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Sponsor Licenses for Colleges

Posted by: admin    Tags:      Posted date:  December 20, 2011
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New rules now in place have meant that over 450 colleges cannot sponsor new international students.

UKBA’s position is that they with to ‘cut down on abuse and raise the standards’. However, these new rules have meant that numerous institutions can no longer survive. A spate of suspensions and revocations of Tier 4 Sponsor licenses have forver many colleges to close.

However, institutions can be encourage by the decision in San Michael College Limites v Secretary of State for the Home Department (2011) EWCA CIV 1336 where the court of appeal found that the UKBA’s procedure in suspending and revoking a licence was unfair despite the college failing in some of it’s duties (inculding record keeping).

International colleges should not shy away from challening UKBA’s decision by means of Judical Review ot representations to the UKBA.

When is a guarantee not a guarantee?

Posted by: admin    Tags:      Posted date:  December 14, 2011
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When you buy a new house normally the house will be covered by the National House Builders Contract (NHBC), giving extensive protection against defects for two years and against major damage for the following eight years (all other liabilities are excluded). The contract must be fair and reasonable, but no judge is going to say that the long-established, well understood NHBC is not fair and reasonable – although experience has shown that it is not a complete panacea.

Suppose that a major defect in construction is discovered after the expiry of the NHBC and the limitation period. Has the owner a remedy? In a recent case the owner discovered serious defects in the two flues, which necessitated the closure of the gas to two gas fires, and required expensive remedial work.

So far as the economic loss goes, there is no liability for a breach of contract as such. The builder would only be liable for personal injury – for example, an explosion – for failing to take reasonable care for the safety of the inhabitants.

The normal relationship between builder and owner does not give rise to any special assumption of responsibility by the builder. However a liability may arise if there is a special relationship between the builder and the owner of the house. Such a relationship usually arises where the client particularly relies upon the proffessional skill of the other party, such as an architect or surveyor, and that other party knows that the client will rely upon that professional skill and therefore may suffer economic loss as a consequence of ngligence on the part of the professional.

There may be a n indirect remedy for the owner of the house in public law, for example, where the building or developer obtained the planning permission and in the event departed from it and also was in breach of the building regulations, thereby leading to problems . Action by the local authority, in its discretion, might lead to some rectification but would be unlikely to yield adequate compensation for the owner.

Eviction of tenants by local authorities

Posted by: admin    Tags:      Posted date:  December 14, 2011
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There is a proposal to amend the Housing Acts 1985 to include a power for the court to grant possession in cases where the tenant (or member of the household) has been convicted of violence against property, persons or theft linked to a violent disorder. This proposal does not contain requirement that such convictions relate to the locality of the property as the grounds currently drafted do.

The current law available to social landlords to control anti-social behaviour so far include:
- Proceedings for the breach of terms and conditions of a secure and assured tenancy;
- Proceedings for conduct causing or likely to cause nuisance or annoyance or conduct leading to conviction of a secure or assured tenant;
- Claim for a demolition order;
- Proceedings for termination of an introductory tenancy, a non-secure tenancy and a demoted tenancy;
- Proceedings for termination of an assure d short hold tenancy.

In addition, social landlords can apply for anti-social behaviour injunctions and orders. Of the different types of possession proceedings available, all are capable of being pursued on a mandatory basis. Before deciding to grant an order for possession, the court must be satisfied in all the circumstances that it is reasonable to grant an order for possession.

Unmarried Couples Jointly Owned Property

Posted by: admin    Tags:      Posted date:  November 14, 2011
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It had been thought that if a property had been purchased in joint names by unmarried couples and therefore outside of divorce or civil procedure ancillary relief proceedings then the assumption was that the interest in the property would remain in joint names on an equal basis. In the recent judgement of Jones v Kernott the Supreme Court have introduced a concept of a change of common intention. In this case the male partner had not in fact lived in or contributed to the home for 14 years. The court has effectively said that a change in common intention can be inferred by conduct. Thos case may in facr follow Stack v Dowden where a party can gain an interest in a singly owned property by the inferred conduct of the parties.

Beware the Court also made it clear that each case must be decided on its own facts.

Online Estate Fraud

Posted by: admin    Tags:      Posted date:  November 9, 2011
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A recent survey of 2,000 adults conducted by Goldsmiths University Creative & Social Technology Centre suggested that the UK population owns around £2.3bn of internet-hosted assets. The same survey highlighted the problem of online fraud upon deceased’s estates as it found that approximately 11% of those surveyed have included online passwords in their Wills!

The way we hold our assets has changed dramatically over the last decade. People try to help the executors of their estates by detailing their passwords, pin numbers and other digital access codes in their Wills. After death, when probate is extracted the Will becomes a public document. It is then that fraudsters are able to ascertain the information that enables them to access those Internet-hosted assets, especially bank accounts.

If you, as a client, are adamant you wish to leave this information to your executors we would advise you to do so in a secure way, such as in a sealed envelope, which can be kept with your Will but will not be published with it and thus it will not become public knowledge. However, executors are usually able to deal with such assets without knowing the secret codes/ passwords, and financial institutions usually advise individuals to remember these but avoid writing them down or informing anyone else.

We can assure you that we will be able to guide and advise you regarding any such tricky issues when helping you prepare your will.

Negligence of Surveyor

Posted by: admin    Tags:      Posted date:  October 28, 2011
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A recent case held that a potential buyer of property should not rely on the valuation provided by the lender but instead should get their own valuation carried out. In this case it was a Buy to let mortgage and the surveyor who had been instructed by the lender had been overly optimistic about the possible rental income which could be generated from the letting of the property. In actual fact the buyer could not even raise enough of rental income to service the monthly mortgage costs. The Buyer had relied solely on the valuation which the surveyor had carried out on behalf of the lender.

The buyer took the lender to court for professional negligence and won in the first instance. However the Court of Appeal overturned the decision. It held that the buyer was making a commercial decision and should therefore have made his own inquiries including a survey for his purposes.

Sunday Working

Posted by: admin    Tags:      Posted date:  October 19, 2011
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An Employee of the NHS who did not want to work on Sundays has had his wishes respected. The employee who has worked with the NHS trust for 10 years, was initially told that he would be able to opt –out of the rota on Sundays. Yes despite submitting an opt-out application, the employee’s request was disregarded.

Following intervention by the Christian Legal Centre, the employee sent a letter to the NHS Trust, outlining the legal position and explaining that he should not be compelled to work on a Sunday. The NHS Trust has now relented, and the Employee will not have to work on Sundays.

Andrea Williams of Christian Concern said “ Employers should respect Christian employees who do not wish to work on a Sunday, as in most situations arrangements can be made to accommodate this. This situation is an encouraging example of how Christians can ensure that their faith is respected in the workplace”.

Negligence of Surveyor.

Posted by: admin    Tags:      Posted date:  October 17, 2011
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A recent case held that a potential buyer of property should not rely on the valuation provided by the lender but instead should get their own valuation carried out. In this case it was a Buy to let mortgage and the surveyor who had been instructed by the lender had been overly optimistic about the possible rental income which could be generated from the letting of the property. In actual fact the buyer could not even raise enough of rental income to service the monthly mortgage costs. The Buyer had relied solely on the valuation which the surveyor had carried out on behalf of the lender.

The buyer took the lender to court for professional negligence and won in the first instance. However the Court of Appeal overturned the decision. It held that the buyer was making a commercial decision and should therefore have made his own inquiries including a survey for his purposes.

Mistake in Wills

Posted by: admin    Tags:      Posted date:  October 13, 2011
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In Wills, there are three possible ways in which a mistake may occur:

1. The wrong document might be executed (ie. Signed) by the person making a will, who is called the testator;

2. The testator may be mistaken in believing that certain facts exist and this mistaken belief may affect his motives for making certain provisions in his will;

3. The testator may be mistaken as to the effect of certain provisions in his will or about his will as whole.

The Court has some power to alter words in a will but only in three very limited situations:

1. It may omit any words from a will which the testator did not know of and approve;

2. In certain, limited circumstances legislation permits the court to order a will to be changed so as to carry out the intention of the testator;

3. Where it is clear from a will that a mistake has been made in its wording and it is also evident what the intended wording was, the Court may interpret the will as if certain words were inserted, removed or changed.

We would recommend, if you have made a will, that you review it carefully to make sure you are still happy with the contents and no mistakes have been made. If you have not made a will, then we would advise you to make one as soon as possible. Please contact us if you would like advice and assistance from one of our solicitors in our Wills department.

Mistake

Posted by: admin    Tags:      Posted date:  October 3, 2011
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In trusts (as in this case) but also in contracts, it is established law that in order to correct a mistake by construction, two conditions must be satisfied. First, there has to be a clear mistake on the face of the trust instrument. Secondly, it has to be clear what correction ought to be made in order to cure the mistake.

The court held in the recent case of Deutsche Trustee Company Ltd v Fleet Street Finance Three plc and another: Chancery Division 9 September 2011. that in deciding whether there was a clear mistake, the court could have regard to its background and context and was not confined to reading the document alone. It is usually a matter of construction and legal interpretation which you will need detailed legal advice upon. Consideration will have to be given to previous cases and unfortunately it is not always clearcut. We can advise you and help you decide whether, upon the specific facts of your case, including the instrument in question and its background, there is valid challenge to the trust instrument as a result of a mistake.

(Shortly we will discuss the three possible mistakes which may occur in Wills.)