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We aim to provide practical guidance on useful areas of busness law.  

By sfbsolicitors, Apr 5 2018 01:46PM

Have you recently bought a new build and noticed that there are defects? If the answer is yes, then we can help you claim compensation and damages in relation to the repair costs and losses you have suffered.

Statistics show that more half of the buyers of new homes have experienced major problems with their properties, according to research, which comes after Bovis Homes agreed to pay £7m compensation to customers for poorly built houses.

If your home is less than 10 years old – even if you are not the first owner – it is almost certainly covered by a warranty.

If you are the first owner of a new build property, your builder and/or conveyancer should have confirmed if your home has NHBC Buildmark cover. You would have received a policy document and insurance document.

It doesn’t matter if you are not the first owner of the home. It is the home that is covered for 10 years. Cover is passed on to the new owner when the home is sold.

You may have another policy. Other policies include, BLP, LABC, Premier Guarantee and Checkmate.

Generally, housebuilders/developers are responsible for putting right any defect caused by their failure to build in accordance to the standards as set out by their warranty and insurance provider.

However, the guidelines can be subjective. Which is where it can become challenging. You might consider something to be a fault, but the house builder/developer may argue it is not.

Most of the time, it is about negotiating. You may not get everything you want, so you will have to decide what you are happy with.

We will guide you through the steps you should take:

1. A letter to the builder/developer to set out your complaint.

2. In the event that the builder/developer fails to respond to your complaint then we will escalate your complaint to the NHBC or your warranty provider.

3. If we don’t receive any satisfaction from your warranty provider, we may pursue your complaint internally with NHBC or your warranty provider.

4. We may make a claim about the warranty provider to the Financial Ombudsman Service.

5. Mediation may be an option to consider before legal action is taken.

6. If medication is not successful, then we may contact an organisation called the Consumer Code for Homebuilders or the Consumer Code for New Homes (depending on your warranty provider). The body has a Dispute Resolution Scheme and we will to refer your complaint to Dispute Resolution Scheme procedure.

We will complete the require application on your behalf and send it to the independent Dispute Resolution Scheme with your statement of evidence (application fee will be applicable and payable by you).

The Adjudicator will ask the builder/developer to respond to your statement. At this stage the builder/developer may resolve the complaint without formal adjudication - this is called ‘early settlement’.

If early settlement does not happen, the builder/developer must submit their response to your statement.

The Adjudicator will review submissions from both parties and decide whether or not you have a legitimate dispute and have suffered financial loss and/or emotional distress and / or inconvenience and if so how much loss / emotional distress / inconvenience because the builder/developer was in breach of the requirements of the Code.

The Adjudicator will make a decision and send it to both parties. The decision may be a performance award (where the builder/developer has to do something) or a financial award (where the builder/developer has to pay you money) or a combination of the two.

7. If the matter has not resolved, then we will consider taking a legal route.

Why Summerfield Browne?

Summerfield Browne Solicitors will aim to reach a final settlement, that will give you and your family, the compensation you need and deserve. Our team of specialist lawyers will robustly negotiate on your behalf, and endeavour to obtain the best settlement for you as soon as possible.

We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.

Call us on 0800 567 7595

By sfbsolicitors, Mar 26 2018 02:07PM

You can take court action to claim compensation if your landlord breaks tenancy deposit protection rules.

You can claim compensation of 1 to 3 times the amount of your tenancy deposit if your landlord:

• doesn't protect your tenancy deposit in a tenancy deposit protection scheme

• doesn't give you certain information about the scheme being used

• takes too long to protect your deposit or give you prescribed information

We also act for landlords who are seeking to defend claims made against them by tenants for failing to protect their deposit in an authorised scheme and have a very high success rate.

Jhawer v Vatts. County Court at Brentford, 18 February 2016

Mr V was the assured shorthold tenant of Mr J. The first tenancy began in 2006. Mr V paid a deposit to Mr J’s agents, who later went out of business. In 2009, Mr J granted Mr V a tenancy of a different property, with further tenancies of that property granted in 2012 and 2014. Each tenancy agreement stated that a deposit had been paid. (Mr J argued that this was an error through using a template).

In 2015, Mr J served a s.21 notice and brought possession proceedings. Then a possession order was made at a hearing Mr V did not attend. Mr V applied to set aside the order and strike out the claim.

Mr V argued that Superstrike v Rodriguez [2013] EWCA Civ 669 applied and that the deposit paid for the first property should be deemed to have been received by Mr J in respect of the second property. The deposit had never been protected (or returned).

The District Judge held that Superstrike applied by analogy at least. Mr V had been entitled to the return of the deposit at the end of the tenancy of the first property. This was regardless of the fact that the agents had gone out of business. Any deposit requirement under the new tenancies was fulfilled by a right of set off of the right to claim repayment of that first deposit, and thus a deposit was ‘paid’ in Superstrike terms, regardless of whether the subsequent tenancy was of the same property or a new property. The lack of repayment of the deposit, together with the tenancy terms on the second property requiring a deposit, showed a deposit had been paid in respect of the second property, and not protected.

The s.21 notice was invalid and the claim for possession dismissed.

We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.

Contact us on 0800 567 7595.

By sfbsolicitors, Feb 13 2018 01:25PM

As most of the country has been affected by snowfalls and plummeting temperatures this week. Most of us will have taken steps to try to clear the snow and ice from our properties, but what about the surrounding areas. Many members of the public are unsure if they would be liable for any injuries caused by a slip or fall on an area they may have cleared or helped to clear.

It was the case many years ago where the local community would be out in force with shovels clearing the local roads and pathways of snow to assist the whole of the community; especially the elderly members of the community who were more liable to slip or fall in icy conditions. In December 2017 the NHS published an article warning of the slips, trips and falls dangers faced by the elderly in Winter which stated that between November 2016 and February 2017, North West Ambulance Service responded to over 30,000 incidents in relation to falls in the region .

Of course, it is not the responsibility of the local community to ensure that Highways are cleared, under legislation, such as The Highways Act 1980, the highway authority must ensure that they comply with Section 41(1A), so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. This does not mean that all roads will be treated.

Highways England are responsible for gritting Motorways and main A roads. The local authority will be responsible for all other roads. Northamptonshire County Council report that:

“If ice and/or snow are forecast, we prioritise gritting all…A roads and B roads, traffic sensitive roads and other roads, including at least one road to a village community. These roads are called the precautionary network (P1) and cover 46% of the total road network…..Please remember that the majority of minor roads will receive no treatment at all”

So as not all highways will be treated we can assume that pathways will not be treated at all. Do you, as an occupier of a property, have a duty to clear snow or ice? Should you assist with clearing the snow from a road or pathway that is not your property? Will you be sued if you clear the snow and a person falls on an area you have cleared?

Your legal duty is defined by The Occupiers’ Liability Act 1957 s.2(2) in so far as you have a duty to ensure that your property, is reasonably safe for visitors for which you have invited or are permitted to be at your property. You should therefore ensure that you maintain a cleared pathway that is reasonably safe for any visitors or persons invited or permitted to be at your property.

In the recent case of Cook v Swansea City Council [2017] EWCA Civ 2142. Mr Cook (the Claimant) lodged an action against Swansea City Council (the Defendant) pursuant to The Occupiers’ Liability Act 1957 s.2(2), which states:

‘The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.

The facts of this case were that on the day of the incident the Defendant had gritted the car park in the early hours. After the car park had been gritted it rained and as such the rain washed away the grit and froze, thus causing icy conditions in the car park. The Claimant attended at the car park that morning and on his way to purchasing a ticket he slipped and fell causing an injury. The Claimant submitted that the Defendant was liable for his injury as the operator and occupier of the car park. A station car park is a place to which drivers are "invited".

The Defendant’s policy in relation to gritting the unmanned open-air car park was that they would grit the car park if complaints were received by customers or members of staff who had attended at the car parks to issue tickets or collect monies reported the issues. All staffed car parks were gritted as and when was necessary.

Upon hearing the case The Court of Appeal had to consider numerous legal principles; such as the standard of care and causation. The Court of Appeal upheld the trial Judges finding that the there was no breach of duty committed under The Occupiers' Liability Act 1957. The Claimant was therefore unsuccessful in his action.

The provisions of s2 of the Occupiers’ Liability Act 1957 clarify the responsibilities of the owner or occupier. It does not however assist us in relation to being community spirited and assisting with clearing roads or pathways that are not your property.

The Government’s advice on this approach is: ‘You can clear snow and ice from pavements yourself. It’s unlikely that you’ll be sued or held responsible if someone is injured on a path or pavement if you’ve cleared it carefully.

So, what does this mean in real terms? The advice given states that it is ‘unlikely’ that you would be held responsible, it does not say that you will not be held responsible. How do you deem if you have cleared the pathway ‘carefully’? The Government advises that when you clear snow and ice you:

• Do it early in the day - it’s easier to move fresh, loose snow.

• Do not use water - it might refreeze and turn to black ice.

• Use salt if possible - it will melt the ice or snow and stop it from refreezing overnight (but do not use the salt from salting bins as this is used to keep roads clear).

• Use ash and sand if you don’t have enough salt - it will provide grip underfoot.

• Pay extra attention when clearing steps and steep pathways - using more salt may help.

It would appear from the advice given by the Government you should ensure that if you do assist in clearing a road or pathway as long as you do it carefully you would not be held liable. If, on the other hand, you cleared the snow or ice using water, which in turn formed into ice and someone injured themselves, then you could face action being taken against you.

Precautions, when clearing snowy or icy areas as per the Governments’ advice, could still be taken but there is no guarantee that action would not be pursued against you through the courts.

If you have cleared an area of ice or snow and you find yourself in the situation where an action has been taken against you it can be very daunting. We would be able to advise and guide you through the process. Each matter would be assessed on a case by case basis by our team of specialist solicitors.

We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.

Contact us on 0800 567 7595.

By sfbsolicitors, Feb 6 2018 03:23PM

Strangely enough the main legal framework that governs partnerships is still encompassed in an Act of Parliament over 127 years old, namely the Partnership Act 1890 (the Act).

The definition of what it means to be “in partnership” is found at paragraph 1(1) of the Act where the Act states that a “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit”. This can include relatively new businesses where two friends decide to begin importing goods and selling them for a profit (but without starting a company). The Act will also include informal business relationships for example when two individuals pool together their savings to buy a dilapidated building and with a view to redeveloping the building into flats to sell at a profit.

Many people believe that they are experienced in the ways of business and but fail to formally record a number of key details when they enter into a partnership such as:

• Who exactly they are in partnership with

• The liabilities of each respective partner

• What profit must go through the partnership accounts

• How a partner may leave the partnership and what happens to the partnership monies on dissolution

A common issue that can arise between individuals is when a new business partnership is doing well financially but the partners have not recorded in a written agreement that they are in a partnership. One partner may be under the impression that they are doing the majority of the work for the partnership and resentment can build. The problem is that without a written partnership agreement there can be a misunderstanding about how much time each partner must dedicate to the business and one partner ends up doing the majority of the work. This can be especially galling when it comes to the end of the month and the profits are split 50/50!

Setting up a partnership with a friend can be exciting but as experienced Partnership Law solicitors we can advise you on the benefits of having a well thought out Partnership agreement and let you know the risks involved before a dispute arises.

Unlike companies that have a separate legal entity the partners in an informal, unwritten partnership will generally have unlimited liability. If you are unsure of the risks involved, we can assist you in the drafting a robust partnership agreement that will give you piece of mind and put you on the path to success.

By sfbsolicitors, Jan 29 2018 12:32PM

Summerfield Browne Solicitors have recently been taking instructions from small businesses who are defending claims being issued in relation to small business rate relief. Typically, a surveyor or a company representative would attend a small business and tell the business owner that they could assist the small business owner in securing small business rate relief. A contract would then be offered and the small business owner, often being given very little time to read the small print, would sign the contract only to find out later that the contract terms were not what they had envisaged.

The surveyors would typically offer to assist a small business in obtaining small business rates relief on the provision that a percentage of any discount obtained would be paid to the surveyor. This figure could be as high as 40%. For example, if the small business owner secured a £1,000.00 reduction in small business rates then the firm of Surveyors would claim that they were owed £400.00. The contracts have typically been signed with an obligation to pay the percentage sum every year for the duration of the contract.

Due to changes in the way that small business rate relief is treated by the government this has led to the absurd position of some small businesses securing a 100% reduction in their small business rates only to discover that the small business owner now owes 40% of the saving to the surveyor! The contracts typically stipulating that the saving is owed whether or not the surveyor does any work to secure the relief.

We have been struck with how little work has been done to secure the small business rate relief and how small businesses have been ruthlessly targeted. We understand that many small business owners have never had to seek legal advice and if you are looking to appoint a Small Business Rate Solicitor to help you defend a claim please do get in touch

Should you require assistance please do get in touch by telephoning our office on 01858 414284.

Summerfield Browne have offices in London, Birmingham, Oxford, Cambridge and Leicester.

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