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20 July 2016

Anyone in possession of a non-domestic property whether occupied or vacant will be liable for payment of business rates. 

Fortunately there are mechanisms in place to offer temporary relief from this liability in circumstances where the property has been empty for a period of time. In the case of industrial and warehouse properties, 100% relief from business rates is available on vacant properties up to a continuous period of 6 months. Any short term lettings of 6 weeks or less during this time will not be subject to business rates. For retail property including shops and offices the period of exemption is restricted to 3 months.

For an empty property to be considered rateable case law has established that it must be capable of beneficial occupation. Conversely if a commercial property is incapable of beneficial occupation it will be removed from the rating list and no rates will be payable. 

R3 Products Ltd v Salt (VAO) [2014]

However, the issue of beneficial occupation of a tenant intending to carry out substantial refurbishment works was recently considered by the Upper Tribunal (Land Chamber) in the appeal case of R3 Products Ltd v Salt (VAO) [2014]. The tenant, R3 Products Ltd, had completed on a 10 year lease of a factory in June 2011. Shortly before completion the tenant was made aware that the high voltage electricity supply at the property had been cut off and cabling removed. The tenant had a specific requirement for high voltage electricity in order to operate its manufacturing business which was an influencing factor in the choice of factory. At this late stage in negotiations it was untenable for completion not to proceed and the landlord agreed to a 3-month rent-free period.

Immediately following completion the tenant embarked on the first phase of major refurbishment works to initially restore the desired high voltage electricity supply and thereafter to reinstall cabling and replace the factory lighting to make it compliant with health and safety legislation. When presented with a rates demand the tenant argued that the property should have been removed from the rating list during the first phase of the works as they could not use the property for the purpose in which it was leased without the high voltage electricity.

The Tribunal dismissed the appeal finding that the property was capable of beneficial occupation. When considering the facts presented, the Tribunal found that the property was ready for occupation and could be used by other potential occupants before refurbishment works were commenced by the tenant which was only required to meet their particular needs. On this basis the tenant was found to be in beneficial occupation of the property for the purpose of conducting works to make it suitable for their specific use from the time of completion of the lease.

Prospective tenants should therefore be mindful when viewing potential properties requiring refurbishment works specific to their needs as they may be caught by business rates liability even if the property is unusable by them.

Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.

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20 July 2016

In advance of the recent international anti-corruption summit in London, substantial amounts of press coverage were devoted to David Cameron’s faux pas in referring to some of the “fantastically corrupt” countries in attendance. Significantly less publicity was given to the Prime Minister’s announcements at the summit itself, including one which has potentially wide reaching implications for those who use corporate vehicles to own and purchase property in the UK.

The government recently announced that the UK was to be the first G20 country to implement a publicly accessible register of beneficial owners of companies and other corporate entities – beneficial owners being the individuals who ultimately sit behind often complex corporate structures and enjoy the benefit of assets owned by the company. At the summit the Prime Minister went further by announcing that offshore shell companies and other foreign corporate entities that buy or own British property will similarly be obliged to declare their beneficial ownership. The proposal may go some way in addressing concerns that some high-value properties, particularly in London, are being purchased with ill-gotten funds to facilitate money laundering. It is intended that the transparency obligations will extend to companies and other entities which currently own UK property, not just those that purchase in future, such that the ownership details of tens of thousands of people will soon become public. The government is also consulting on reversing the burden of proof, such that if there are suspicions of UK property being purchased with illicit funds, it will be incumbent upon the owner to demonstrate that the property was purchased with legitimate funds or risk being stripped of the property.

The Prime Minister has announced that a handful of other countries will make the same commitment and presumably hopes that others will follow suit. However, he has already faced criticism of his inability to persuade British dependencies, including the Cayman and British Virgin Islands to sign up to the transparency scheme. Critics have voiced concerns that these and other territories already have robust anti-corruption practices, albeit even if information is not made publicly available, and that a move to make such information more transparent risks driving legitimate business activity into non-compliant and less well-regulated jurisdictions. The property market is already showing signs of slowing in London and it is feared that the anti-corruption rules risk further driving down demand from legitimate business persons, who may have their own reasons for privacy. Others argue that, conversely, the rules will enhance demand by creating a perception of the UK property market as a safe and clean place to do business.

It remains to be seen how far reaching the anti-corruption practices will ultimately be and what impact, if any, they will have on the market.

 

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20 July 2016

A Lasting Power of Attorney (LPA) for property and financial affairs is a document which allows you to appoint someone to make certain financial decisions on your behalf. This includes paying bills, managing bank accounts and selling your property, should there ever be a time when you are physically or mentally unable to do so yourself.

It is impossible to know whether you, your partner or a parent will ever be in a position to need someone to act for you, but the consequences of being in that position and being unprepared are so potentially devastating that preparation is imperative.

The One Show recently highlighted a situation in which a 42 year old man was injured in a jet ski accident which left him in a coma for three years. He had no Power of Attorney, which meant that his wife had to apply to the Court of Protection to be appointed as his Deputy. This application can cost thousands of pounds and can take many months.

Perhaps a more common situation is that of a married couple, living in a house that is jointly owned. If one spouse loses capacity through a stroke or dementia and moves into a residential home, the other may not be able to afford to remain in the house and may wish to sell to buy a smaller property. Not only will it be necessary to make an application for a Deputy for their spouse, but it will also be necessary to make a separate application to the Court to enable the property to be sold. Both applications could have been completely avoided by having a Power of Attorney in place.

An LPA is therefore vital . Think of it as a one off insurance premium. Once done it can simply be put away and forgotten, but you can rest assured in the knowledge that you have done all that it is possible to do to protect yourself and your family against any unforeseen future problems.

 

Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.

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20 July 2016

Last year, the government decided that its April 2016 flagship policy to cap care costs will now face a four-year delay until 2020, stating that it cannot afford to make "expensive new commitments like this" at a time of austerity.

In consideration of the one in ten people who enter the care system and incur costs over £100,000, the government had promised that care fees would be limited to £72,000 for each person in a care home.

The decision to delay the care cost cap affects those who are already in a care home as well as those who will need such care over the next five years. Each group potentially faces having to give up everything they have worked for at a time which is already incredibly difficult for them and their families. A cap on care costs might have offered some comfort at this difficult time.

Current residents of care homes, in particular, will now have to pay an additional five years' worth of fees before their costs count towards anything.

While an experienced lawyer cannot fulfil the promise the Conservatives made to ensure that "no one has to sell their home" to pay for their care, they can help by protecting assets from potential liability of care home fees through careful planning.

 

Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.

Click here to return to the main Wills area.

 

20 July 2016

The Care Act 2014 introduced a legal duty for each Local Authority to assess every self-funding resident of a care home in their locality, but this duty has since been delayed until April 2020.

 

However, a recent decision by the Local Government Ombudsman against North East Lincolnshire Council confirms that a Local Authority does have a legal duty to assess its self-funding care home residents once they approach the upper capital threshold. This decision was made after the council failed to assess a resident’s contribution towards her residential care costs when the value of her remaining capital fell towards the upper capital threshold of £23,250.

 

“C” was a permanent resident in a care home and owned a property which had an estimated value that exceeded the upper capital threshold. The council agreed to enter into a deferred payment agreement (DPA) creating a debt equal to the costs of her care against her property that would be repaid once her house was sold.

 

When her debt reduced her remaining capital to below the threshold, C should have started to pay a reduced contribution for her care, but the council did not carry out a reassessment. This meant that when C died and her house was sold to pay the debt, the estate was left with less capital.

 

The Local Government Ombudsman found that there had been fault causing injustice. The Council was found to have failed to carry out a financial assessment when the value of C’s remaining capital reached £23,250. The final debt to the council should not have included contributions that were payable by the council once the capital fell below the threshold.

 

Historically, an assessment has not occurred unless requested by the care home resident or his/her representative (e.g. Attorney or Court-appointed Deputy). Those who are self-funding in a care home should therefore take note. Oratto can assist in arranging financial assessment for care home fees, and challenging incorrect assessments. Just contact us today to arrange a consultation with one of our specialist litigation solicitors.

Contact Oratto on 0845 3883765 to speak with an adviser or use our contact form to arrange a call-back.

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