Tag: legal advice

Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Buying your freehold

Signing a document, to illustrate someone buying their freehold, having received legal advice from property solicitors in Hungerford

If you live in a leasehold flat and fulfil the relevant qualifying criteria, it is possible to purchase the freehold of the building from the current freeholder.

This will give you several advantages, including:

1. Control over the management of the building, including insurance, maintenance, repair and decoration;

2. Control over the charges you pay for the management of the building;

3. It is likely to increase the value of your property.

Before you proceed with a freehold purchase, you will need to discuss the matter in depth with the leaseholders of the other flats in your building and obtain a commitment as to those who are going to participate. This can be done by a “participation agreement”.

To discuss this and to obtain more information contact:
Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Joint Ownership

Row of Cotswold cottages - illustrating legal advice for jointly owning a house, from property solicitors in Hungerford Berkshire

When two or more people are buying a property together, a decision needs to be made about how to own the property. There are two methods of joint ownership:

  • Joint Tenants: Each of you has an equal interest in the property and if one of you dies, the survivor will automatically inherit the whole of it.

  • Tenants in Common: Each of you has your own interest in the property, distinct from the other, which may be an equal or an unequal part. Your own share in the property would pass by your Will to whomsoever you choose. The amount of your share is usually based on your contribution towards the cost of the property or any work on it.
  • The method of ownership is important to consider in all cases, but particularly in certain circumstances:

    1. Where an unmarried couple is buying a property. The declaration made at the outset is the strongest evidence of intention in the event of a later dispute.

    2. Where you are making unequal contributions towards the purchase price and costs. The person contributing the larger amount of equity may wish to ensure that interest is protected in the event of sale of the property

    3. Where a third party (such as a parent) is contributing to the price or costs. The third party will be advised to obtain independent legal advice on the transaction and it is strongly recommended that an appropriate deed be drawn up setting out the respective interests or contributions of each party.

    4. Where you are buying the property as a buy to let investment. The method of ownership is likely to have tax implications which should be considered before the purchase.

    If any of these circumstances affect you, you must tell us before you purchase the property so we can ensure you receive the right advice and, if appropriate, enter into a declaration of trust. If there is no agreement between you at the outset, there may be problems in the event of separation, divorce or death and a division of the equity which does not truly reflect your intentions could result.

    Joint owners who wish to hold their property as tenants in common should consider entering into a declaration of trust to set out clearly the individual financial responsibilities for the property. Matters to consider are:

  • Who is responsible for the mortgage payments and in what proportions?
  • Who is responsible for the other outgoings (utilities, council tax etc.)?

  • Who is responsible for maintenance and repairs?

  • What happens if there is a change in those contributions?

  • What happens if one of the co-owners stops living at the property before it is sold?

  • What happens if one party wants to sell their share? Would the other party have a right to buy him or her out?

  • What happens if one of the co-owners dies?
  • We would also recommend that a restriction be placed on the property title to protect the interests of co-owners or third parties

    The law relating to joint ownership can be complicated and you may need to seek financial or tax advice before deciding what to do. Please speak with your conveyancer who will be able to refer you to a member of our private client team for further advice, if appropriate.

    To discuss this and to obtain more information contact:
    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Conveyancing process – flowchart for buyers

    To discuss this and to obtain more information contact:

    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Commercial property

    Commercial property being built - to illustrate commercial property legal advice from conveyancing solicitors in Hungerford Berkshire

    We are frequently instructed to act in connection with commercial properties such as shops, offices, industrial units, warehouses, hotels and public houses and even on a couple of occasions, public conveniences.

    1. Sale and Purchase

    We can advise on:

    a) The sale of a freehold property or the grant of a long leasehold interest in a property

    Every sale or purchase is slightly different. We like to be involved from the outset to ensure we understand your requirements and the rationale for doing what you are doing. Certain aspects are critically important to get right from the outset, particularly the VAT status of the transaction.

    We are on the panel of most lenders and will normally be instructed by a lender to act for them as well as you. This can often assist a transaction to run more smoothly.

    b) Conditional contracts for the sale or purchase of property

    A conditional contract may be required if something has to happen before a buyer will purchase but the parties wish otherwise to commit to a sale and a purchase. The most common condition is the grant of planning permission.

    c) Option Agreements

    An option is an agreement giving someone the right to buy a property on specified terms for a certain period. The price may be fixed or may depend on an outcome during the option

    period. An option agreement is often used to enable a developer a certain period in which to explore the planning potential of a piece of land.

    d) A deed of pre-emption

    A pre-emption right is a right of first refusal. A common use of such a right is when someone sells maybe a slightly more unusual property, often retaining adjoining land, and wants the right to be able to “buy-back” that property
    when it is next offered for sale

    e) Overage agreements

    Such an agreement is when an additional payment is due, normally to a seller on the happening of an event in the future. This will often be if planning consent is granted which enhances the value of land. The seller will then be entitled to the additional
    payment.

    2. Leases

    We can advise a landlord or a tenant in connection with the grant of a lease.

    We do like to meet you to discuss your requirements and to ensure that we understand what you wish to achieve. If a meeting is not feasible, we will report to you on the documents and we can then discuss with you on the telephone any issues arising from that report

    It might be that there is a lease of the property already in place and you wish for that lease to be assigned to you. We can advise you on the procedure and the various documents which will be required.

    We advise on licences to occupy which are suitable for a short-term let (no more than 6 months) or where space is shared.

    We also advise on the renewal
    of leases and the termination of leases.

    3. Landlord and Tenant Issues

    We advise on various issues which arise between a landlord and tenant including:
    a) Non-payment of rent.

    b) Claims for breach of covenant.

    c) Dilapidations.

    4. Planning

    We advise on planning agreements which are often required as part of the planning process together with Landowners’ Co-operation Agreements.

    5. Financing and Security

    We advise on mortgages, guarantees and debentures.

    We are often instructed by a lender whilst acting in connection with a purchase. Knowing our client can assist in that process.

    To discuss this and to obtain more information contact:
    Victoria Hopgood at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    What is probate?

    Probate legal advice in Berkshire, image shows a person reading documents

    Probate, what is it? When a person dies, someone has to deal with their affairs and decide what will happen to the things they owned.

    Executors

    The executors are the people appointed in a Will to deal with the estate of the person who has died. An administrator is the person who deals with the estate of a person who has died without a Will (intestate). They can both be called personal representatives.

    Executors can arrange the funeral and take charge of the house and possessions, unless they automatically pass to a joint owner.

    If there are sufficient assets the executors will have to apply for probate. This is the legal document proving the Will and authorising the executors to deal with the assets and liabilities of the estate.

    Applying for probate

    To apply for probate, the value of all of the deceased’s possessions, assets and debts has to be ascertained.

    If there is, or could, be Inheritance Tax to pay, the executors must report the value of the estate to HM Revenue. If the estate is not liable to IHT the executors must still complete a form giving details of the assets and certain gifts made by the person who died. This must be arranged before an application is made to the Probate Registry.

    Once the matter of inheritance tax is resolved, an oath is sworn by the executors or administrators, confirming that they will administer the estate. When probate is granted, the executors have the right to deal with the assets and property of the deceased, including closure of bank accounts, sale or transfer of shares, transfer or sale of property, and payment of debts and expenses etc.

    Executors are responsible for distributing the estate to the beneficiaries of the Will. Administrators must follow the ‘rules of entitlement’, which govern who will benefit from the estate of a person who has died intestate (without a will).

    Instructing Us

    Instructing a solicitor to act for you if you are an Executor or Administrator has the following advantages: –

    1. It reduces the distress of dealing with the property and assets of a close relative or friend.

    2. A solicitor advises on whether or not Inheritance Tax is payable and if so, how and when it must be paid. Inheritance Tax is complicated and in most cases you will need specialist legal advice. A solicitor will complete the lengthy inheritance tax return.

    3. Financial institutions have different requirements to be met before they will release the deceased’s assets. A solicitor will be familiar with these procedures.

    4. Administering an estate can be lengthy and complicated. A solicitor will be used to the complexity and be able to commit the time needed to sort out the estate.

    5. A solicitor can deal not only with Inheritance Tax but also with income tax and capital gains tax arising during the administration of the estate, for which tax returns are required.

    To discuss this and to obtain more information contact:
    Emily Payne at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Lasting Powers of Attorney

    Berkshire solicitors, a person signing a document giving someone lasting powers of attorney

    A Lasting Power of Attorney (“LPA”) allows you to appoint an attorney to look after your affairs if you become incapable of doing so. It can only be made in advance, by a person who is still capable of making decisions.

    Why make a Lasting Power of Attorney?

    If no provision is made, and you lose capacity to make decisions for yourself, there would be no-one with legal authority to manage your affairs. The person wanting to help you with this task would have to apply to the Court of Protection for a deputyship order. Whilst we are happy to assist with this, it is a time-consuming and expensive process, and means that your appointee can do nothing until a Court Order is made. The person wishing to be appointed may not be the one you would have chosen!

    If an attorney has been appointed in advance, and the document registered, they may carry out your wishes and act on your behalf without delay or further formality.

    A Lasting Power of Attorney also helps relieve those close to you of responsibility for trying to guess what you would have wanted, and will help in the situation of there being conflicting views within a family, or indifference, as to the best way to care for you if you are unable to look after yourself.

    What is a Lasting Power of Attorney?

    The Lasting Power of Attorney is a legal document which allows decision making to be delegated to your chosen attorney or attorneys, so that they can make decisions for you when you are unable to do so. attorney or attorneys, so that they can make decisions for you when you are unable to do so.

    There are two types of Lasting Powers of Attorney:-

    1. Property and Financial Affairs Lasting Powers of Attorney

    A Property and Financial Affairs LPA enables your attorney to manage and sell your property, manage your bank accounts and investments, and pay bills on your behalf.

    2. Health and Welfare Lasting Powers of Attorney

    A Health and Welfare LPA enables you to set out how you want to be cared for if you lose your mental capacity. It covers medical treatment, where you live, what sort of care you receive, and day-to-day decisions about your welfare.

    How do I make a Lasting Power of Attorney?

    We will go through the forms with you and help you to decide what type of power of attorney is right for you, and the conditions you wish to place on it. When the Powers are created, an independent person has to certify that you are signing it of your own free will and that you understand what you are doing. We can do this if appropriate. In some circumstances, a Doctor may be asked to certify the LPA.

    The LPA then has to be registered with the Office of the Public Guardian before it can be used, even if the donor (the person making the LPA) still has mental capacity. As part of the registration process, at least one person can be notified of the LPA so that they can raise any concerns with the OPG. The registration process takes between 6 and 16 weeks, depending on the workload of the Office of the Public Guardian, so we recommend registering straight away, so that the LPA is available to be used as soon as it is needed.

    To discuss this and to obtain more information contact:
    Emily Payne at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

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