Book Review – The President’s Hat by Antoine Laurain

Last week our book club met to chat about The President’s Hat by Antoine Laurain. This was my book suggestion. It is a charming fable about the power of a hat that takes the reader on a roller-coaster ride through French life in the Mitterrand years and it proved to be a popular choice with the group.

In November 1986 , 5 years into Francois Mitterrand’s 16 years reign as President of France , an ordinary accountant Daniel Mercier treats himself to a “bachelor evening” while his wife and son are away. Sitting in a restaurant indulging in oysters and a splendid bottle of Pouilly-Fuisse, Daniel can hardly believe his eyes when President Mitterrand and two of his associates sit down to eat at the table next to him.

After the presidential party leaves Daniel discovers that the President has left behind his black felt hat. Daniel perhaps emboldened by the wine he has drunk walks out of the restaurant wearing it. But this is no ordinary hat. Confidence that Daniel did not know he possessed soon comes out in unexpected ways. He criticises a superior at a meeting and gets promoted.

The hat is passed along by mishap and soon finds a new female owner, Fanny Marquant ,who is trapped in a long and unfulfilling love affair with a married man. When wearing the hat Fanny sees that being the other woman is not full of romance and secret meetings and she has the clarity to end her affair. She realises that the hat has given her this insight and that in turn she must pass the hat on to someone else.

The iconic item of headgear plays with the life of two further characters, a retired perfumer who rediscovers his genius and a ghastly right wing bore who suddenly becomes aware that all his friends are ghastly right wing bores, stops reading Le Figaro and starts reading Liberation. The hat changes the fortunes of all who possess it and eventually returns to its original owner in a unique way.

Can a hat change people’s destiny? Is this or is this not an allegory of power? While we wrestled with these questions we all agreed that we enjoyed the details of the book. Laurain captures each character quickly in a clever, colourful style with many subtle meanings. The short novel is shot through with a delicious sense of humour recreating vividly the everyday life of an era, being very much a hymn to la vie Parisienne in the 1980s.

That said the novel can simply be appreciated for its originality and fabulistic narrative. It acts as a reminder that many of life’s most important events can be the result of tiny details that shape our future in unexpected ways.

74% of Britons Admit They Didn’t Change the Locks after Their Last Move

Experts have confirmed that buying or selling a house is one of life’s major stresses. An in-depth study of 2000 adults commissioned earlier this year by Estatesdirect.com discovered a large percentage found the hassles of moving home were greater than the tensions experienced when losing a job, becoming a parent or planning a wedding.

Certainly moving home has its anxious moments. You find a house and have a buyer for your flat and that is often the easiest part. Buying and selling at the same time often means that you have to deal with two sets of estate agents, two sets of solicitors and different lenders. Issues may come up with the paperwork which could derail the whole process. You don’t want to get too attached to the place you are buying in case everything falls through .On the other hand you worry about your new home as it is the biggest purchase of your life- yet you have only seen it once and you would have spent longer deliberating over what shoes to buy. And then there is the packing up, the actual removal , the unpacking and looking for the kettle.

In the midst of all this with so much to organise and remember it is easy to overlook some important tasks, chief among which is getting your locks changed when you move into your new property. A recent survey by Keytec Locksmiths has shown that less than 30% of homeowners change their locks after moving home potentially leaving them vulnerable to break-ins by other keyholders.

There is little doubt that a home insurance claim may be at risk of being turned down if a spare set of keys was used by a previous owner or tradesman to commit burglary as generally speaking there must be clear signs of breaking and entering in order for a claim to be valid. And it is also not just the insurance implications to think about –there is also the possibility that you could be putting yourself and your family in danger as even if you completely trust the sellers there really is no telling how many sets of keys they have given to friends and relatives or lost over the years and forgotten about.

According to Home Office statistics you are almost twice as likely to be broken into in the first year after moving house and nearly three times as likely in comparison to occupiers who have been in their house for over 10 years and although the Office of National Statistics shows the number of recorded burglaries has been gradually falling year on year for the past decade, nonetheless it is one of the most commonly recorded crimes.

Compared to the overall cost of buying a property the cost of changing locks is likely to be very modest and can provide security and peace of mind. With so many expenses and arrangements to think about in any house move it is hardly surprising that home security is not always prioritised in the way it should be. As said before for most people buying a house is the largest purchase they will ever make so it seems sensible to spend a few more pounds just for the peace of mind of knowing who has a key to it.

What do you think? Did you get the locks changed after your last move?

Surrogacy and the Law

As an undergraduate I studied Forensic Medicine. One of the topics we covered was the legal issues surrounding surrogacy and so it was with interest that I read a recent BBC report which pointed out that the number of registered surrogacies in the UK has risen from just 83 in 2010 to a projected figure of more than 200 this year.  Surrogacy is legal in Scotland but subject to many complexities.

A surrogate mother is a woman who carries a child by virtue of an arrangement to do so. Common scenarios might be a married couple encountering difficulties in conceiving or giving birth naturally or a family member agreeing to carry a baby for her sister who has had a hysterectomy. There are two types of surrogacy, partial and full. Partial surrogacy involves the surrogate mother’s egg being fertilized with the intended father’s sperm. In full surrogacy there is no genetic link between the surrogate mother and child.

A surrogacy agreement will be entered into between the parties wanting to be parents and the surrogate mother. The arrangement must be made before the mother begins to carry the child and is formulated with a view to handing over the child to the prospective parents after the child is born. It is illegal to advertise for a surrogate or for a surrogate to advertise her services. No money or other benefit, other than reasonable expenses, must be given or received by either party.

Legally, however, surrogacy arrangements are unenforceable. Ultimately the surrogate mother has the legal right to keep the child when it is born and if the intended parents decide they do not want the child then they can walk away even if a contract has been signed. Few could have missed the story of baby Gammy, born to a Thai surrogate. The baby had Down’s syndrome and was allegedly left behind by the Australian “commissioning couple”. There is nothing to prevent the same situation happening in Scotland.

A recent English case highlighted further difficulties. A heterosexual couple wanted a child but the female of the couple had had a hysterectomy so a friend agreed to act as the surrogate using the male’s sperm and her own egg. A baby girl was born, handed over to the couple but three months later the couple split up. The woman left the home and took the baby with her.  But the surrogate mother was legally the child’s mother and the man in the couple was legally the child’s father. The woman of the couple had no legal relationship with the child whatsoever. This would equally apply in Scotland: the woman of the couple would have no parental rights and responsibilities, with no right to have the child living with her whereas the surrogate mother would be responsible for regulating the child’s residence and be obligated to financially support the child.

Clearly legal advice is crucial to ensure the relationship between the child and its intended parents is given the correct legal standing .Parenthood can only be transferred to the intended parents through a court order. An application for a parental order must be made within the first 6 months of a child’s life. In Scotland application is made to the Court of Session or the Sheriff Court in the place the child resides. The applicants must be husband and wife, civil partners of each other or two people who are living together in “an enduring family relationship.” The child must be living with the applicants at both the time of the application and the time of the making of the order. One of the applicants must be domiciled in the UK. The court must be satisfied that the surrogate mother or anyone else who is a parent of the child but not one of the applicants freely consents to the making of the order.

Why A Power Of Attorney Is A Good Idea

Last December a new campaign was launched across Glasgow to raise awareness about the importance of having a Power of Attorney.NHS Greater Glasgow and Clyde and Glasgow City Council joined forces with Alzheimer Scotland and Scottish Care to highlight the need to “Start the Conversation” with family members about putting a Power of Attorney in place.

Every year thousands of people in Scotland lose capacity-it could be an accident, a head injury, a stroke or on-going progressive illness. Such occurrences are not age prescriptive. The only way you can plan for your future is to appoint an Attorney who can make decisions for you when you are unable to do so for yourself. Anyone over the age of 16 can make a Power of Attorney.

So what is a Power Of Attorney? It is a written legal document giving someone else authority to take actions or make decisions on your behalf. You choose who you want to act as your Attorney and what powers you want the Attorney to have. The deed can cover both financial and welfare provisions.

The financial provisions can include power to purchase and sell heritable property, power to operate bank accounts, power to claim and receive all pensions, benefits, allowances etc. There are many other powers which can be included or left out as appropriate, depending on your circumstances. Welfare powers can include power to decide where you should live, to have access to your personal information, to consent or withhold consent to medical treatment.  Again there are other powers that can be specified to meet your individual needs. The deed can be limited to cover a certain transaction or to cover only a specified period of time.

You can appoint anyone you wish to be your Attorney e g family member, friend or solicitor. Importantly you should appoint only someone you trust- whoever you feel comfortable with dealing with your affairs.

To become effective and to allow your Attorney to act on your behalf the Power of Attorney must be registered with the Office of Public Guardian which supervises all such appointments.  It is therefore possible for a Power of Attorney to be drawn up now and put aside to be registered in the future when appropriate. Further provision can be made in the Power of Attorney that it must not be registered unless a doctor certifies that you are unable to manage your own affairs.

In a different context a Power of Attorney could be used to help in everyday life. For example couples may decide to grant each other Power of Attorney if one partner spends a lot of time working overseas. Someone may grant a Power of Attorney to a trusted friend or professional to complete a transaction for example a house purchase settling when the grantee is out of the country. A student may grant a Power of Attorney in favour of their parents while they explore the world during a gap year.

One last point to note if you have not granted a Power of Attorney in advance and you do lose capacity then the courts have to appoint someone to act as your guardian. There are processes by which family members can apply to be granted these powers but it is a long and expensive process requiring a court hearing.

YES A POWER OF ATTORNEY IS A GOOD IDEA.

Small Print Hides A Multitude of Sins

I am a customer of a major Scottish bank. I logged on recently to its online service and was told that the terms and conditions had been changed and that I had to “accept” new conditions if I wanted to proceed.  I scrolled down pages of turgid text before finding “accept”. As a lawyer I thought “I should read this”: as a member of the human race I thought “I just want to see my balance, just click “accept”. Human nature prevailed.

All of us at some point will have signed up to a bank account or credit card or booked flights online and I am sure that many people do not read the small print. However, when clicking “accept” you are agreeing a contract on exactly those terms with the company. Granted it is rarely feasible to read the terms and conditions at the moment of agreeing to them and it is rarer still to have any negotiating power to change the conditions. The consumer protection industry recognizes this and there is legislation in place to ensure that even contracts which have not been drafted or negotiated between both parties must still be “fair”.

However it is precisely the power and activity of the consumer protection industry  which has brought about the prevalence of terms and conditions ,no doubt  with the laudable aim of enabling the purchaser of a product or service to know in advance what he is getting. But, in practice  providers of goods and services have seized the opportunity to include disclaimers for every kind of incompetence they are capable of perpetuating and to sneak into such agreements a host of hidden charges.

With this is mind I would urge that a level of caution be applied to small print.  In an article he wrote some years ago our Chairman described the ignoring of small print as “Voluntary Consumer Blindness” (VCB). We chose not to “see” the small print and by introducing certain unfavourable terms and conditions many companies are hoping VCB will prevail.  VCB may save  the mind -numbing boredom of analysing the terms and conditions but you may also be paving the way for a company to claim extra monies from you.

So when opening a bank account please check out the charges, make sure terms which are being offered are set out in writing , look at notice periods and check that any trivial breach does not change all the rates and charges.  When booking flights on line check costs for additional baggage, charges for losing boarding passes and any compensation due for late or cancelled flights.

If I can advise you regarding the terms and conditions of any contract you may be involved in please call Paul Neilly on 0141 552 3422 or email me on pdn@mitchells-roberton.co.uk

Can a poorly drafted lease cause trouble?

In a recently published case, Eastmoor LLP (the Landlord) against Keith Bulman (the Tenant) heard at Dumfries Sheriff Court, the Landlord asked the court to grant an order for recovery of possession of rented premises before the actual date on which the tenancy agreement was due to terminate.  Sheriff Jamieson, however, refused to grant the order sought deciding instead to dismiss the action due to a “poorly drafted” lease.

The Landlord told the Court that an AT6, being a notice that legal proceedings are going to commence, was served on the Tenant “intimating the tenancy would terminate on or before 17 February 2014.” The grounds for recovery specified in the AT6 all related to arrears of rent or persistent delays in payment of rent which grounds are detailed in 8, 11 and 12 of Schedule 5 of the Housing (Scotland) Act 1988. These grounds, unfortunately, in the actual assured tenancy agreement entered into between the Landlord and Tenant were only referred to by reference to the 1988 Act.

In Section 18(6) (b) of the Housing Scotland Act 1988 it quite clearly provides that the sheriff shall not make an order for possession of a house let on an assured tenancy unless the terms of the tenancy agreement make provision for it to be brought to an end on the ground in question.

The tenancy agreement in this case at Clause 1(g) states:

“If any of the grounds referred to in Grounds 8, 11, 12,13,14,15 or 16 of Schedule 5 of the Housing (Scotland) Act 1988 occur, the Landlord shall be entitled not only to recover from the tenant all loss or damage caused by the Tenant which they may hereby sustain and all rents due and which may become due and in addition may forthwith put an end to this lease and may commence proceedings for possession.”

The presiding Sheriff argued this clause was badly written:

  1. It mentions but does not specify what the grounds in fact are and
  2. It wrongly assigns to the Landlord the right to “forthwith” put the lease to an end if these grounds occur, but in fact the lease can only be terminated during its term on an order for possession granted by a Sheriff.

This case highlights the importance of drafting a lease very carefully to avoid the Landlord suffering consequences. With the Sheriff dismissing this case, the Landlord will now only be able to end the tenancy by giving a Notice to Quit at its term-not very satisfactory when the Tenant is already in arrears of rent.

We must emphasise that Landlords and Agents should always seek advice at an early stage in their negotiations to ensure that their leases comply with all legal requirements.

I have many years of experience drafting leases and if I can help, please contact me by email at rjl@mitchells-roberton.co.uk or by telephoning 0141 552 3422.

Clare’s Law

A scheme that gives people the right to know if their partner has a history of domestic violence will be piloted in Aberdeen and Ayrshire. It will start in late November and run for six months.

The Scottish Disclosure Scheme, also known as Clare’s Law, is named after Clare Wood, a mother of one, who was murdered five years ago by her ex-boyfriend George Appleton at her home in Salford. Unbeknown to Clare Mr Appleton  had a history of violence against women, including repeated harassment, threats and the kidnapping at knifepoint of one of his ex girlfriends.

The chosen areas and dates for the Scottish pilot  project  were announced on 18th August at the latest meeting of the multi-agency board set up to develop the scheme. This body includes representatives from Police Scotland, the Scottish Government, the Crown Office, ASSIST Advocacy Service and Scottish Women’s Aid. The areas were selected as they have a “wide and varied cross-section of the population” and include people who may benefit from the arrangement.

Police Scotland say the pilot schemes will be monitored and evaluated carefully and hopefully we will see a reduction of domestic abuse enabling the plan to be rolled out throughout Scotland next year. The scheme is already functioning in England and Wales.

Assistant Chief Constable Wayne Mawson said “I find it extremely encouraging that more and more victims of domestic abuse have the strength and confidence to report domestic abuse, however we are not complacent. I believe the introduction of the Disclosure Scheme for Domestic Abuse Scotland  will not only provide  a mechanism to share relevant information about a partner’s abusive past with their potential victims , it will give people at risk of domestic abuse the information to assist in making an informed decision on whether to continue in the relationship.”

Disclosures can be triggered by victims, families or a member of the public concerned about a person, as well as public authorities such as the police and social work. The decision to disclose will rest with a multi agency forum taking all parties’ rights and needs into account.

Justice Secretary Kenny MacAskill  said “It is only right that people in relationships  should have the opportunity to seek the facts about their partner’s background if, for example, they suspect their partner has a history of violent behaviour. Tackling domestic abuse is a top priority for the Scottish Government and we have provided record funding to tackle violence against women.”