We have the answers to your legal questions

FAQs What to think about before writing a Will

What do I need to think about before writing a Will?

  1. The Executors. These are the people who will call in the assets, pay off the debts and distribute the Estate in accordance with your instructions. Your Executors should be over the age of 18 and they can be beneficiaries as well as Executors. It is helpful for your Executors to know of your finances or alternatively to be made aware of where documents are held detailing same. You should tell your Executors where your Will is being stored.
  2. Assets – both solely and jointly owned – including property, as well as those held in Trust such as Life Insurance policies, pension benefits, death in service benefits.
  3. Guardians – if you have minor children, who would you want to look after them if there is no one with parental responsibility. It can also be useful to put a letter for your Guardians for your views on education etc.
  4. Legacies you wish to make – be these specific items such as jewellery, paintings, property and even animals – it is important to people that they make provisions for their furry friends.
  5. Debts and Liabilities
  6. How the remainder of your estate is to be divided and to who i.e. once all of the above has been dealt with, debts and executorship expenses have been paid You should think about family, charities as well as if anyone is financially dependent on you.
  7. It is helpful to provide a brief background as to your family history. If people are not being included in your Will it is important to consider them and why they are being left out.

How do I make changes to my Will?

If the changes are relatively straightforward you can prepare a document called a Codicil which can revoke clauses in your current Will and replace them with new ones. Alternatively, if Solicitors have drafted your original Will it might be recommended that you have a completely fresh Will prepared as this is sometimes just as easy and can be more diplomatic. If the changes are significant a new Will should be prepared.

Life Events that should trigger an update

  • Marriage or Civil Partnership (unless you made a Will in contemplation of marriage or civil partnership)
  • Divorce or separation
  • Death of a beneficiary
  • Bankruptcy, or other significant change in circumstances of a beneficiary (e.g. going through matrimonial problems, or becoming disabled or vulnerable)
  • The purchase of overseas assets (in which case a foreign Will may be necessary)
  • If a Budget introduces inheritance tax changes which will affect your tax liability
  • Further lifetime gifts to your children or to anyone else for whom you have a parental obligation – these gifts may have to be taken into account when your executors administer your estate unless you express a contrary intention in your Will.

Who is entitled to view a Will? Before/after Probate granted

Only the Executors named in the Will are entitled to read it after you have died. After Probate has been granted it becomes a public document and anyone can apply to the Registry for a copy of it.

Trust v Wills what’s the difference?

A Trust can be set up during your lifetime or upon death. A Will is only activated upon death.

A Trust can provide extended control over assets allowing for carefully thought-out conditions to be applied. A Will offers you a direct say on the distribution of your assets but does not provide extended control over how the beneficiaries might use them.

There are potentially tax mitigating factors to consider when looking at Trusts v Wills depending on your circumstances and your assets and so it is always advisable to take professional advice.

FAQs Residential Conveyancing

What is conveyancing?

Conveyancing is the legal work undertaken to transfer the ownership of a property in the UK from one person to another. Our specialist conveyancing team also deal with other property related matters such as rectifying deflects in legal titles, lease extensions and remortgages. Please review our website for a comprehensive list.

How long does conveyancing take?

An average sale or purchase will take around 8-10 weeks from instruction to completion. Various factors can alter this timescale, such as the complexity of the matter, or any lender requirements that must be fulfilled. As your matter progresses, we will endeavour to keep you updated on any issues that arise, which could impact on those timeframes, so that you can plan accordingly.

Do I need a Conveyancer to sell my house?

Buying and selling property is a complex matter and it is important that the legal documents are correctly drafted. Your buyer will be relying on any statement or reply that you give during the transaction, and it is therefore essential that you fully understand what is being asked of you and that you give an accurate reply. Our property lawyers have years of experience and training to ensure that they can progress matters smoothly and they are available to assist with any questions or concerns that you may have during the course of your sale.

What additional costs should I consider when moving or buying a house?

When you are ready to consider moving house, please contact us and we can provide a comprehensive quote to include our legal fees and the known disbursements (eg Land Registry Fees and Searches).

If you are buying or selling a Leasehold Property (eg a flat) there are additional fees to consider. For a sale, the landlord will provide a selling pack (LPE1s) and most companies will charge a fee for this; your lease may also contain provisions regarding additional payments on any sale or transfer. A buyer is typically charged a fee by the Landlord for updating their records. These fees vary company to company however can be several hundred pounds. Some Freehold properties have similarly charges, when there is a management company who maintain external common areas on the estate eg the roads or green areas.

Whilst it is not a legal requirement, if you are purchasing a property, it is always recommended that you arrange to have a survey conducted to check for any major problems and recommended works.

How to choose a conveyancing solicitor?

Some estate agents may be tied through a referral scheme to a specific conveyancing firm or local solicitor. Sellers and Purchasers should always have freedom of choice as to which lawyer they wish to appoint to assist them with their sale or purchase transaction. It is helpful to get quotes from various firms who could assist you, but you should not just rely upon the cost of the service when deciding.

Our advice is to always read reviews online for those firms as whilst some may be cheaper than others, they may not provide the service you expect to receive or which you deserve to receive. Battens prides itself on providing a service which is both reasonable in terms of cost, but one where a client should expect to receive a first rate service provided by a dedicated lawyer and their support staff member. Working in conjunction with one another.

Licensed conveyancer vs conveyancing solicitor: what’s the difference?

Many different terms are used when describing a legal representative who carries out property work or conveyancing. A more effective term to use to describe the role would be property lawyer.

A Licensed Conveyancer is a conveyancing specialist who has qualified within the field of conveyancing or property law. They are a legally qualified person who deals solely with conveyancing work.

A conveyancing solicitor is someone who is a legally qualified solicitor who carries out conveyancing or property work. A solicitor is able however to practice in many other areas of law, including property as opposed to a Licenced Conveyancer who is only qualified to deal with conveyancing work.

When should I use a solicitor rather than a conveyancer?

There is no benefit when looking to appoint a property lawyer to carry out conveyancing work for a sale, purchase or re-mortgage for example, to choose a solicitor over a Licensed Conveyancer or vice versa. Whilst the qualifications each have obtained are different, both should be more than capable of assisting with a property transaction. However, someone who is listed as a ‘Conveyancer’ only may not be legally qualified and may be supervised by someone who is legally qualified instead. This should be checked before agreeing to instruct that person to assist with a property transaction.

Are there any disadvantages of using a solicitor for conveyancing?

On the face of it, there should be no disadvantages of using a solicitor for conveyancing. As long as that solicitor is competent in the field of property law and can confirm they are more than capable of carrying out a particular conveyancing transaction with experience with the specific transaction you wish to undertake.

A helpful tip is to perhaps research a particular individual online by visiting the firm’s website to get some idea as to the experience of the lawyer assigned to you or one you wish to instruct to deal with your property transaction. The firm’s website should list the individual’s qualification, level of experience and whether they supervise other lawyers or are supervised themselves and by who.

Should you choose a solicitor that’s local to you?

Of course you do not need to, however local solicitors have good working relationships with each other and can help improve transaction times. We have really good relationships with solicitors locally and it is always good to see a friendly name representing the seller/buyer. There’s also a lot of expertise locally so if there is a problem with the legal title that needs to be resolved we know how each other work and what is likely to be needed in order to resolve it saving a lot of back-and-forth emails.

Common frustrations of buying and selling a house

Always the transaction time! Unfortunately buying or selling a house is not an instant process and there are hoops to jump through for compliance before we get to the legal work. It can really help speed things up if your ID and Source of Funding is all organised beforehand for a purchase, and for a sale if you can find all of those certificates you put in that “safe place” this will reduce the number of enquiries the buyer’s solicitor needs to raise. With leaseholds the most common frustration comes from dealing with landlords. Some are really good but others you can be waiting weeks to get information from them unfortunately.

How long does conveyancing take?

The national average is about 10-14 weeks for a freehold sale or purchase (leaseholds do take longer), however there are so many factors that can impact this. We have to gather and review a lot of information to purchase a house so the quicker we get all of this in (the mortgage, searches, replies to enquiries) the quicker we can prepare a legal report to you with documents to sign. If however, there is a delay in getting some information this increases the transaction time. Of course transactions go through quicker than the average and some take longer, it very much depends on the property and the circumstances of the chain.

Paperwork efficiency and tracking milestones

You being really organised with your paperwork helps us enormously. Source of funds can sometimes cause a bit of a stumbling block. We understand that it feels like you are providing a lot to us but 6 months worth of bank statements showing where the monies you are contributing are held, together with 6 months statements for any accounts that have paid into your account (e.g. if your deposit is in your savings and you have transferred money in from your current account we will need 6 months of both accounts) are required.

Also for a sale or a purchase we will need ID from you, so make sure you have downloaded a utility bill recently and your passport/driving licence is in date.

How much do conveyancing fees cost?

Our fees are on a sliding scale compared to property value so let us know if you need a quote and we can provide this for you. On a sale you would need to bear in mind any estate agents fees if you sell via them. On a purchase we detail how much the searches are likely to cost within our quote, but you should also factor in the cost of a survey if you are looking to obtain one of those. We do not organise the survey for you.

What does exchange of contracts mean?

Exchange of contracts is when the transaction becomes legally binding and the completion date is set. This means you can start organising the practicalities of the move, such as booking removal companies and putting in place buildings insurance.

Prior to exchange, both the seller and buyer will be given a contract containing the terms of the transaction to sign and return to their conveyancer. The buyer will also transfer their deposit (usually 10% of the purchase price) and exchange of contracts can then take place. This involves both the buyers and seller’s solicitor confirming the terms of the contract over the telephone and once exchanged, neither party can pull out of the transaction without a penalty.

What happens on completion day?

This is the date where the money and keys change hands; the seller moves out and the buyer can collect the keys and move in.

Prior to the day of completion, the buyer’s solicitor should ensure they have all funds for the purchase in (including any mortgage money). On the day of completion, the purchase funds are sent from the buyer’s solicitor to the seller’s solicitor and once the seller’s solicitor has received them, completion has taken place. The Estate Agent is then contacted by the seller’s solicitor to confirm that they can release the keys to the buyers.

Can you do building work between exchange and completion?

On exchange, you do not automatically get access to the property. The exchange of contracts fixes a completion date which usually follows in the next week or two and that is the date the buyer will get the keys and have access to the property. However, on some occasions where access is required to carry out building work, if the seller is agreeable, the buyer can be granted a “key licence” so that they can get the keys to access the property to carry out works. The key licence will set out the terms in which the buyer can access the property and what works they are able to do under that licence.

Can you exchange and complete on the same day?

Yes. This is called a simultaneous exchange and completion. This is usually avoided because most parties want confirmation that the completion date is set in stone so that they can start arranging their move and without exchanging, the completion date is still uncertain. The other disadvantage of a simultaneous exchange and completion is that where there is a chain, it can take quite a lot time for all of the exchanges and completions to go through meaning that completion may be later in the day than it would be if the contracts had been exchanged beforehand and all money is set up ready to go.

Penalties for late completion / not completing at all

The contract will contain a contracted time in which the legal completion should take place by and if this is not met, the contract has been breached. If there is a hold up on the day of completion and this causes inconvenience for others in the chain then “notice is served” on the party causing the hold up. This involves sending a notice to the other party to confirm they have breached the terms of the contract for completing late.

If completion is late, interest payment may be due. If costs are incurred by a party in the chain and they therefore suffer loss due to the late completion, for example, if someone needed to pay for storage over night or stay in a hotel, then this can be claimed by that party and those further up the chain, depending on who is at fault for the late completion.

If the transaction does not complete at all, there are a number of penalties which can be imposed such as retaining the buyer’s deposit, damages or requiring the party at fault to do something to rectify the issue at hand.

FAQs Divorce

Can I make an application for divorce?

Yes, if you have been married for at least a year and your marriage has irretrievably broken down.

How do I apply?

One person or a couple jointly makes the application online.

You need your marriage certificate and there is a court fee to be paid.

A solicitor can do this for you and will ensure that the application is correctly completed as there are some potential pitfalls.

What happens if I am on benefits?

If an applicant is on a low income or on certain benefits an application can be made for help with fees and the court will assess whether any or all of the court fee is required to be paid.

Can my partner stop the divorce?

There are only very limited grounds on which a divorce can be defended. So if one person considers the marriage to have irretrievably broken down that will be sufficient to obtain a divorce.

What happens next?

The court sends the other person a copy of the application and they are required to acknowledge receipt of the papers.

After a period of 20 weeks from the issue of the application the Conditional Order can be applied for, this is the confirmation that you are entitled to a divorce.

What about finances?

Once the divorce application has been made you both need to be open and honest about your finances and provide each other with full details so that an agreement can be reached as to how you are going to divide things up.

What am I entitled to?

There are a variety of factors that are taken into account such as the length of the marriage, whether there are children, what the income position of each of you are, the age of each of you and so on. A specialist divorce lawyer will be able to advise you once full financial information has been obtained.

How do I reach an agreement?

You can discuss matters direct with your partner but should do so with caution and alongside legal advice. Mediation is an option so that you can discuss matters in the presence of a specialist family mediator. Negotiation through solicitors is a more formal process and will run alongside the other options in any event.

Getting legal advice at an early stage is advisable.

Can we use the same lawyer to agree finances?

No. Each of you need your own independent legal advice which will be based on the financial information and the checklist of factors that need to be taken into consideration.

Won’t having a lawyer make things difficult/expensive?

No. Divorce lawyers who are members of Resolution promote a constructive approach, listening to the client and aiming to get the best for them whilst guiding them through the process. If you both have your own legal advice you can make informed decisions based on legal advice. You are paying for expertise and experience.

So what happens when we reach an agreement?

It is drafted into a Court Order and sent to the Court for consideration by a Judge, with other documents that the Judge needs so that they have enough information to decide if the proposed Order is fair in all the circumstances.

The Financial Order can only be sent to the Court after the Conditional Order has been pronounced.

What happens then?

The Judge will either approve the Order or may raise some questions. Once it is approved it will be an Order of the Court and it will need to be implemented so that the terms you have agreed are actioned.

When will I be divorced?

6 weeks after the Conditional Order has been pronounced the application for a Final Order of divorce, the document that dissolves your marriage, can be applied for.

You may be advised not to apply for the Final Order immediately if finances have not been resolved or if there is a Pension Sharing Order as part of the settlement.

What do I do now?

For specialist advice on all aspects of family breakdown, including settlement of finances and resolving arrangements for any children of the family, contact one of our team who will support, guide and advise you through this difficult time.

FAQs Work related illness claims

Q1. When it comes to health and safety at work, what rights do employees have and what obligations do employers have?

Employers are legally responsible for the health and safety management of their employees. They must do whatever is reasonably practicable to protect their employee’s health, safety and welfare.

In order to do this employers have legal duties to assess the risks to their employees in the workplace. Any identified risk to the employee should then be addressed by the employer and any risk eliminated or reduced as far as reasonably practicable, this can include training of employees and safety measures.

Employers should have a health and safety policy in place for the protection of their employees. Employees should be made aware of the employer’s safety policies and procedures. The obligations on employers depend on the size of the business and the number of employees.

For particularly high risk activities there are specific rules and obligations on employers that are imposed by law.

Employers are required to consult their employees on health and safety. This can be by speaking to them directly or via a health and safety representative.

If employees think that their employer is exposing them to risk or is not carrying out their legal duties they should inform their employer of this in the first instance and, if no satisfactory response has been received, workers can make a complaint to the Health and Safety Executive.

If an employer fails in their health and safety duties and an employee is injured as a consequence the employee has the right to pursue a civil claim for compensation against their employer.

Q2. What is classified as a work-related illness and how can a solicitor help you to make a claim?

A work related illness is an illness which is caused or contributed to by a work activity. The work activity may not have caused the condition but may have aggravated a pre-existing condition.

Examples of some of the compensable work related illnesses are asbestos related illnesses where the exposure to asbestos occurred whilst undertaking a work related activity, industrial deafness, industrial asthma, stress, dermatitis and vibration white finger.

A solicitor can help you to make a claim by investigating exactly how the illness came to develop, what caused the illness and to identify who was and may now be responsible for paying compensation for the illness.

A solicitor can also assist you in ensuring that you are obtaining the correct benefits for the illness from which you are suffering.

Q3. What issues can arise when making a claim against employers?

Some work-related illnesses develop many years after a sufferer has left the work place. A good example of this is asbestos related illness claims where the illness may develop over 20 years after work place exposure to asbestos.

In these claims the employer may have ceased trading or an employee may no longer be able to recall exactly who they worked for. If the sufferer was an employee it may be possible for a solicitor to obtain their employment history in order to assist in providing the identity of a defendant.

If the company is no longer trading a solicitor may be able to trace the insurer for the company and to direct the claim to them.

If the person suffering from a work-related illness remains working for the company that caused their illness there may be issues relating to their employment rights on which a solicitor can advise.

Q4. Is there a time limit on making a work-related illness claim?

Yes. Strictly speaking the time limit for issuing a work-related illness claim with the court is usually three years from the date of diagnosis (NOT three years from the date of exposure).

It is worth getting advice from a solicitor who is specialist in this area as the circumstances involving work-related illness claims may mean that calculating the time limits are more complex than in other types of claim.

FAQs Benefits of using an LPA to appoint an attorney

  1. Choice: the majority of people appoint other family members as their attorneys - people who know you well and are more likely to respect your preferences and best interests.
  2. Flexibility: unlike a deputyship, an LPA can assign a role to your attorney even without a loss of mental capacity. For example, they could be authorized to deal with your bank if you became physically unable to get to the branch for a while.
  3. Control: an LPA can be planned in advance at your own pace, avoiding the last-minute urgency of the Court.
  4. Cost: the appointment of deputies is likely to be significantly more expensive than drawing up an LPA. In some cases, two applications to the Court may be required, doubling the cost.
  5. Speed: an LPA can be completed and registered in advance and is ready to use immediately in an unexpected situation, for example if you have a stroke. It can also be registered in advance with organizations such as banks. With a deputyship application, it is not uncommon for it to take 6 months or more to give the deputy authority to act.
  6. Scope: A “health and welfare” deputy appointed by the Court of Protection cannot give or refuse consent to life-sustaining treatment for you, unlike an attorney appointed by LPA. If you were seriously ill, your wishes regarding life-sustaining treatment might not be respected.

FAQs Top Tips when buying a house

There are many hurdles to jump when you’re purchasing a new home.

  1. Know the true costs and set a budget. Don’t just save for a deposit; budget for the whole buying process including surveys, searches, land registry, mortgage arrangement and legal fees, stamp duty, removal and furnishing costs and any potential repairs. And, if you’re buying a leasehold property, remember to factor in service charges and ground rent.
  2. Get an ‘Agreement in Principle’ before making an offer. Talk to a mortgage adviser about mortgage deals, then get an 'agreement in principle' from a mortgage lender – it could give you the edge on buyers without one.
  3. Consider your options - if you are a first time buyer, it’s well worth exploring the government’s first time buyer initiatives.
  4. Appoint an experienced lawyer - a good lawyer will manage the legal side of house buying and ensure everything goes smoothly.
  5. Get first dibs – ask local estate agents to call when suitable properties are about to come onto the market, that way you can book one of the first viewings.
  6. Ask questions – find out as much as you can about the area and the property, including how many viewings and offers it’s had - it helps when it comes to negotiating.
  7. Be realistic about timings – local searches can take up to 18 weeks and if you’re in a chain, not everyone will be ready when you are.
  8. Commission a full property survey – it's different to a valuation survey and will flag up any problems that could cost you later down the line. Your lender may require you to use a specific surveyor.
  9. Get insured – find a comprehensive building insurance policy with no onerous restrictions they can impose if, for example, you’re purchasing in a flood risk area.
  10. Draw up a Will – if you die, you'll want your assets (including your home) to be distributed to your loved one. Ask a lawyer to help you draw up a legally binding will.

FAQs Trade Marks

Q1. What is a trade mark?

A trade mark is a word or a catchphrase that you can use to differentiate your product or service in the marketplace, such as Nike, Chanel, "just do it" (Nike) or Diageo. You can add brand value by doing this, and in certain circumstances charge a premium for your product or service.

Q2. When do I need to think about registering a trade mark?

When you decide on a name for your business, or goods or services.

Q3. I have a company name from Companies House and I own a domain name: why do I need to register a trade mark?

Registering a company at Companies House or buying a domain name does not stop someone else from using your name to market themselves or their own goods and services. They may choose to register a trade mark to protect their brand, in which case you may have an expensive and lengthy battle to regain control of what should be your name and brand. Owning a trade mark adds value to your business: intellectual property (which includes trade marks, copyright, designs and patents) can greatly increase your bottom line and even bring in new revenue streams from licensing. It is invaluable in the event of a business sale, as most incoming buyers will need to see that what they're buying includes your trade marks.

Q4. Where do I need to register my trade mark?

In the country or countries where your business operates or sells its goods and services. If this is just the UK, then a UK trade mark will be right for you, but if you want to trade in the EU, either now or in the future, then you should consider registering in the EU, which covers all EU countries. For countries outside the EU, please contact us.

FAQs Copyright

Q1. What is copyright? Copyright is the right of a creator to own, profit from, sell or license what they have created. It is a type of intellectual property, but is different to a patent (which covers a process or invention, like a new drug) or a design (which is a template for something that can be manufactured commercially – like Trunki) or a trade mark (which is a brand name or slogan to identify and differentiate yourself from others in the marketplace).

Q2. What can be copyrighted? Examples are music, books, scripts or photographs. Ideas in themselves cannot be copyrighted. It's the execution of that idea into an original work that can be copyrighted.

Q3. How does the law work to protect copyright? A photo, song, audio-visual or written creation is automatically protected the moment it is finished: the challenge lies in proving that it is you, and not someone else, that created it. For many years, to prove copyright, an author would post their work to their lawyers or banker by registered post and ask them to keep the package unopened with the postmarked date-stamp as proof of creation. Now, there are other ways you can prove your ownership, but things have not moved on that much.

Q4. Can I register copyright in the UK? There is no official UK copyright registration system, but you can register it online with the US copyright office, which carries weight internationally and can always be pointed to as proof that you registered something on a specific date. You can find the US copyright office at https://www.copyright.gov/ and it costs US$55 per registration if you do it direct online. Often, screenwriters register their work with the Writer's Guild of America (even British ones) as it is another way of proving that it's your screenplay and not someone else's. You can also use the little © symbol to show others it's your work. For example: a copyright statement might read: “ © 2017 Jane Smith All Rights Reserved”.

Q5. I've got an idea for a book or a film. How do I protect it? The more detailed your description of the idea, the better, for example if you write a twenty page treatment of a film: that treatment is copyright the moment it's created, as it will count as an original work. Ideas are cheap: it's the execution of that idea into something tangible that makes it capable of being protected by copyright law. So if you're pitching your work, you should keep track of who you meet with, and when. Sometimes a non-disclosure agreement (“NDA”) is appropriate, but generally you'd see them more in the case of an industrial patent or commercial design (which are not copyrightable works in the way a book is). In books, TV and film, often the person you're pitching to won't like signing an NDA because they might think that you don't trust them.

FAQs Landlords and Tenants

Q1. What is a Right to Rent check?

This was introduced by the Immigration Act 2014 and requires landlords to ensure that their potential tenants have the right to live in the UK and therefore a right to rent their property. This check is only required on people aged 18 or over who will be living at the property as their main or principle home. Tenants must produce to the landlord in person specific original documents on a list approved by the Home Office (further details are available on request) which must then be photocopied by the landlord and retained for the duration of the tenancy and for 12 months thereafter. British, EEA and Swiss national passports will provide the tenant with an unlimited right to live in the UK; other potential tenants may have a limited right to reside in the UK and the landlord must ensure that when that right expires, they check that this has been renewed. If the landlord is found to have allowed illegal immigrants to reside in their property, there may be a penalty of £3,000 per illegal immigrant and/or a 5 year sentence. It is important that landlords do not discriminate in selecting tenants as this could lead to a claim for racial discrimination against them. Some letting agents undertake to provide this service to landlords and the responsibility for the checks will then be on them.

Q2. Do I have to do an immigration check on a lodger?

Yes, if they are over 18 and will be living in the property as their main or principle home.

Q3. Should I have an inventory?

It is not a legal requirement but it is advisable to have a detailed and photographic check-in inventory that is agreed between the landlord and tenant. There should also be a schedule of condition which sets out the condition of every room (e.g. newly painted walls; small stain on the carpet). A detailed check-out inventory should be undertaken at the end of the tenancy and the two inventories can be compared to assess what damage, if any, there is and what should be deducted from the deposit. You will have to allow for fair wear and tear for which the tenant is not financially responsible. There are independent inventory clerks who provide this service for a charge.

Q4. What should I do with a tenant’s deposit?

If you have an Assured Shorthold Tenancy (“AST”) agreement, you are required under the Housing Act 2004 (amended by the Localism Act 2011) to secure it in one of the Government-approved tenancy deposit schemes and provide the prescribed information to the tenant within 30 days of receipt. If you do not, you will have difficulty evicting the tenant and could face a penalty of between 1 and 3 times the sum of the deposit.

Q5. Do I have to hand over the deposit money to a tenancy deposit scheme or can I hold it?

There are two options: you can place it in a custodial scheme and they will retain it until the end of the tenancy or you can hold it in a separate account and register it with an insured scheme i.e. you tell the scheme that you have it but are retaining it. There is a fee of approximately £22 for doing the latter. Accounts are more easily managed online.

Q6. What is prescribed information when talking about deposits?

The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 clearly sets out what information must be provided to the tenant. For ease, each of the schemes has a form for you to complete and consists of the required detailed to ensure you are compliant. You will also need to provide further documentation as required by each scheme such as terms and conditions or a booklet. It is important that you also provide this additional documentation to the tenant within 30 days of receipt of the deposit.

Q7. What shall I do if the tenant does not agree with the deductions I am proposing from the deposit?

Each scheme offers a dispute resolution service where an arbitrator can decide on the appropriate deductions, if any. They will do so based on evidence provided to them so the more detailed that is, the better the decision. Ultimately, the deposit is the tenant’s money and it will be up to the landlord to prove that they are entitled to some or all of it. This is where an effective AST document and detailed check-in and check-out inventories will play an important part.

Q8. Is there a minimum EPC rating for rental properties?

At the moment, no but a landlord is obliged to provide a copy of the Energy Performance Certificate for the property to the tenant (except where the property is listed). Under the Energy Efficiency (Private Rented Properties) (England and Wales) Regulations 2015, from 1 April 2018, a landlord may not grant a new residential tenancy or renew an existing residential tenancy where the EPC band is lower than E and from 1 April 2020, this will apply to all tenancies including those that have existed since before 1 April 2018. Some buildings may be able to obtain an exemption but that will not automatically apply to listed buildings.

Q9. Should I install a carbon monoxide alarm where I have oil-fired heating?

You may if you wish but carbon monoxide alarms are only legally required in rooms where there is a solid fuel heating appliance such as a wood burner. You are obliged to install smoke alarms on every floor of all rented properties and you need to ensure that they are checked regularly.

Q10. Do I need to provide an electrical safety certificate to my tenants?

You are not legally bound to do this but you do have a duty to ensure that all electrical equipment is safe. However, if there are gas appliances in the property, you are obliged to have gas safety checks undertaken every 12 months by a Gas Safe engineer and a copy of the certificate given to the tenant.

FAQs Wills, LPAs and Tax

Q1. Do I need a Lasting Power of Attorney?

This can be answered in the same way as we treat travel insurance. Hopefully you will not need a Lasting Power of Attorney but if you do, your attorneys will be relieved to see that you have it in place as it will save both time and money. A Lasting Power of Attorney (LPA) appoints people (known as Attorneys) to look after your affairs if for any reason you are unable to do so. There are two types of LPA. One allows your Attorneys to deal with your property and financial affairs and the other enables your Attorneys to make decision about your health and welfare. Please note that some nursing homes insist on future residents having LPAs so that they know someone can act if the resident has lost or loses the capacity to act for themselves. Please arrange an appointment to discuss this further with us.

Q2. Can I alter my Enduring Power of Attorney?

No. An Enduring Power of Attorney (EPA) is still valid but it cannot be altered. If you wish to change your attorney/s you need to make a lasting Power of Attorney. Please note that EPAs only cover your property and financial affairs. Therefore, it is worth considering making a Lasting Power to cover your welfare needs. Please arrange an appointment to discuss this further with us.

Q3. Can my Attorneys continue to pay invoices from my estate when I die?

The people you appoint to be your Attorneys under a Lasting Power of Attorney or Enduring Power of Attorney will cease to be your Attorney immediately upon death. The administration of your estate will be dealt with by the Executors that you appoint in your Will. If you are not sure of what you can and can’t do as an attorney, please arrange an appointment to discuss this further with us.

Q4. Is my Will valid even if I have separated from my spouse or civil partner?

Yes. A separation does not make your Will invalid. You should alter it as soon as possible (if you do not wish your spouse or partner to benefit). When you get divorced or your civil partnership has been dissolved, your Will will still be valid but read as if your ex-spouse or civil partner had pre-deceased you. Please arrange an appointment to discuss this further with us.

Q5 .Do I need to change my Will if I get married?

Your Will will be revoked upon marriage unless it has been made in anticipation of that marriage. Please arrange an appointment with us to discuss what your Will says or needs to say.

Q6. Can the beneficiaries in my Will also be my Executors?

Yes. However, your beneficiaries should not witness your Will. If you are not sure who can act as your witnesses, please arrange an appointment for us to advise you.

Q7. When do I have to pay inheritance tax?

The Nil Rate Band (NRB) is the basic allowance available to an individual before any inheritance tax becomes payable. The NRB is currently £325,000. The value is made up of gifts over and above the allowed allowances for the previous seven years before death and also the value of your estate when you pass away.

Q8. What is the Residence Nil Rate Band?

The Residence Nil Rate Band (RNRB) is an allowance available in addition to the Nil Rate Band and came into effect from April 2017. To apply the RNRB, your property must pass to your lineal descendants (children, grandchildren etc..). The allowance started at £100,000 for 2016 / 2017 and will increase by £25,000 each tax year until 2020 when it will be a maximum of £175,000. Together with the Nil Rate Band (currently £325,000), this will give an individual an allowance free from inheritance tax of up to £500,000, by 2020/2021.

Q9. How much is inheritance tax?

Inheritance Tax is charged at 40% for anything over the inheritance tax allowance.

Q10. Will you store my Will?

Yes. We will store your Wills free of charge. We also store deeds free of charge for existing clients.

Q11. Do common law wives and husbands really exist in law?

In short, no. The law does not automatically recognise couples who have lived together as if married or civil partners. This means that if you do not have a Will the intestacy rules do not distribute any part of your estate to your partner. There is an opportunity to make a claim under the Independent (Provision for Family and Dependants) Act 1975 if you have lived together for more than two years.

FAQs Personal Injury Claims

Q1. How do I know whether I can make a personal injury claim?

If you are able to prove that you have suffered an accident that was not your fault - for example a road traffic accident caused by somebody else, or an accident at work where you have not been issued the correct safety equipment - you may have the basis of a claim for compensation.

Q2. Is it wrong to claim?

The law exists to provide redress and compensation for people injured through no fault of their own. Insurance companies sometimes try to criticise people for claiming compensation for personal injury. They say that to reduce the number of claims that are made. However, you should not be embarrassed or feel ashamed about making a claim when you have been injured or affected financially by the negligent actions of others. Not only have we as a society decided that such claims are appropriate and that the state should support them, but insurers are secretly pleased that such claims are made since if there were no claims then there would be no need for insurers.

Q3. Is there any time limit for consulting a solicitor about a potential claim?

Yes – most personal injury claims must be started in court no more than 3 years after the accident if the claimant is an adult, or no more than 3 years after their 18th birthday if the claimant is a child. However, different time limits apply to some different types of claim, so the sooner you consult a lawyer, the less the risk for you.

Q4. How will my claim be funded?

Many people have the benefit of legal expenses insurance with their home or motor insurance or even attached to some credit cards. That insurance may provide cover in cases of personal injury. Some people are members of a trade union which may provide them with assistance. In the event that you have no insurance or trade union cover, Battens may well be able to offer you a no-win-no-fee agreement tailored to your specific circumstances.

Q5. How long will my claim take?

It is often impossible to give a precise indication of the future timescale. In general, though, straightforward personal injury claims are often concluded within 9-12 months from the date the claim commenced. This will however depend on how long the recovery from the injuries takes, on whether additional treatment is recommended for the patient before a final prognosis can be given, and so on. More protracted claims, in particular claims which involve a long recovery period, Court proceedings and possibly also a trial, may take 2 years or more to conclude.

Q6. Will I need a medical examination?

Yes – in most cases you will need to see an independent medical expert who will examine you and prepare a report detailing the injuries you have suffered and saying whether you are likely go on to make a full recovery. This report will be used to value your claim for the purposes of settlement, and if the claim goes to a final hearing the Court will consider it.

Q7. How much compensation will I get?

In most personal injury cases, you will be able to claim for the pain, suffering and any limitations caused to your day-to-day living as a result of your injuries. This will be calculated by reference to the expert medical evidence. In addition, you can make a claim for financial losses you have suffered as a result of the accident, for example loss of earnings.

Q8. What deductions will be made from my compensation?

In many cases, we will make no deductions, to take towards your legal fees, from the compensation that you receive. It may though be necessary for you to pay from your damages the premium for an insurance policy if you decide to take one out - such a policy would protect you against the risk of having to pay expenses of the claim and the other side’s costs if your claim was not successful.

Q9. Will I have to go to court?

The vast majority of personal injury claims are settled without the need to go to court. There are however some occasions where a suitable settlement cannot be agreed with the Defendant, and those claims need to go to Court so that a Judge can make a decision about them.

Q10. What information will I need to provide to my solicitor at the first appointment?

As well as a full description of your accident and details of the people involved, your solicitor will need details of any legal expenses insurance you may have, the injuries that you have suffered, treatment you have had so far and any future treatment that has been recommended, and expenses you have had to pay out as a result of your accident. Do also bring with you any paperwork you have which relates to any of those areas.

FAQs Secondary victims in Personal Injury claims

Q1. What is a primary victim?

The injury was reasonably foreseeable.

They have to have close ties of love and affection with the injured person (who is known as the primary victim), such as a parent, child or spouse.

The secondary victim has to witness the accident or the immediate aftermath. You therefore need to be present at the accident or immediately afterwards, as you need to be able to show proximity to the accident in terms of time and space, such as witnessing a car crash.

The secondary victim has to suffer a recognisable psychiatric injury caused by the Defendant’s negligence. The things to look out for are flashbacks, nightmares, trouble sleeping, unable to work. You should also ask whether the secondary victim is receiving counselling and/or prescribed anti-depressants. Normal grief is not sufficient. Medical evidence will be required to support any psychiatric injury suffered by the Secondary victim.

The injury was caused by nervous shock as a result of a sudden perception of death or risk of injury to the primary victim. Nervous shock in Alcock was noted as being sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. Being told by a third party is not enough. A secondary victim has to perceive death, injury or risk of injury by sight or sound.

A primary victim is a person who suffers injury or death as a result of a Defendant’s negligence.

Q2. What is a Secondary Victim?

A secondary victim is a person who suffers psychiatric injury as a result of witnessing injury, fear of injury or death of a loved one, who is the primary victim.

Q3. Who can be a secondary victim?

Someone who has a close tie of love and affection with the primary victim and witnesses injury, fear of injury or death of their loved one.

Q4. What control tests have to be met for secondary victims to be successful in making a claim for damages for psychiatric injury?

There are 5 control tests which have to be met which were decided in a House of Lords case known as Alcock v Chief Constable of South Yorkshire following the Hillsborough Disaster.

They are as follows:-

Q5. Do I need to satisfy all the control tests decided in the case of Alcock?

Yes - not all cases succeed as they do not meet all the control tests set out above such as in the case of Taylor v A Novo Ltd 2013. This was a case where the claimant who was the secondary victim’s mother was injured in an accident at work. 3 weeks later the mother developed a pulmonary embolism and died suddenly. The claimant suffered psychiatric injury as a result of witnessing her mother’s death. The claim however failed on the grounds that the claimant was not present at the scene of the accident. There was too much time separating the accident and the sudden death of her mother.

Q6. What do I need to do if I wish to make a claim as a secondary victim?

You need to seek legal advice from a lawyer and establish whether you meet the control tests which I have discussed above.

Q7. How would my claim be funded?

We consider every claim to see whether a conditional fee agreement otherwise known as a no win no fee agreement can be offered to each client, but there are other options which we would discuss at our meeting with you.

FAQs Medical and Clinical Negligence

Q1. What is clinical negligence?

All healthcare professionals owe a duty of care to their patients. This means they must work at a standard in accordance with accepted practice and to provide all reasonable care in the provision of their particular treatment or therapy. Negligence usually occurs when the professional’s actions fall far below this standard, perhaps due to a mistake or poor judgment.

Q2. What does ‘clinical’ mean?

‘Clinical’ in the term ‘clinical negligence’ is a catch- all word used to describe all aspects of health care and treatment. The phrases Clinical and Medical negligence are often used interchangeably. Clinical negligence encompasses not just hospital treatments but includes care by any professional providing healthcare treatments or therapies such as a dentist, pharmacist or chiropodist for example. Sometimes the negligence may relate to a surgical mistake, sometimes it may relate to deficient nursing care. The word ‘clinical’ is just a generic description for something healthcare-related.

Q3. Do I have a case for clinical negligence?

As indicated in question (2), there are many different types of claim. However, successful claims have common elements, and whether you have a case is dependent on whether you have the required elements, namely;

a) Whether your care is negligent (ie, below standard). This means you must demonstrate your care was below the standard of a ‘reasonable body of practitioners’.

b) Whether you have suffered injury or illness resulting by reason alone of (a) above. This may seem straightforward but can be difficult to demonstrate due to the need to separate what illness was present before the incident and what illness happened as a result of the incident.

Q4. Should I complain first?

Yes. Bringing a complaint will help you to gain answers to what has happened and perhaps why particular decisions were made. It may also trigger an apology or admission.

Healthcare providers have a ‘Duty of Candour’ meaning they have to be open and honest with you about mistakes. If you are unsure or concerned about making a complaint, remember that you can discuss your concerns with us confidentially either before or after the complaint stage.

Q5. Will bringing a claim affect my ongoing treatment and care?

It really should not. If you complain or instruct solicitors, this should not affect your ongoing treatment. However, if your complaint is about the treating clinician, clearly the patient/doctor relationship might be affected and you may want to consider asking to be referred to another specialist. If you are unhappy with your specialist, being referred elsewhere may of course be better all round.

Q6. Is there a time limit?

There is a strict deadline applying to clinical negligence claims. Formal Court proceedings must start within 3 years of the actual incident or your knowledge of negligence occurring. There are exceptions to this rule but working to the three year principle is the safest approach.

Please note that the 3 year deadline is not a trigger date for you to start action! There is a lot that can be and should be done within the 3 year period. The justice system has created a formal pre-Court process to follow to resolve clinical negligence disputes. This process frequently results in a successful settlement without the need to go to Court.

Q7. Do I need to go to Court?

Not necessarily. In fact, many cases settle without the involvement of Court under the pre-action process (see above).

Q8. What happens if the actual patient has died?

Claims can be brought by the Estate of a deceased, the personal representatives of an Estate or Executors, have the authority to instruct solicitors and pursue claims.

Q9. What does it cost? How can I pay for it?

The legal costs in pursuing a claim can be high, particularly if a case goes to Court. Fees are made up of solicitors’ costs and specific expenses like the cost of medical reports.

There are, however, various options available to fund a claim and make it financially possible.

Some cases are suitable for No Win, No Fee Agreements, also known as Conditional Fee Agreements. For more information on the operation of our No Win, No Fee Agreements – do contact us.

In the alternative, you may have the benefit of pre-existing insurance (often appended to home insurance) to cover any legal claims you may encounter.

Legal aid is generally not available following changes in the law. Insurance to cover the cost of specific expenses can also be taken out, if your case is suitable, at the time of the litigation.

Q10. How much can I expect to win?

This is very difficult to answer as each case is different. The level of compensation is specific to each individual case. Compensation is generally made up of two elements; a figure for the pain and suffering, and a figure for any out of pocket financial expenses (which can include the cost of care provided by a relative). The pain and suffering element is often calculated by reference to similar cases and will reflect the impact on daily life.