, where appropriate, provide apportioned accounts.

• The increase in the Stamp duty land tax threshold on residential properties from £125,000 to £175,000 will come to an end on 31st December 2009. The critical date is the completion date of the transaction which is normally (although not always) the date on which the purchase money for the property is paid and the buyer moves in.

Please note this office will close at 5pm on Wednesday 23rd December 2009 and re-opens on Monday 4th January, 2009 at 9am. The last date we would recommend for completion of a property purchase would be Tuesday 22nd December 2009.

For more information on moving home, mortgage and property services, please contact Paul Cowdery on Tel: 01256 320 555.

Falling house prices may seem like something of a memory, at least for some.  The Nationwide index showed a seventh consecutive monthly rise in November, by 0.5%, taking the price of an average house to £162, 764.  This is 2.7% higher than this time last year and means prices are back where they were in early 2006.  But improvement in the housing market is not uniform across the UK.  According to Hometrack, the strong growth in sales and prices is concentrated predominantly in London and the South East.  Buyer demand does appear to be softening though, which could mean the upward pressure on prices may weaken in the months ahead.*

 Paul Cowdery, Partner & Head of Conveyancing comments:

“Although the market has been stronger than anticipated in the past six months, the feedback we have from most local agents for the year ahead suggests that there is still a large amount of caution as to prospects for the housing market generally and for price stability in the year ahead.  What is causing concern is the impact of a number of uncertainties (e.g. the election, unemployment, the extent of tighter credit controls) which will come into play.  At Clarke & Son, we are continuing to focus our efforts on reviewing the title and supporting paperwork promptly to ensure everything is satisfactory and then moving transactions forward as smoothly as possible to exchange and completion once we are satisfied and our clients are happy to proceed.”

For more information on moving home, mortgage and property services, please contact Paul Cowdery on Tel: 01256 320 555.

*Source: The Chief Economists Weekly Brief from the Royal Bank of Scotland

One of the first decisions of the new Supreme Court (which last month replaced the House of Lords as the highest court in the land) will be a disappointment to many bank customers who suffered high level of charges after they exceeded agreed overdraft limits.

The Court accepted the banks’ argument that the Birtish tradition of free ‘in credit’ banking (rare elsewhere in the world) was only possible because charges levied on those who go overdrawn.

The decision does not preclude the possibility that the Office of Fair Trading could challenge the fairness of other aspects of bank charges, but it does mean that tens of thousands of customers who had pending applications for refunds of charges will now not receive them.

For private customers who do not go overdrawn on their current accounts, the decision may well mean that free banking will continue.

Earlier this month, the banks announced a pland to phase out cheques: they already charge business customers up to 65p more for writing a cheque than paying a bill electronically.

The following views relating to Home Information Packs (HIPs) post a General Election next Spring have been communicated by Rob Hailstones of the Home Information Pack Action Group (HIPAG).

Grant Shapps has recently reiterated his intention to ’scrap’ HIPs.  What he hasn’t said publicly, is whether he will amend or replace them.  However, the Conservatives have made it clear that they want to improve the home buying and selling process. It is therefore, highly unlikely that Mr Shapps will allow us to go back to the home buying and selling process, as it was, pre-HIPs.

 When the Conservatives held their own home buying and selling review last year it was made clear to them, by Owen Inskip and Kirstie Allsopp, that whatever format the HIP eventually takes, providing ‘information up front’ will be essential.  As an ex-conveyancer I believe we should build on the developments made over the last few years so that creating a property legal pack, that is as ‘exchange ready’ as possible, should become standard practice.

It has to be accepted that the political situation is not as clear as it was a while ago, the Conservatives winning with a safe majority is not a forgone conclusion.  Mr Shapps might not even become Housing Minister and scrapping HIPs will probably be way down the Conservatives ‘to do’ list, after Afghanistan, the economy, health, education etc.  Some pundits now forecast a March election but it would appear that the safe money is still no an election in May.

Whatever the outcome politically, I believe HIPs will either be with us for a while or any worthwhile replacement pack will still require the involvement of a good HIP provider and a local solicitor/conveyancer.

 Paul Cowdery of Clarke & Son LLP adds:

I share the view of HIPAG that a meaningful property legal pack does help in the initial stages of the conveyancing process.  I do not believe it should be a critical feature which will delay marketing and I do not think it should include local or drainage searches as is presently the case.  Results to those searches can be obtained quickly by the purchaser’s solicitor once a buyer is found.

For more information on HIPs, or buying and selling your home, contact Paul Cowdery on Tel: 01256 320 555.

The High Court has confirmed that a Solicitor’s Undertaking is something that the party to whom it is given should be entitled to rely on absolutely.

The decision reaffirms the importance of Solicitors’ undertakings in the conveyancing process and emphasises that undertakings should always be appropriately qualified and unequivocal.

A buyer that accepts a solicitors’ undertaking should be entitled to rely on it knowing that the solicitor will be compelled to comply with its terms.  If solicitors were able to delay complying with their undertakings because of  a dispute with a third party (save, perhaps, in very exceptional circumstances) it would undermine the sensible conveyancing practices that have evolved over time.

 For any queries on all services offered by Clarke & Son Solicitors, please email us or Tel: 01256 320 555

On 19 October 2009, the Financial Services Authority (FSA) published a discussion paper setting out its proposals for major reforms to the UK mortgage market.  The discussion ends on 30th January 2010.

The FSA’ proposals include:

• Introducing a “targeted degree of production regulation” for high-risk mortgage products.
• Requiring verification of the borrower’s income for all mortgage products.  This would mean that self certified and fast track mortgages would no longer be available.
• Making the lender ultimately responsible for verifying whether the borrower can afford the loan.
•  Prohibiting loans to borrowers where there are a combination of high-risk factors (for example, a high loan-to-value ratio and a borrower with a poor credit rating and unstable income).

 Shortly, Paul Cowdery, Property Partner, will be publishing details of a survey of local agents regarding the state of the residential property market in Basingstoke including comment on the implication of the FSA’s proposals.

For more information on buying or selling your home, please contact Paul Cowdery on Tel: 01256 320 555.

The new Supreme Court, which replaces the House of Lords as the highest appeal court in the UK, is scheduled to open for business at the start of the new legal year in October 2009. The creation of the Supreme Court separates the judicial function carried out by the Law Lords from the rest of the parliamentary process.

It will: hear appeals on arguable points of law of general public importance; act as the final court of appeal in civil cases for the whole of the UK; act as the final court of appeal in criminal cases for England, Wales and Northern Ireland; and assume the devolution jurisdiction of the Judicial Committee of the Privy Council. The Privy Council will retain its function as the final court of appeal for Commonwealth countries.

---

If you are a business owner or individual looking for highly qualified, professional advice regarding business law or family law, please contact Clarke and Son LLP or telephone 01256 320 555.

You may recall that the 2009 Budget announced that the temporary increase in the SDLT threshold to £175,000 for residential properties would continue until 31st December 2009, instead of ending on 2nd September 2009.

In September 2008, the SDLT threshold for land transactions consisting entirely of residential property, increased from £125,000 to £175,000. The revised threshold applies to transactions that have an effective date* (normally completion) between 3rd September 2008 and 2nd September 2009 inclusive. The effect of this temporary increase was to exclude residential transactions for chargeable consideration of up to (and including) £175,000 from a charge to SDLT. The change to the threshold was referred to as an SDLT “holiday”.

The Government announced that the ‘holiday’ would not end on 2nd September 2009, but would instead continue until 31st December 2009. The SDLT threshold will return to £125,000 for transactions with an effective date of 1st January 2010 or later.

As matters stand there is no proposal to extent the SDLT holiday but this may come up for consideration again in the pre-budget review in October or November.

For more information on buying and selling your home, please contact Paul Cowdery on Tel: 01256 320 555

*The effective date of a land transaction is the date of completion. The effective date may, however, be brought forward where there is substantial performance.

The High Court has held that some of the charges that estate agent Foxtons imposes on landlords are unfair under the Unfair Contract Terms in Consumer Contracts Regulations 1999 (UTCCR). The case was brought by the OFT, which said clauses in the small print of Foxton’s contracts for managing tenanted properties were a “trap”. Foxtons required a renewal commission if a tenant stayed beyond the initial one-year tenancy and 2.5% of the value of the property if the tenant went on to buy it. Mann J held that the renewal commission term did not form part of the core bargain between the parties and was therefore subject to review for fairness under the UTCCR. When he considered the fairness of the terms he found that some were not in plain language, that they were not sufficiently brought to a landlord’s attention and that they became increasingly disproportionate as the years went by, without Foxtons having to provide any commensurate services. The case illustrates that the OFT will take suppliers to court if they fail to agree to change their consumer terms and that the courts will act to protect consumers from suppliers who impose unfair terms.

For more information on landlord and tenant issues, please contact Paul Cowdery on Tel: 01256 320 555