Why are individuals in Scotland reluctant to put a Power of Attorney in place? The reality is that many are concerned about losing control over their finances and assets. In fact, most people put a Power of Attorney in place as a rainy day document and their Attorney does not have authority to act straight away. So when is a power of attorney effective in Scotland?
I don't want my Attorney to act immediately - what do I do?
Most people grant a Power of
Section 75 Agreements have been part of the planning process for some time. In recent years their use has increased as a means of addressing issues which may flow from a planning application. The Scottish Government issued guidance setting out Policy Tests which must be met before a Section 75 Agreement is to be used. Section 75 Agreements do not replicate planning conditions, instead they introduce planning obligations.
The Policy Tests are as follows:
The Scottish Housing Regulator assumed full regulatory powers on 1 April 2012, but what does this actually mean for RSLs in Scotland? And do they need consent from the Regulator before any disposal of land?
Section 107 of the Housing (Scotland) Act 2010 now replaces Section 66. RSLs must obtain consent from the Regulator prior to any disposal of land, unless the type of disposal is specifically exempted or is covered by General Consent.
This all sounds familiar, but there is something new:-
Where a
We are often asked - do I need an employment contract? The employment status of an individual isn't always easy to answer, but is important for a number of reasons. Certain legal rights only apply if an individual is an employee: e.g. the right not to be unfairly dismissed and the right to receive a statutory redundancy payment. If you don't have an employment contract is that a problem?
By law an employee is defined as an individual who has entered into or works under
In October 2013, the UK government plans to make changes to housing benefit. How will these housing benefit changes affect landlords in Scotland?
The Government intends to introduce a single 'universal' credit which will be paid to claimants of working age. The idea is to simplify the system for claimants, and make it easier for staff to administer. The new benefit will begin to be introduced in 2013 and will be completely phased in by 2017.
What will this mean in practice?
What do you know about prenuptial agreements. Donald and Melania Trump have one, as do Michael Douglas and Catherine Zeta-Jones. But what are they? Should you have prenuptial agreement. Are they enforceable in Scotland? Or are they just for the rich and famous?
There were 29,070 marriages in Scotland during 2014. Considering this, and the fact that the average age at which people marry for the first time has increased by over two years in the last decade (to 32.9 years for men and 31.0
Debt Recovery Scotland - Where an order for payment is granted in a court or tribunal, this will not automatically result in payment. The order will need to be enforced against the debtor and his or her assets. One method of enforcing an order for payment is by executing an arrestment.
What is an arrestment?
A form of diligence where a creditor with a court order can arrest the debtor's moveable property where that property is in the hands of a third party, e.g. arrestment
We are regularly consulted when there is a dispute regarding a building contract. In order to advise the client, we ask to see the signed contract, only to find that the contract was never actually executed (signed) by both parties. Sometimes there is a letter confirming acceptance of a tender, but the actual contract terms have never been signed. Clearly this presents problems determining exactly what obligations there were on the contractor and the manner in which these were breached, leading to disputes. How important
We blogged about the Scottish Government's current consultation on letting agents charging premiums and possible amendments to the definition of a premium. Since then, Shelter launched a campaign encouraging tenants to reclaim your fees. Shelter wants the Scottish Government to clarify the legislation to make it clear to tenants, landlords and agents just what charges are permitted, if any, over and above rent and a security deposit. So if you are letting agents - can a tenant reclaim fees?
So what is a premium?
The
Are lenders becoming more difficult with RSLs about seemingly routine property matters? In recent times, it has seemed to me that the answer is ?yes?.
I often advise clients on the following matters:-
- the grant of leases of office premises ;
- the preparation of Deeds of Conditions for?new affordable housing developments;
- the grant of deeds of servitude and?wayleave rights to utility companies for new developments.
These are routine types of transaction, however, once the wording of the lease or other type of
Concerns over tendering for work under the City of Edinburgh Council Statutory Notices Scheme has resulted in an independent investigation being carried out by Deloitte. Until the investigation is complete all non-emergency statutory repair work has been suspended. Only emergency work, or work which has already started, will be dealt with. You can check the Council's website to find out what is categorised as an emergency:
Edinburgh City Council Statutory Repairs
What if a Statutory Notice is in place but the work has not started?
At exam times we are regularly asked - when does financial support end? This question is asked by both custodial and non-custodial parents.
Tense teenagers and anxious parents are thinking about important qualifications. Good results can secure places at colleges and universities - but that can lead to worries about the cost of further education and how to protect children from debt.
Separated and divorced parents should not make the mistake of thinking that they only have an obligation to pay for their child until
We are frequently asked - do I need to change my Will after divorce? The focus is usually on immediate worries, such as the arrangements for the children, the household bills and the family home. Although it is necessary to get advice about such matters, it is equally important to think not just about the past, the present and the immediate future, but also to plan ahead and think about how divorce and separation can affect your Will.
We are often asked by charities: what legal status do volunteers have? And how they should be recruited? It's increasingly common for school leavers and the unemployed to undertake volunteering to boost their CVs.
Although volunteers aren't covered by discrimination legislation it's sensible to adopt the same recruitment practices as paid employees, including a robust paper trail documenting every decision made in the process:
Decisions should be recorded clearly and in an objective manner to minimise disputes
Landlords in the private rented sector in Scotland must register with their local authority for an HMO licence and must be deemed fit and proper persons. Additionally, where properties are being let to multiple occupants, the property itself also requires to be licensed. Where a landlord has a number of different HMO properties then the landlord's behaviour at one property can impact on the licensing of another. So make sure you don't lose your HMO licence!
A recent court case showed that landlords are expected
Is it possible to have an agreement to agree? From the bus in the morning, to that mid-afternoon pick-me-up coffee, we constantly enter into informal "contracts" or "agreements" with others. These transactions benefit from certainty. Pay £1.80 and you will receive a bus ticket. Simple. But contracts can be much more complex than this.
We still see many formal contracts with startling degrees of informality and uncertainty in the drafting.
The question of how much certainty a contract must have to be enforceable was tackled
In basic terms, 3 parties are involved in collateral warranties:
- A contractor
- A beneficiary (third party)
- An employer
Collateral warranties provide a contractual link between a third party (the beneficiary) and a contractor which has carried out certain works or provided certain services for the employer.
So when is it appropriate to use one?
It is often appropriate to expect collateral warranties when:
The Scottish Government has approved its first Tenancy Deposit Scheme! There are now vital dates in place that you really can't ignore. Ministers have announced that the scheme proposed by Letting Protection Scotland has been given the green light to become operational under the Tenancy Deposit Scheme Scotland Regulations 2011, with effect from Monday 2 July 2012.
Meanwhile, two other schemes, namely SafeDeposits Scotland and MyDeposits Scotland, are hoping to be approved and ready to commence on 2nd July. All being well, landlords will
If you are taking holding deposits and reference fees, is this legal? Letting agents charge a number of different types of fees to tenants, under a variety of names such as:
- 'holding deposits'
- 'reference fees'
- 'administration fees', to name but a few
The current legal position under the Rent (Scotland) Act 1984 is that it is an offence to charge or receive any premium (over and above rent and a security deposit of no more than two months rent) as a condition
Clients often tell us they are reluctant to make an application for guardianship of a vulnerable relative or friend as they have heard the process is expensive and could cost thousands of pounds. In fact, everyone who applies for Welfare or Financial and Welfare Guardianship in Scotland is automatically entitled to Legal Aid from the Scottish Legal Aid Board, regardless of their financial circumstances.
What is Legal Aid?
Legal Aid provides help with the cost of court actions. Usually, a financial assessment is carried out
Child maintenance support changes will come into effect in 2012 which will dramatically alter the way child support is collected. The objective is to give both parents a financial incentive to make voluntary arrangements.
The options are:-
1 A Family Based Arrangement - parents agree the amount and frequency of payments. This can mean alternatives to monetary payments e.g. child care vouchers.
2 A Minute of Agreement in Scotland or a Consent Order in England and Wales. Both reflect that parents have come to a
Landlord Electrical Safety Checks - do you know your legal duties regarding electrical requirements? In the private sector it can be bewildering when it comes to knowing what your legal obligations are when carrying out electrical safety checks on electrical installations and appliances within rented properties.
There are two main legal obligations that a landlord should be aware of.
Occupancy Rights and the Matrimonial Home - legal advice following separation.
Many people are concerned about their occupancy rights, i.e. their right to remain in the matrimonial home.
Do I have to move out of the property?
Where couples are married, a spouse is under no obligation
Just what are the risks when recruiting via social media? ACAS now estimate that up to 25% of employers use social media as part of their recruitment process to vet job applicants. By taking a closer look at social media as a recruitment tool in general, are you aware of the legal implications for employers?
The massive growth in popularity of social media can't be overstated. It's perhaps not surprising that employers are tempted to view the online profiles of job applicants. There are, however,
In March 2012, the Government announced it was seeking views on whether a system of no fault dismissals for businesses with fewer than 10 employees could work. The Government also announced the publication of a "call for evidence" on whether current dismissal procedures are too complicated and burdensome for employers, and whether the process is in need of a radical makeover.
George Osborne hinted at the introduction of such a system when he addressed the manufacturers' association EEF in March 2012. This could potentially mean,
If you are a Scottish landlord then you should beware of landlord legal advice on the internet. The internet can be a confusing place for landlords - with many unaware of the differences between the Scottish and English legal system. So should you believe internet landlord legal advice?
Scottish landlords can be easily misled by websites targeting English landlords referring to English procedures, which can leave the landlord vulnerable, particularly in the area of eviction. Some of the key differences are set out below.
Scotland
The Scottish Government recently published its Social Care (Self-directed Support) (Scotland) Bill, which aims to make self-directed support in Scotland a mainstream choice for those receiving care in Scotland. The Government has pledged almost £40 million over the next three years to support the rollout of self-directed support throughout Scotland.
What is self-directed support?
Self-directed support is designed to give those who receive care (supported persons) more power to direct their own care and support, to make more informed decisions about their care and to control
When selling a Right to Buy property, you need to check if the cost floor is relevant. Do you know what the cost floor is?
The cost floor is the accumulative total spent for a property during the last ten financial years (from date the application to buy was received).
This spend includes:
It should also be remembered when calculating the relevant cost
If you're living in Scotland and you don't currently have a power of attorney, are you sure that's for the best?
In the absence of a Continuing and Welfare Power of Attorney there is a risk that decisions about your well being and your assets could be taken by people who believe they know what is best for you, but in reality don't!
The Adults With Incapacity (Scotland) Act 2000 requires any named Attorney to act in accordance with the 5 principles of the Act:
Are you aware that the Private Rented Housing (Scotland) Act 2011 is proposing that all landlords will have to provide a tenant information pack in future?
The aim of this Act is to support responsible landlords and address more effectively the problems caused by landlords who act unlawfully, by strengthening the regulation of the private rented sector. One of the proposals within this Act was the introduction of a 'Tenant Information Pack' for all private sector tenants.
The Government have now indicated that they wish
A separation agreement in Scotland is often a useful document as during separation most couples want to initiate some discussion in relation to the division of the marital assets, or have put in writing what has already been agreed between them. Either way, your solicitor is likely to recommend entering into a Separation Agreement. So, what is a Separation Agreement in Scotland and what needs to be agreed before one is entered into?
What is a Separation Agreement?
Sometimes referred to as a 'Minute of
We have published a number of blog articles dealing with the legal consequences of a separation, divorce and child contact matters but you may want to know 'how do I get married in Scotland'
In Scotland, prior to the marriage ceremony, both parties must submit a Marriage Notice form to the registrar of the district where the marriage is to take place. Once the Registrar is satisfied that there are no legal impediments to the marriage (i.e. if someone has been married previously, that a
When recruiting new members of staff it is important for employers to understand which individuals have permission to work in the UK.
Who automatically has the right to work in the UK?
- British citizens (this does NOT include British Dependent Territories citizens and British Overseas citizens)
- Those who have the right of abode in the UK
- Those who have indefinite leave to remain in the UK
- European Economic Area (EEA) nationals & Swiss nationals and their spouses/civil partners
- Commonwealth nationals
Have you considered if it is time to reorganise your charity's constitution? Does your charity's constitution enable the charity trustees to:
- make changes to keep it relevant or,
- whether it is so outdated that the charity can no longer be true to its original spirit.
Charities with an outdated constitution may find that they are unable to make proper use of their charitable funds.
Registered charities must seek the prior consent of OSCR before making the following fundamental changes:-
Readers of our blog will recall that the government is currently undertaking a reform of the Employment Tribunal system which will involve looking at workplace mediation as a way to help resolve employee disputes. As part of this process it has been announced that a pilot scheme for two regional mediation networks will be set up in Cambridge and Manchester for small to medium-sized enterprises (SMEs). The pilots will run for 12 months and, if successful, the Government will consider introducing them into other areas
On 1st February 2012 changes to the succession thresholds came into force. The legal changes increase the maximum property and cash values which can be transferred to a surviving spouse or civil partner where a person dies without a Will in Scotland. They also increase the threshold for small estates (where a Sheriff Clerk can assist with the administration of an estate) from £30,000 to £36,000.
What are the new rules?
Where a person dies without a Will in Scotland, their surviving spouse or
When parents are going through divorce and separation - what happens to the child benefit? A child can often divide his or her time between two households over the course of a week. This can be an ideal arrangement, allowing the child to maintain a close relationship with both mum and dad. There can however be unforeseen financial implications if either or both parent receives benefits.
Shared care does not mean shared benefits. This can cause significant practical difficulties where one or both parents rely
In these times of economic strife where house prices are rising faster than your income, it may seem difficult to imagine being able to afford your own home. We are asked many times - how can I get on the property ladder in Scotland?
There are a number of schemes available to assist with buying a property:-
Shared Equity
Is there a difference in offering divorce advice for women? There are a number of publications offering advice for men going through divorce, and just as many tailored specifically for women.? But in Scotland does the client?s gender really affect the advice tendered by a lawyer?
Divorce can be difficult and emotional and without good legal advice, mistakes can be made that are not easily rectified.? Typically solicitors provide divorce advice for men and women, following a marital breakdown on two main issues;
Children:
Whether
From 1st January 2012, charities that are companies or industrial and provident societies (IPS) can apply to the Office of the Scottish Charity Regulator (OSCR) to convert to a Scottish Charitable Incorporated Organisation (SCIO). Previously it was only unincorporated associations or trusts who could take advantage of this change. We help Scottish Charitable Companies become SCIOs.
However, the conversion of a company or IPS to a SCIO may only take place if:
The Private Rented Housing Act 2011 in Scotland will introduce changes (including changes to the HMO licence) which will affect all landlords in the private rented sector, with its various parts coming into force in stages. The following provisions will amend the existing Houses in Multiple Occupation (HMO) licence regime and are due to come into force on 31 January 2012.
Firstly, a local authority will have the power to refuse to consider an application for an HMO licence, where it considers that occupation of
At the start of a New Year, you may be turning your thoughts to putting your affairs in order. As part of this, you should consider granting a power of attorney in Scotland. Read on for our top 5 questions and answers on Powers of Attorney.
1. What is a Power of Attorney?
Japanese Knotweed is innocuously - even exotically - named but can prove to be a persistent and costly problem if it is found on your land. As an extremely invasive species, Knotweed can take over gardens, as well as potentially damage buildings, if not eradicated properly. Do you need legal advice for Japanese Knotweed in Scotland?
What can you do if Japanese Knotweed is spreading to your property?
Knotweed can also prove to be a significant problem if it is growing on a neighbouring property
Are you aware of the issue of indirect discrimination in recruitment practices? In January 2012, the Northern Ireland Industrial Tribunal found in favour of a mum who had been discriminated against by not being shortlisted for a post because she did not have the required experience.
Although it's a decision from a different jurisdiction, it is a useful reminder that if organisations have strict experience requirements in place when it comes to shortlisting candidates, they should be mindful of indirect sex discrimination claims.
In Summary:
Many landlords are unaware of their duties under the Homelessness (Scotland) Act 2003 when raising court proceedings against a tenant for eviction. What are a landlord's duties when evicting a tenant?
Section 11 of the Act states that;
a landlord when raising proceedings for repossession must give notice to the local authority in whose area the property is situated. Said notice should be given when the court action is raised against the tenant.
It is not sufficient for the landlord to simply write to the
As an employer (or employee), what rights do pregnant employees have? Are you not sure how to deal with time off for your employees? Our brief checklist should help.
1. Sick Leave
- Pregnant employees have the same rights to paid sick leave as all other employees (apart from the last four weeks of pregnancy). If an employee is ill during their pregnancy, they should still follow their employer's normal sickness reporting procedures. If they qualify, they will be entitled to Statutory Sick Pay (SSP).
Do you know how to get a quick divorce in Scotland?
There are two ways you can apply for a divorce in Scotland. The first is the ordinary divorce procedure (used if there are children from the marriage under the age of sixteen and/or a financial claim is being made) and the second is the simplified divorce procedure, often referred to as a quick divorce.
Simplified divorce procedure (quick divorce)
The process has been designed for someone to apply for a quick divorce in Scotland
Ordinarily gifts are handed over, thanks are expressed, and the parties move on with no further thought to any legal implications. But what if that 'present' is a large cheque or valuable item? What is the difference between a gift & a loan? It depends on the circumstances and the relationship between the donor and donee. If you are unsure, put it in writing!
A case in England involving Leonard Taylor and the executor of his late partner Doris Luker is worth noting:-
The procurement regulations set down the rights and remedies available to unsuccessful tenderers who have suffered or are likely to suffer loss as a result of a breach of those regulations.
Where the aggrieved tenderer can show that a breach has occurred the court can:
However the regulations only apply to works, services and supplies contracts over certain values.
Does this mean that a court action cannot
With Christmas fast approaching, thoughts turn naturally to social events. It's the time of year when most employees feel they can look forward to a slowing pace of work and the office Christmas party. Most workplaces will have a function of some sort to celebrate the festive season, whether it's a lunch or dinner at an external venue, or something in the business premises themselves. It is often seen as a good way to boost staff morale and make employees feel appreciated. However what can
