ISSUE 26: WINTER 2016

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We are delighted to announce that we have received recognition in the newly published 2017 edition of Chambers UK, a leading independent guide to law firms. Five practice areas and three lawyers within the firm have received recommendations for their expertise in their field.

Jamming in Oxford Street’s trendy 100 Club might not be considered a natural habitat for solicitors, but it certainly suited TWM, who won 2016 Law Rocks, the UK legal battle of the bands competition, on 6 October.

The TWM band “Totally Without Merit” beat off competition from five other law firms to be crowned top legal rockers! On lead vocals was TWM trainee Charlotte Donald with the rest of the band including James Acres (guitar and vocals), Will Macauley (bass guitar), Sarah Marchant and Fiona Buckland (backing vocals), Dave Rowlands (drums) and Sam Fisher (keyboard).

Their 25 minute set included songs from Alannah Myles, Kelly Clarkson, Christina Aguilera and Heart.

The other winners on the evening were the Law Rocks beneficiary charities. In promoting music education for

TWM Solicitors rocks to the top in UK legal battle of the bands

Improved rankings and recommendations for TWM Solicitors in independent legal guide

Matthew Truelove, Managing Partner at TWM Solicitors, said: “TWM has, throughout its 200 year history, been known for providing the highest quality legal advice, coupled with an unrivalled level of personal service to our clients. We are very proud once again to have this recognised by independent review.

“We work with businesses and individuals across the South East and beyond, and our reputation continues to grow. Our clients are central to everything we do. We are extremely pleased with the latest rankings we have received from Chambers UK and the endorsement this gives to the service we are so proud to deliver.”

The news comes during a very positive year for TWM. Other highlights for the firm over the past 12 months include our merger with Jacobsen and Co in Fulham, an accolade at The Lawyer ‘Business Leadership Awards’, while The Lawyer Magazine’s UK 200 survey saw TWM climb the rankings table for a third successive year, and TWM received recommendations for ten of our solicitors, as well as a host of practice areas, in the 2016 edition of the Legal 500.

under-privileged children through a network of charities since 2009, almost £1 million has been raised.

Charlotte Donald said: “We honestly didn’t expect to win, and it was a close call. Only half a point between first, second and third. I think it helped that we were shrewd in our choice of set list – a little bit for everyone. I did notice during Alone by Heart that the lead singer of another competing band was right at the front singing his heart out, and I thought this bodes well!”

Law Rocks is a global event, with concerts taking place not just in London but also Los Angeles, San Francisco, Sydney, Singapore and New York. The winners of all the concerts during 2016 will be invited to the Global Legal Law Rocks in 2017.

Ranked Departments Ranked Lawyers

Totally Without Merit pictured here at Law Rocks

Adrian Price (Real Estate)

Adrian O’Loughlin (Private Client)

Patrick Stewart (Employment)

Employment

Family / Matrimonial

Litigation

Private Client

Real Estate

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For the same reason, a longer period of letting, e.g. under an Assured Shorthold Tenancy agreement was said to be unlikely to amount to a breach of this kind of use clause (although the tenant will need to check what the lease says on subletting).

This decision is significant for flat/maisonette owners who use their property for AirBnB style lettings and it is recommended that such owners investigate the use clauses in their lease to understand whether or not they may be in breach.

In turn, this is important because the Landlord may be able to start a procedure to seek to terminate the lease (also known as ‘forfeiture’) if the flat/maisonette owner is in breach of their lease.

If you have any concerns or queries arising out of this article, please contact Simon Burdett-Dixon who will be able to assist with these kinds of issues.

DISPUTE RESOLUTIONAirBnB style letting may be putting you in breach of your lease

The use of residential property for AirBnB style lettings has surged in popularity in recent years with AirBnB alone accounting for c.2 million available properties worldwide, including nearly 80,000 based in the UK.

Long lease owners (e.g. flat/maisonette owners) will want to ensure that using their property in this way does not put them in breach of the terms of their lease. This is of course in addition to the other considerations (e.g. planning, income tax, etc.) faced by freeholders and long lease owners alike who use their property for this type of letting.

The question of whether AirBnB style letting could amount to a breach of a long lease has recently come before the Courts (the Upper Tribunal (Lands Chamber)). The lease in question prohibited use for any purpose other than ‘as a private residence’ even though it did not prohibit subletting.

The Court decided that the short-term nature of AirBnB style letting meant that the long lease owner was in breach of use clause in their lease. This was because the periods of occupation were so brief and fleeting that they could not be described as use ‘as a private residence’, by the AirBnB occupiers, which would require greater element of longevity.

Simon Burdett-Dixon: simon.burdett-dixon@twmsolicitors.com

Rules’, which determine what happens if you die without a Will in place. We should contrast the Intestacy Rules’ disregard for stepchildren with the new additional Inheritance Tax relief, which will allow people to give a share of their main home tax-free on death to their descendants. Here, the Government has been perhaps more forward-thinking in including stepchildren within the definition of ‘descendants’, which is good news for families slightly outside the traditional ‘nuclear’ mould.

What if you are happily married to a second (or third) spouse, and want to ensure that he or she enjoys a comfortable life if you die first, but ultimately would like all or the bulk of your assets to pass to your own children? This is something we encounter often; many of our adult clients come to us in their fifties or sixties, with their own adult children whom they want ultimately to benefit, but a desire also to look after their spouse or partner. They may well be very fond of their stepchildren but want, in the end, for their estate to pass down their own bloodline. This is another situation where making the right Will is crucial.

PRIVATE CLIENTEstate planning for blended families

Four in ten marriages in the UK are now estimated to end in divorce, and in around a third of marriages, at least one of the parties will have been married before. It is little surprise, then, that we are increasingly being asked to consider and advise on the position of stepchildren in relation to Wills and estate planning. Thankfully, the fairy tale image of the ‘wicked stepmother’ (or, more rarely, stepfather) is largely confined to fiction; we see many very happy and harmonious ‘blended’ families.

One of the most important things to point out is that if you want to leave anything on your death to your stepchildren – be it an item of your personal property, a defined cash legacy, or a share of your net estate - you must make a Will specifying this. Stepchildren presently have no rights at all under the ‘Intestacy

Laura Walkley: laura.walkley@twmsolicitors.com

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FAMILYCommunication is key to unlocking cohabitation rights

The Office of National Statistics recently revealed that there are now 3.3 million cohabitating couple families in the UK compared to less than half that figure twenty years ago, yet there is still little legal protection afforded to this increasing demographic.

In November 2016, Resolution, the national organisation for specialist family solicitors, hosted the National Cohabitation Debate at the Law Society which provided a platform for the discussion of rights for unmarried couples.

Echoing his on-going efforts to introduce new legislation, Lord Marks of Henley-on-Thames proposed that the law in England and Wales should extend legal rights to those who choose not to marry. Conversely, it was contended that extending legal rights would create a complex path for couples whose relationship is in its infancy and could restrict individual autonomy.

The debate grappled with the challenges faced by cohabitees and although each speaker proffered a unique perspective on new legislation and its effects; they all acknowledged the urgent need for better communication of the current legal position of unmarried couples and families, whilst the debate about reforming cohabitation law continues.

The myth of ‘common law’ marriage must be dispelled by greater awareness of the fact that currently it is possible to live with someone for a long period of time, have children, own property, build a family life together, yet have little legal protection to provide for the future needs of the family.

If you are in a medium to long term relationship and you and your partner are both heavily invested in cohabitation (perhaps you have children together and a house), but you do not wish to marry, it is important to protect your position.

You can do this by entering into a cohabitation agreement which is drafted to regulate what would happen in the event that the relationship broke down. Please contact TWM if you would like to make an appointment with our team of family specialists for advice on this matter.

Kate Newton: kate.newton@twmsolicitors.com

There are now 3.3 million cohabitating couple families in the UK compared to less than half that figure twenty years ago.

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How do you obtain the bonus?

A solicitor registered to administer the scheme has to apply for the bonus. Near to the completion of your purchase, you will close your ISA account and provide a final statement confirming the closing balance to your solicitors. You will sign a declaration confirming you qualify for the bonus.

The solicitor will then confirm the timeframe for exchange and completion and apply for the bonus to be paid. The government pays the bonus to the solicitors upon approval of this request – 5 days’ notice is usually required.

For how long is this scheme available?

ISA accounts for the scheme are to be available until 30 November 2019. After that date, the Help to Buy ISA will not be available to new savers. If you open an account before then, you can keep saving until 30 November 2029. A bonus has to be claimed by 1 December 2030.

The residential property team at TWM are registered with the Help To Buy administration portal in order to process bonus requests.

RESIDENTIAL PROPERTYHelp to Buy ISA

If you qualify you can use a Help to Buy ISA to obtain a bonus towards the capital cost of the purchase of a property. The government will top up your savings by 25%. So for every £200 you save, the government will contribute £50 but the maximum bonus is £3,000 (with savings of £12,000) and the minimum bonus is £400 (with savings of £1,600).

Help to Buy ISAs are available to each first-time buyer, not each house, so if you’re buying a property with your partner, for example, you’ll be able to get up to £6,000 towards your deposit. Only one ISA per person can be used.

There are other rules. You cannot obtain a bonus for a buy-to-let property or overseas property.

Who qualifies?

• You need to be a first-time buyer

• You must be aged 16 or over

• You can use it to buy any home worth under £250,000 (or under £450,000 in London)

• You can use a Help to Buy ISA with any mortgage

Personal Allowance - he confirmed that it will go up to £11,500 next tax year (as announced in the last Budget) and reach £12,500 by 2020/21. An increase of £333.33 each year over 3 years.

The point at which higher-rate tax bites will also rise to £45,000 next year with a longer-term goal of £50,000 by 2020/21. This doesn’t do much to reverse the “fiscal drag” of recent years but is welcome.

Pensions Tax Relief - a squeeze was put on people over 55 who have accessed their pension savings, maybe in an emer-gency, from re-contributing to their fund. Payments-in will be restricted to £4,000 for anyone who has taken money out.

Pensions Scams - there will be a consultation before Christmas 2016 on clamping down on pensions scams and cold-calling. About time!

There was much more on investment, benefits, culture and heritage, housing and transport but, as far as ordinary people wanting to know how their personal finances will be affected, I’d give him 8/10.

TAXAutumn Statement - steady as she goes

I really, really, hoped that Philip Hammond would be boring in his Autumn Statement. His predecessor, George Osborne, turned this fiscal update into a second Budget in recent years and has made life in Tax a rollercoaster of change, additional work and misery for those of us having to interpret and implement changes on the ground.

Mr Hammond was quite cautious on the tax front, no major changes but little reform of previous initiatives I had put in my wish list.

I won on one front, we will have one Budget a year (again) in fu-ture with a fiscal update in the Spring. Interestingly, the Budget will be moved to the Autumn, which makes rather more sense than having it in March with implementation of measures in April – things have always been in suspense until Summer when the law is passed and retro-activated to 5 April. 2017 should be the last year with two Budgets…hurrah!

What happened?

Not a lot for individuals in the here and now. There were some economic forecasts (or crystal-ball gazing) but there were a few things which affect or reassure people:

Fuel Duty Frozen - so the “escalator” won’t make petrol/diesel any more expensive. He could have binned the escalator, but he probably needs to keep hold of as many cards as he can.

Claire Fountain: claire.fountain@twmsolicitors.com

Stephanie Sharpe: stephanie.sharpe@twmsolicitors.com

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COMMERCIAL PROPERTYVacant possession and break rights

The effective exercise of a Tenant’s break right under a lease is well known for being a minefield for commercial Tenants, where any failure to strictly observe and perform conditions attached to a break right may enable a Landlord to thwart the break to the detriment of the Tenant.

In recent years, there have been a series of decisions on the performance of conditions attached to break rights, and the recent High Court judgment in Riverside Park Limited v NHS Property Service Limited [2016] EWHC 1313 (Ch) (“Riverside”) has now provided useful guidance on the interpretation of the definition of “vacant possession” within the context of exercising a break right. The requirement for Tenants to give “vacant possession” upon exercise of a break right is commonly encountered, and in simple terms requires the Tenant to leave the premises empty and free of all of its belongings.

Previous case law had already established that security measures left behind at premises to prevent vandalism would not put the Tenant in breach of a vacant possession condition, whereas occupation of premises by contractors carrying out repair work beyond the break date would constitute a breach. In Riverside, the question the Court needed to determine was whether previous works that had been carried out to alter the premises amounted to “fixtures” which formed part of the premises themselves, or “chattels”, namely moveable items belonging to the Tenant.

In Riverside, the property was let as an open-plan workspace. Under a licence for alterations, the Tenant had installed various items including an intruder alarm, kitchen units and partitioning (the “Works”) which had not been removed by the break date.

The judge found there was no vacant possession and the break notice had failed. The Works prevented or substantially interfered with the Landlord taking immediate possession of the property on the break date. Specifically, the partitioning was comprised of standard demountable partitions, in no way fixed to the structure and considered to be for the sole use and enjoyment of the Tenant rather than providing a lasting improvement to the building.

The Riverside case provides an important reminder of the need to fully comply with conditions for exercising break rights. In particular, within the context of giving “vacant possession”, it confirms the importance for Tenants to assess what works and alterations may have been carried out during the term of the lease, and carefully consider whether or not those works may amount to fixtures or chattels, and whether they should therefore be removed in order to effectively comply with any vacant possession condition.

Adrian Price: adrian.price@twmsolicitors.com

Tenants need to assess what works and alterations may have been carried out during the term of the lease, and carefully consider whether or not those works may amount to fixtures or chattels

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Until recently, it has been the position that those working in the gig economy are not classed as workers and so do not benefit from such rights. However, the recent case brought against Uber by its drivers has proven to be a landmark case in recognising that such workers do have rights similar to employees under a contract of employment. The ruling by the Employment Tribunal means drivers are now classed as workers rather than self employed and entitled to holiday pay, paid rest breaks and the national minimum wage. It is not yet clear what impact this will have on the thousands of people working in the gig economy.

As a result of the increased number of people working in the gig economy, the government has announced that it is due to launch a research project to reveal the scale of gig working and the reasons people take it up. The announcement follows the Prime Minister commissioning Matthew Taylor, the Chief Executive of the Royal Society of Arts to review the impact of these new business models. The Taylor Review into Modern Employment Practices has announced that they will travel the country talking to employees about the UK’s labour market. It is not known when the review is due to commence but is expected to take 6 months.

EMPLOYMENTThe new gig economy

Well known companies such as Uber and Deliveroo are examples of organisations which are part of the new gig economy. Growing numbers of people are working “gigs” where they are employed for a particular task or for a specified time, whether this be as their main occupation or as an additional job to earn extra income. People involved in the gig economy have little connection to their employer and are not protected by the same rights as an employee with a contract of employment would have. On the other hand, working in this industry does provide the worker with a great deal of flexibility in being able to choose the hours they work.

Under the traditional employer-employee relationship, an employee working under a contract of employment benefits from the following rights:

• Being paid at least the minimum wage• Sick pay • Maternity/paternity pay• Holiday pay• Workplace pension • Job security• Rights under the Employment Rights Act 1996

Patrick Stewart: patrick.stewart@twmsolicitors.com

Challenger banks and alternative lenders have been providing SMEs with other routes to finance for some time. They have also been establishing similar relationships with high street banks before this scheme came into effect. For example, Assetz Capital (one of several leading P2P and crowdfunding lenders that TWM acts for and works alongside) has been in discussions with various financial institutions since it started in 2013. Indeed, since February 2015 Assetz Capital has been in collaboration with RBS so that if RBS is unable to help an SME get the funding it needs, RBS will pass on relevant details to Assetz Capital, who will work with the business to develop an appropriate loan package to suit both the peer-to-peer investors and the SME borrower.

The alternative lenders are working hard, and have been for some time, to break down barriers to finance and this new government backed scheme will hopefully provide a greater lever of information and awareness to the SME market and particularly to those SMEs who would not ordinarily look any further than their high street bank for financial assistance. With more information and exposure to the options available, it is hoped the change will boost alternative lenders, make the UK lending market more competitive and, most importantly, support the continued growth of the UK SME sector.

LENDINGBeing turned down for a loan by the bank no longer means the end of the road for a small business

The latest update arising out of the Small Business Enterprise and Employment Act 2015, on which we have written previously, is a government and British Business Bank backed scheme to address the difficulties faced by SMEs in accessing appropriate finance. The Act was designed to make the UK a more attractive place to start, finance and grow a business and this is another step in reducing the barriers that many small businesses face in their drive to innovate, grow and compete.

The SME sector is seen as being vital to continued economic growth within the UK, but seven out of ten SMEs that are refused lending do not go on to raise alternative finance, according to the Department for Business, Innovation, and Skills (BIS). In 2015, 324,000 SMEs sought a loan or overdraft, of which 26% were initially declined and only 3% of those declined were referred to other sources of help. However, on 1 November 2016 the long awaited ‘alternative finance platforms scheme’ came into practice to provide SMEs with a greater level of information and to help them access finance needed to invest and expand.

Under the new scheme, which has taken some 27 months to implement, nine of the UK’s biggest banks who reject SMEs for finance will be required to ask these businesses if they want their details shared with three finance platforms, who will then refer the otherwise rejected businesses to challenger banks and alternative lenders.

David Powell: david.powell@twmsolicitors.com

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When the ban comes into force, it will prevent new corporate directors being appointed from the date of implementation unless an exception applies. A company will have 12 months from the implementation date to replace a corporate director with a natural person and any corporate director after this date will cease to be a director.

Although it is not clear exactly what the terms of the ban will be, it may be prudent for companies to check whether they have any corporate directors on their board and consider which individuals may be suitable replacements.

BUSINESSThe use of corporate directors

Under current law, UK companies are permitted to have a corporate director on their board of directors as long as the company also has a natural person on the board.

As part of the government’s plan to encourage transparency and accountability, The Small Business, Enterprise and Employment Act 2015 is set to introduce restrictions on the use of corporate directors. These provisions were expected to come into force in October 2016 having first been introduced in October 2015. It is not known exactly when the provisions will come into force as the government is currently analysing feedback to its consultation. The government reported that a lack of transparency and accountability of those controlling a company can facilitate illicit activity, erode trust and damage the business environment. The aim on the ban of corporate directors is therefore thought to increase trust in the UK business environment and support economic growth.

It is expected that corporate directors will be banned and only permitted in certain circumstances. A questionnaire has, however, indicated that the government is considering a principles-based approach in that a company may only appoint a corporate director if all of the directors of the corporate director are natural persons and details of those persons are made public. However, these exceptions have not yet been published and it is not clear in what circumstances, if any, a company may appoint a corporate director. Furthermore, it will be an offence to purport to appoint a corporate director when the appointment is not within the scope of the exceptions.

Laura Thomas: laura.thomas@twmsolicitors.com

A great deal going on...

Julian Sampson: julian.sampson@twmsolicitors.com

DEAL NEWS

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TWM acted for the shareholders of Darenth Valley Golf Course on its sale

Leisure, Travel & Tourism: GolfSale of Darenth Valley Golf Course

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Finance: Real EstateSpecialist short term real estate

debt lending

TWM acted for a lending business in relation to a multi-million pound loan in connection with a site for new student accommodation

in Birmingham, UK

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Finance: Real Estate (Fintech)£1.5m Bridging Loan

TWM acted for Brydg, the lender, and its syndicated participants, in relation to a short

term loan to a commercial premises in Mayfair.

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TWM advised Tindle Newspapers Ltd in connection with the purchase of the entire issued share capital

of Isle of Man Newspapers Ltd.

Newspapers: Publishing£4.25m Acquisition of Isle of Man

Newspapers Ltd by Tindle

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News and Views is TWM’s quarterly newsletter for clients and contacts. The articles included in this publication are necessarily brief, and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.

TWM Solicitors is a full service law firm. Our nine office network covers Surrey, SW and Central London. Our approach centres on achieving success for our clients.

If we can help with a legal issue, please do not hesitate to contact one of our team:

Cranleigh Victoria Adams 01483 273515

Epsom Anne Fowler 01372 729555

Guildford Matthew Truelove 01483 752700

Leatherhead Mark Stevenson 01372 374148

London (Chelsea) Peter Lambert 020 3826 0135

London (Fulham) Helle Jacobsen 020 7736 6277

London (Mayfair) Jamie Berry 0330 555 4950

Reigate Demelza Patricio 01737 221212

Wimbledon Eileen Barry 020 8946 6454

For further information about TWM Solicitors, please visit our website: www.twmsolicitors.com

@twmsolicitors

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CRANLEIGH EPSOM GUILDFORD LEATHERHEAD REIGATE WIMBLEDONLONDON (MAYFAIR)LONDON (CHELSEA) LONDON (FULHAM)

Christmas and New Year TWM hosts Strawberry Tea in aid of Breast Cancer CareTeam TWM Leatherhead organised a delightful Strawberry Tea on 18 October to raise money for Breast Cancer Care, a charity close to many of our hearts. With strawberries and cream, scones, cake and tea to choose from, it was the perfect opportunity to show off our baking skills (or, in some cases, lack of skills!) to our clients, friends and family. The event was very well supported, raising over £200 for the charity. Guests were dazzled by the surprise attendance of a local magician...who added to bit of extra sparkle to the event. The total raised by the firm was £600.

Epsom & Leatherhead Young Professionals get Wine Confident!The latest TWM Epsom Leatherhead Young Professionals (ELYP) event was held on 3 November at Epsom Playhouse, in association with Wine Confidence. An ‘Introduction to Wine Tasting’ course was delivered to budding young professionals from the local area, including representatives from Menzies, Atkins, Toyota, Metro Bank, Pfizer, Downs Solicitors and Pennington Manches, to name a few.

Everyone took part in the wine tasting and we encouraged all of our guests to stay on for networking and canapes afterwards. Whilst there were some contrasting opinions of the wine, there was a great deal of positive feedback and the majority of guests left feeling like confident connoisseurs, ready to purchase their next tipple!

Thank you to Best of Epsom & Ewell for sponsoring our event and providing such great support for our budding young professionals.

For further information on forthcoming TWM events, please visit http://www.twmsolicitors.com/events.

TWM in Leatherhead used their baking skills to raise money for Breast Cancer Care

We would like to take the opportunity to wish all of our readers a very Merry Christmas and a Happy New Year.

Our offices will close at 5.30pm on Friday 23 December, and open again at 9am on Thursday 29 December.

In lieu of posting Christmas cards, TWM is making a donation to its partner charity, Surrey Air Ambulance. To date, we have raised £80,000 for this vital charity, and in so doing have funded a significant number of potentially life-saving missions.