New legal arrangements for private tenancies and court procedures

Small claims and residential leases are amongst the few legal documents that many people try and draft themselves. Over the next six months all of these will be changing, with the replacement of Assured and Short Assured Tenancies by a new single “private residential tenancy” (potentially from the end of the year) and the creation of Simple Procedure for civil court claims up to £5,000 (starting 28 November).

Though the style tenancy documents are still under consultation, it is clear that the new paperwork in both areas is designed to be used by the public without needing a solicitor. There is even to be a “Model Tenancy” so landlords will have a standard lease which should be ‘good to go’ for most situations.

As a lawyer who specialises in these areas, I may not need a new career just yet however. Easy to use and understand documents is only one issue. For tenancies, decisions are needed on the various optional clauses and what best applies to the situation. For Simple Procedure, completing the form with all the needed information may still not answer whether there is a strong legal claim or a proper defence.

Although these documents should be straightforward to fill in, once you add in that the new procedures are quite different in both areas, and that tenants have much stronger rights under the new tenancy, legal advice still needs to be considered once the changes come into effect.

If I can be of any help at all please call Joel on 0141 552 3422 or email joel@mitchells-roberton.co.uk

This article was written by Joel Conn and appeared in the December/January edition of the Westender Magazine

Home Ownership Is Still The Aim for Many

The Council of Mortgage Lenders recently carried out a survey that showed home ownership as the nation’s distinct preference and aspiration and not just for financial reasons.

The research interestingly revealed that:

  • The two most popular reasons for valuing home ownership are having the freedom to do what you want and knowing that once the mortgage is repaid the property is yours. Seeing the property as an investment or an asset, or a mortgage as cheaper than renting are cited less strongly.
  • Virtually no existing home owners wish to have a different tenure in the future.
  • Private tenants generally appear to view their position as a temporary state. Around 56% of private renters would like to own within the next two years, and 71% aspire to own within ten years. Only 26% of existing private tenants would prefer to be renting in two year’s time, and 15% in ten year’s time
  • Sentiment is not the same among social tenants-57% of social tenants still want to be living in social housing in two year’s time and 46% in ten year’s time.
  • Among those who want to be home owners but are not currently, there is a substantial majority who do not feel confident that they will achieve that aspiration. Less than a quarter of those who are currently not home owners but want to be in two year’s time , believe it is likely.
  • The disparity between hope and expectation is particularly marked among younger age groups-fewer than half of those aged 18-24 who want to be home owners in ten years think it is likely that they will be.

I have been a property lawyer for 25 years and if want any specialist advice regarding buying or selling of property please contact me Alison Gourley on 0141 552 3422 or by email ajg@mitchells-roberton.co.uk.

A Judge’s strongly worded advice for separated parents

A senior family law judge, Lord Brailsford recently decided a child contact case concerning a nine year old boy, which had been going on for some seven years.

The father in this case is from Tunisia, but has lived in Scotland for more than ten years and is settled here with a steady job. The mother, who is Scottish, met him in Edinburgh in 2004 and they were married in Tunisia in 2006. Their son was born in 2007. The couple separated in 2008 and divorced in 2013. The boy’s Dad had not seen him for about 3 years when Lord Brailsford made his decision. The boy’s Mum had insisted that contact wasn’t in her son’s best interest and the boy was adamant that he did not want to see his father.

The mother was scared that the boy’s father planned to abduct the child and take him to Tunisia, from where it would be very hard to bring him back to Scotland.  Lord Brailsford in connection with the mother’s views concluded that her “expression of fear of abduction of her son is genuinely held. I do, however, go further and express the view that even if that belief is genuinely held there is no objective or rational basis for it at the present time.” He then set out various protective measures such as passport surrender and Port Alert Orders which could prevent any such abduction.

Lord Brailsford considered statements by the child in the past that he did not want to see his father but he also took into account expert evidence of a child psychologist Professor Tommy MacKay who told the court that he believed the boy’s views about contact with his father to be genuine “but they are not independently formed views.”  He stated that “The child had clear knowledge of his mother’s negative views towards his father.” The psychologist understood that the child would be extremely concerned that any acceptance of his father by him would cause upset to his mother and this would be something that he would be anxious to avoid doing.

Professor MacKay further cited evidence that children “who do not have contact with both parents have, as a group , a greater propensity to experience difficulties academically, psychologically, emotionally and in future relationships in later life”.

Lord Brailsford clearly placed some weight on this evidence saying “I would be reluctant to impose direct contact upon a child who did not wish it but for the overriding requirement to have regard to his best interests which must in my opinion, include his psycho-social development. I have to weigh the potential for adverse effects in later life against a child’s currently expressed opinion against contact.”

Lord Brailsford decided that it was in the best interests of the boy for direct contact with his father to be re-established. He carefully considered a plan and made an order for contact by Skype or similar first of all, for three or four sessions after that and then some supervised face to face contact to take place fortnightly for around three months and he urged both parents to put the past conflict behind them in the greater interest of the child’s welfare. If all that was successful then the Dad could go back to having regular unsupervised contact.

Lord Brailsford also commented that what was causing the child stress was that “he felt the need to please his mother and did this by expressing views which were hostile to his father and to contact with his father. This is a very serious matter which has the potential both to cause harm to the child and to affect the chance of future contact operating successfully. It is regretfully, in my experience, a not uncommon feature of contact disputes, particularly those of an intractable nature.”

Lord Braillsford gave this advice to separated parents “In my opinion the best and possibly the only, way to address this lies in the hands of the parents. They have in my opinion an overriding duty to put aside their antipathy, distrust or resentment held towards a former spouse in order to ensure that their child is not exposed to the sort of risks identified by Professor MacKay in his evidence.”

This is strongly worded advice and separated parents should take it on board.

If you would like more information or advice about the issues raised in this case or about contact arrangements generally please get in touch with our family law team who will provide you with a guiding hand to help you best protect the welfare of your children.

A Move Too Far

When we set out to live “happily ever after” we are certainly not considering that “ever after” might end sooner than expected and that “happily” is only a word and not necessarily an enduring experience. But as life would have it “ever after” does sometimes end in divorce and difficult child contact issues, with one or both parents suffering from a no win choice- stay together for the sake of whatever can be justified as a good reason to stay together, or head towards divorce and suffer the effects of what divorce may impose not only on the psyche of the child but also the parents.

When a relationship breaks down, wanting to start a new life is an understandable goal for those involved. The question of contact with children can be problematic but if one parent decides they want to start afresh in a new county, country or even on a new continent aiming to take the children with them, then the effect on contact with the children for the non-resident parent can be huge.

So when a couple split up what rights do they have if they wish to relocate or indeed if they want to prevent their children being removed abroad?

In theory ,any parent with parental rights and responsibilities under the Children (Scotland) Act 1995 can under Scots law move a child anywhere within the UK without the consent of the other parent but if the matter is disputed a court decision is required. Any parent wishing to remove their child from the UK must obtain the consent of the other parent before doing so, if that parent also has parental rights and responsibilities. This is the case whether travelling internationally for a holiday, to visit family or to relocate permanently.

If the consent of the ‘left behind’ parent is refused then an application must be made to court seeking permission to relocate with the child out with the UK.

A court’s decision to allow a relocation involves a delicate balancing exercise in which the welfare of the child is always the paramount consideration. It supercedes that of the resident parent being in closer proximity to a support system or a job with increased pay.

The facts and circumstances of each case will be taken into account.

  • A reasonably and carefully framed child relocation plan is essential and it must be one which is realistic.
  • The threat of relocation on contact with the non resident parent is of considerable importance. The application for leave to remove must be genuine and not a ploy to exclude the other parent from the child’s life.
  • The effect of relocation on the child’s contact with extended family in Scotland or the benefits of having a relationship with family in another country will also be taken into account
  • The child’s wishes, depending upon the age of the child and their level of maturity will also be taken into account but are unlikely to be determinative. Children over 12 years are presumed mature enough to give their views but there is some case law to suggest that children younger than that might still be able to have their thoughts taken into account.

If a parent were to relocate without a specific order or consent of the other parent there would still be a remedy for the ‘left behind’ parent. Such relocation of the children would be a wrongful removal of the children under the Hague Convention on the International Aspects of Child Abduction. A removal is wrongful when it breaches rights of contact in the place where the child is habitually resident.

If you are planning to relocate or if you fear that your former partner is making plans to leave the country with your child, advice at the earliest stage should be sought. Our Family Law Department can help – http://www.mitchells-roberton.co.uk

Don’t let your Business Be Disempowered

Powers of Attorney are most often talked about in the context of personal matters but they are equally important in business. Some years ago a partner in a well known law firm of Glasgow solicitors fell unexpectedly and seriously ill. He spent six weeks in intensive care followed by months of home convalescence before happily making a full recovery. At their first meeting after the onset of the illness, his fellow partners looked at each other and at the various routine papers which required his signature, and realised they had fallen into the trap of failing to offer to themselves the advice which they would automatically have given their clients.

So please let me emphasise that if you are a sole trader or run a small business putting in place a Power of Attorney could be vital to the survival of your business if you suffer health or incapacity problems. Let us suppose you are a sole trader and you have been in an accident and are unable to run your business. If the business accounts are in your name only and you have no Power of Attorney in place no one else would be able to access them, but bills will still have to be paid and so on. This could affect the credit rating, reputation and customer relationships of the business, let alone any family relying upon your income.

To avoid this, all that is really involved is a straightforward legal document saying who would administer the business if you became incapable of doing so. If you do not have a Power of Attorney in place any family member or friend who wanted to step in to run your business would have to apply to the court for Guardianship which is a slow procedure and can take up to a year by which time your business may be no more.

If you are a business person it’s likely that you believe a Power of Attorney is a good idea so I urge you to take it further and find out more. Please contact me Andy Lindsay by email at al@mitchells-roberton.co.uk or by phone on 0141 552 3422

Latest Information Regarding Property Prices

The Registers of Scotland have published the following information regarding property prices in Scotland.

  • The average price of a residential property in Scotland has shown an increase of 0.6% during the second quarter of the financial year 2016/2017 compared with the same period in the previous year, with the highest rise of 9.7% being reported in East Renfrewshire.
  • The highest percentage fall was recorded in Aberdeen which reported a decrease of 7.5% in average price compared to the same quarter the previous year to £200,790
  • The volume of residential property sales in Scotland in the quarter July to September was 269,824- a decrease of 1.1% compared to the previous year.
  • Edinburgh recorded the highest volume of sales at 3,334, a fall of 3.2% compared with the same quarter the previous year.
  • The total value of sales across Scotland registered in the quarter July to September decreased by 0.5% compared to the previous year to just under £4.2 billion.
  • The City of Edinburgh was the largest market with sales of £806.2m for the same quarter, an increase of 2.3% on the previous year.
  • Aberdeen showed the largest decrease in market value of 31.6% to £209m compared to the same quarter last year.
  • Detached and semi detached properties showed an increase of 0.3% in the average price for these types of properties, while terraced and flatted properties decreased by 3.1% and 0.7% respectively. The average price for a detached property is £249,462 while a semi detached property is £160,903.
  • The volume of sales of terraced properties increased by 3.9%

Airbnb Boom

Founded in August 2008 and based in San Francisco, Airbnb is a “trusted community marketplace for people to list, discover and book unique accommodation around the world”-online or from a mobile or tablet. Whether a room for a night, a house for a week or a villa for a month, Airbnb connects people to unique travel experiences in more than 34,000 cities and 191 countries. It has become immensely popular over the years and has many benefits for both hosts and travellers. Hosts get to meet people from all over the world, while making a little extra money and travellers can often stay for less than the cost of a hotel room.

That said both property owners and their tenants may well find that they are either breaching their mortgage or insurance conditions or their rental agreements respectively by participating in Airbnb. Indeed this is highlighted by a recent English case Iveta Nemcova v Fairfield Rents Limited (2016). A tenant asked the First-Tier Tribunal whether she was contravening a clause of her lease agreement by renting out the property using Airbnb. The Tribunal found in favour of the landlord and the tenant appealed to the Upper Tribunal.  She argued that there was no specific term in her lease that said she could not sub-let but only a clause saying that the property had to be used  as “a private residence.” The tenant contended that as the lease referred to “a private residence” rather than “the private residence” that she could let out the flat, as it did not need to be the tenant herself occupying the property providing it was being used by someone as “a private residence”. The decision of the Upper Tribunal was that Airbnb short term lets were lacking the necessary degree of permanence to amount to using the property as “a private residence” and found in favour of the landlord.

Of course this is an English case and is not binding in Scotland but tenants here should be equally aware and check their leases. In Scotland in terms of the Housing (Scotland) Act 1988 Section 23, there is an implied condition that a tenant in an assured or short assured tenancy can only sub-let or assign his or her lease with the landlord’s consent unless the lease specifically states otherwise. So if a tenant in Scotland wishes to let out property he or she would need to examine the stipulations of the lease for an express clause and if there is none then the landlord’s permission should be sought. The landlord can refuse and there is no need for the refusal to be reasonable.

A property owner or a landlord considering using Airbnb should seriously give thought to the implications before doing so. A property owner with a mortgage may find that the lender’s conditions prohibit the owner from letting out the property at all. The landlord with a mortgage may only be able to let out his or her property using a short assured tenancy. Breaking these terms could mean the agreement is invalidated and risk the mortgage being called up.

Extremely importantly a property owner or landlord’s insurance policy will not normally cover short term lets or subletting, so if anything goes wrong the policy may not be valid. Also depending on the letting, an HMO licence may be necessary and if the letting or subletting amounts to a change of use then planning permission may be required.

If you would like more information please contact Alison Gourley by email on ajg@mitchells-roberton.co.uk or by calling 0141 552 3422.