Ms R, Essex

Commercial landlord and tenant disputes can be tricky to navigate – and without expert legal advice, you risk leaving issues unresolved or taking action that could lead you to fall foul of the law.

The law is designed to protect both parties – and as a landlord, you must be aware of your obligations within the tenancy.

Failing to comply with these can lead to serious financial and sometimes even criminal penalties.

But what happens if your tenants fail to pay their rent or breach their obligations in the lease?

Commercial leases can be complex and if the terms of the lease are broken, by either the landlord or the tenant, this can lead to a protracted dispute which can be both stressful and costly and damaging to your business if taken to court.

That’s why it is important to explore alternative ways of resolving a dispute before taking legal action.

Alternative dispute resolution

Alternative dispute resolution (ADR) is a simpler and effective way to resolve problems and disputes where parties cannot reach agreement but wish to avoid Court proceedings.

ADR is increasing in popularity and the Civil Procedure Rules 1998, require parties to attempt to engage in ADR before proceedings are commenced or be ready to justify failure to do so, or be at receiving end of an adverse order to pay penalty costs for non-compliance.

ADR processes

There are two main categories of ADR:

• Imposed: The imposed ADR procedures occur when parties have agreed to resolve issues by ADR under the contract or because of membership of an organisation where there is a binding requirement for ADR resolution procedures.
• Voluntary: Voluntary procedures are where parties agree, often after finding themselves in a dispute, to use the process of ADR to explore opportunities to achieve a resolution.

The simplest form of ADR is usually ‘Without Prejudice’ negotiations between the parties. ‘Without Prejudice’ means that the parties can discuss the issues in dispute openly and freely with each other, in the knowledge that whatever they have discussed, is not disclosable to other parties and/or the Court and cannot be used against them to support or undermine either party’s position. It normally involves parties making offers of settlement.

Types of ADR procedures:

• Conciliation or mediation: Conciliation identifies what each party wants to achieve from a solution and helps them to achieve that aim by agreement. If successful, this process results in a solution acceptable to all parties. Mediation focuses on the problem and proposes alternatives for resolving the problem. Both are undertaken on a ‘Without Prejudice’ basis and involve the same privilege from disclosure as above. They are confidential and cannot be discussed openly. With both mediation and conciliation, a neutral third party will use skills to assist the parties to find an outcome to help them resolve the dispute and avoid Court proceedings. If either method is unsuccessful and agreement not reached, this does not prevent Court proceedings being commenced.
• Adjudication: An independent person examines the evidence of each party and makes a decision that will normally be binding on the parties. There may be an appeal process but this is subject to the type of adjudication used and will have limitations.
• Arbitration: Arbitration is a formal written only procedure. Most arbitration awards bind all parties. Overturning or altering an arbitration award may be limited to proving certain facts and grounds. The purpose is to achieve a commercial and swift resolution to the dispute to allow the parties to continue with their business.

An experienced solicitor can advise you on which ADR procedures are best for your specific circumstances.

Advantages of ADR

ADR presents several benefits to resolving the problem, for both you and your tenant.

Most importantly, ADR can be a lot less confrontational than Court proceedings. This helps to preserve a non-volatile, professional relationship between landlord and tenant once the dispute is resolved.

The process may be sufficient to resolve the entire dispute or certain aspects of it, reducing any later Court proceedings and making them less costly.

Additionally, most ADR is investigatory – the root of the problem is identified and the focus is on settlement rather than apportioning blame.

The ADR process discloses facts and evidence from each party, meaning all concerned have a greater understanding of the issues involved. This means any subsequent Court proceedings may be simpler, shorter and less costly.

The ADR procedure can also ensure confidentiality by preventing any party from referring to anything disclosed in the ADR that might be sensitive or damaging to either party.

Other benefits include:

• Privacy: ADR is private, thus avoiding adverse publicity that could damage your reputation.
• Affordability: The cost may be cheaper than Court proceedings.
• Determined process: The procedure for resolving the dispute, and the timescale for the procedure, can be fixed by reference to what the parties find convenient.
• Speed: it is a much quicker and faster process.

Finally, the range of achievable solutions from ADR is wider than Court proceedings.

Through ADR, you can reach a specific type of solution that both you and your tenant find acceptable, but which may not be possible from Court proceedings.

Disadvantages of ADR

While there are several benefits to pursuing ADR, there are risks that must be considered.

Crucially, ADR depends on co-operation. All parties have to participate.

If the time limit for making a Court claim is about to expire, ADR may not be appropriate. Unless proceedings are stayed or an agreement reached between the parties to extend the time for ADR to take place, the Court time limit will apply and the parties are forced to adhere to these strict deadlines.

A decision or award, if not complied with by either party, may still have to be enforced through the Courts once the ADR process is complete.

ADR will not be appropriate if you require immediate action to protect your property consisting of an injunction.

Applying for an interim injunction through the Court, might help you to temporarily ringfence your business interests while the substantive dispute awaits determination at trial or by settlement.

At Palmers, we can assist with different types of urgent injunctions which you may need to stop or prevent an action from occurring or to force another party to do something.

Commercial landlord-tenant dispute resolution with Palmers Solicitors

If you are facing a commercial leasehold dispute, it is important to seek legal advice as soon as possible. It is easy to carry out an act that might unwittingly prejudice your position and reduce options that might otherwise have been available to you.

At Palmers Solicitors, our property litigation experts can provide advice and practical support for commercial landlords involved in disputes with their tenants.

We will provide you with clear advice, specific to your situation, to help you understand your options and enable you to resolve the issue in a quick and cost-effective manner.

If you are facing a dispute with your tenant, it is important to act quickly. Contact us today for expert advice and guidance.

If you’re looking to develop and expand your business, you might be considering entering into a joint venture (JV).

JVs can be an effective way to maximise opportunity, minimise risk, and explore new markets.

However, without the right legal structures in place, JVs can quickly become a source of disputes, regulatory issues, and financial losses.

Therefore, it is essential to understand the advantages and disadvantages of entering into a JV before you make any decisions.

What are the advantages of joint ventures?

JVs provide a range of advantages to businesses.

• Shared resources and financial risk: By pooling resources and sharing risk, you can protect your interests and boost your chances of business success.
• Flexibility: A JV can manifest itself in several ways, including as a contractual agreement, a limited liability company, or a partnership. A limited company structure provides a clear well trodden governance structure and protects parties from personal liability, while a Limited Liability Partnership (LLP) can allow for tax efficiencies and maintains some liability protections.
• Tax optimisation: JVs can provide tax efficiencies, particularly in relation to Capital Gains Tax (CGT) and, in cases involving commercial property, Stamp Duty Land Tax (SDLT).

With a JV, you can combine each partner’s unique strengths and share expert knowledge to give your business the best chance of success.

What are the disadvantages of joint ventures?

Although JVs offer many advantages, they are by no means an easy route to business success.

JVs may fail due to clashing priorities, strategies, and corporate cultures.

Some of the issues involved in JVs arise around:

• Control and decision-making difficulties: Without clear governance structures, disputes can arise over everything from profit distribution to day-to-day property management.
• Exit strategies: If one party wishes to leave the JV, how will this be handled? Without a clear legal mechanism in place, disputes can lead to costly litigation.
• Regulatory compliance: If the JV results in market dominance that could be seen as anti-competitive, you risk breaching the Competition Act 1998.
• Tax liabilities: If commercial property is transferred between JV partners, SDLT and CGT may apply.

Without legal agreements and compliance with UK law, JVs can quickly become problematic.

Questions to ask before entering into a joint venture

Open communication and careful planning from the get-go will give your JV the best chance of success.

Before you decide whether or not to enter into a JV, you need to ask yourself – and your proposed partner – some questions.

Gaining clarity on your goals and intentions will help you make decisions in your best interests and ensure your JV has the best chance of success.

• Is your proposed JV partner suitable? You will need to conduct thorough due diligence to ensure that potential partners possess complementary skills, resources, and a similar corporate culture. Additionally, you should consider seeking a partner whose strengths fill gaps in your organisation.
• What’s your vision for the JV, and does your partner share it? All parties involved should make sure they have a shared vision for the partnership by defining clear, mutual objectives.
• How do you intend to work together? Not all JV partners work together in the same way. Some will share resources, while others keep them separate. Maybe you want to have a weekly catch-up with your partner over coffee, or perhaps you would prefer formal meetings once a month. Figuring out these arrangements early on will help to iron out any sticking points.
• How will you foster an environment of open communication? Open and honest communication is essential if JVs are to succeed. You should consider how you will create an environment where JV partners feel comfortable discussing concerns, sharing feedback, and resolving conflicts without receiving backlash.

A well-drafted Shareholders’ Agreement or Joint Venture Agreement will help outline voting rights, exit strategies, and profit allocation, as well as clearly define roles, responsibilities, and dispute resolution strategies.

This way, you can prevent common misunderstandings and significantly reduce the risk of disputes that could jeopardise the success of the JV.

To mitigate potential legal issues, our experts are able to draft and review your JV arrangements early on in the process.

At Palmers Solicitors, we have the knowledge and experience to protect your interests in the partnership and identify any unforeseen liabilities and legal issues.

How Palmers Solicitors can help with your joint venture

Entering a JV can be an exciting step forward for your business, but it must be handled with care to ensure that your goals aren’t derailed by disputes and legal issues.

At Palmers, our Corporate and Commercial law team have a wealth of experience in all business legal matters.

We can advise on structuring the JV and drafting the Shareholders’ or Joint Venture Agreement.

For tailored advice on entering into a joint venture, get in touch with our Corporate and Commercial Department today.

Protections offered by whistleblowing are an essential part of UK employment rights and yet the act itself still retains a stigma that prevents many people from exercising their right.

A new report from Protect, on Attitudes to Whistleblowing, has found a notable difference between generations on the willingness to report concerns.

It has been found that younger generations are less willing to do so and a notable difference between generations in which types of wrongdoing would trigger reporting.

Interestingly, the youngest workers (aged 18-24) were most willing to report sexual harassment.

Whilst 67 per cent of those aged 18-24 said they would be likely to raise a concern if they witnessed sexual harassment in the workplace, only 56 per cent said they would be likely to raise a concern if someone’s health and safety was being put in danger.

In contrast, those in the 55+ age group said they would be more likely to report someone’s health or safety being put in danger (86 per cent) rather than sexual harassment (78 per cent).

Sexual harassment has been highlighted in recent years through the Me Too movement, which may well have impacted the level of people willing to report concerns.

When asked what would prevent them from raising whistleblowing concerns at work, job security and fear of reprisals were dominant for most people, however the older age groups were less concerned about damage to their career than those under 44.

Concerns about damage to mental health were highest within the 35-44 age group.

It is perhaps unsurprising that older age groups were less concerned about damage to their career, as they may have been in their role for a longer period of time and may feel more secure.

Employers have a duty to ensure that employees are not subjected to a detriment and not dismissed on the basis of a protected disclosure.

Whistleblowers are only protected if the concern they raise is a genuine protected disclosure, and the ambiguity around this can put some people off raising concerns.

Evidence shows that it can also be difficult to pursue a whistleblowing claim. In an International Bar Association review in 2021, cases from 2018 were analysed.

It was found that 224 case decisions were rendered in England, Wales and Scotland and only 31 alleged whistleblowers won their case.

Ten of the alleged whistleblowers even had costs orders made against them, which are unusual in Employment Tribunals.

Employers do need to be aware that departing employees can sometimes raise concerns as a parting shot. Even so, these concerns should still be properly investigated.

The Employment Rights Bill extends the definition of a protected disclosure in relation to sexual harassment. The overall increase in the time limit for bringing certain claims may well assist whistleblowers.

Employers often wish to encourage employees to report concerns as they may be unaware of a particular issue and whistleblowing can sometimes uncover serious wrongdoing e.g. fraud.

Employers should offer information and training to employees on their whistleblowing policies and the protection offered to ensure that employees feel confident to raise concerns.

It is also important that employers follow their policies when concerns are raised as this helps employees to feel that it is worth raising a concern.

Employees often feel more comfortable raising concerns with their line manager more informally or another manager that they have regular contact with, rather than reporting to someone they do not know as well, which can feel like a more formal process.

Many employees would not necessarily consider this informal raising of concerns to be whistleblowing, although it may well be under the definition in the legislation.

Employers or employees who have questions about whistleblowing, particularly what counts as a protected disclosure, should seek legal advice at the earliest opportunity.

For further information and advice on whistleblowing, contact our Employment Law team today.

While no one wants to think about what would happen if they lost capacity to make decisions for themselves, the reality is that many people find themselves in that situation every day.

Whether it’s through progressive conditions such as dementia or accidents that result in comas, there are many situations where someone will need a trusted person to make important decisions on their behalf.

This is where Lasting Powers of Attorney (LPAs) come in.

Lasting Powers of Attorney

A Lasting Power of Attorney (LPA) enables you to nominate someone you trust to make important financial and welfare decisions on your behalf if you lose your mental capacity.

There are two forms of LPAs available:

• Health and Welfare – These LPAs allow the attorney(s) to make medical and welfare decisions for you.
• Property and Financial Affairs – These LPAs enable the attorney(s) to make decisions relating to your assets and your finances.

The attorney(s) should be someone you trust as they must follow certain principles and act always in your best interests.

An LPA can be signed at any time while you have mental capacity; however, it can only be used by the attorney once it is registered with the Office of the Public Guardian.

We can advise on the creation and registration of both types of LPA.

Who needs an LPA?

While an LPA might seem like something that only older people need to give serious thought to, the reality is that anyone at any age could fall victim to an accident or illness that takes away their capacity to make decisions for themselves.

Anyone could be in a position where they need someone to make crucial medical decisions on their behalf.

Similarly, anyone with assets or dependents could be in the position where they need someone to make decisions for them.

Can’t my spouse, civil partner or next of kin make these decisions anyway?

While your closest relatives will be informed if you are in hospital, they cannot give consent to treatment or medical procedures on your behalf. They also cannot consent to withdrawing treatment.

Similarly, financial institutions will refuse to deal with anyone other than the account holder, joint account holder or an appointed attorney.

Additionally, some joint accounts can require both or all the account holders to sign for any changes, potentially locking a spouse or partner out of the household income.

Who can I appoint as an attorney?

Anyone over 18 who has capacity can be appointed as an attorney. You can also appoint professionals, such as lawyers or financial advisers, as attorneys.

You can have more than one attorney for each LPA and you don’t need to have the same attorney(s) for both.

You can also have reserve attorneys who can act if your nominated attorney(s) cannot act on your behalf.

What happens if I lose my capacity without an LPA in place?

If you lose mental capacity and you don’t have LPAs in place, your loved ones will have no say over medical decisions or access to your finances unless they are appointed as Deputies by the Court of Protection.

Applying to become Deputies is a very time-consuming and expensive process.

You would also have no say over the person making decisions on your behalf and they might not be someone you would choose or even trust to put in that position.

Preparing LPAs with Palmers Solicitors

At Palmers Solicitors, we can help you set up LPAs that meet your needs and provide vital protection to you and your family should you lose mental capacity.

As with a Will, you should review your LPA after any significant life event and every two years or so in any event.

Doing this will allow you to make sure that the people you have appointed as attorneys are still appropriate and in a position to act should they need to.

To find out more about setting up Lasting Powers of Attorney, contact our Wills and Probate solicitors today.

As the average life expectancy increases in the UK, more and more people need care later in life.

In these circumstances, either you or your family will need to consider the costs of paying for care either in your own home or in a nursing or residential care home.

The rules which determine how elderly care is funded are notoriously complicated.

Paying for care – costs and responsibilities

If a health and needs assessment confirms that you require care, but are not eligible for NHS continuing healthcare funding, then social services will carry out a financial assessment to determine whether you have the means to cover the costs yourself.

This assessment will consider your income (including interest on savings, and pension and benefit payments) and any capital you may have (including savings, investments and owned property).

If you have capital valued at:

• Less than £14,250 – You will not need to pay for your care from your own capital and savings, regardless of whether the care is in your own home or in a residential setting. You will only be expected to make income-based contributions.
• Between £14,250 and £23,250 – You will be eligible for financial support from your local authority, but you will still need to contribute to your care costs.
• More than £23,250 – You will be required to cover the full cost of your care.

If you receive care in your own home, only your savings capital will be taken into account.

The value of your property may be considered if you need to move to a care home.

If you find you have to pay your own care costs, we can advise you on the range of different funding options.

Deferred Payment Agreements

You may be able to enter into a “Deferred Payment Agreement” if you own residential property but are moving away to permanently live in a care home.

A Deferred Payment Agreement is a loan from a local authority set against your home, which will enable you to pay for your care. Interest will be applied to the loan, but you will not be required to sell your home immediately.

This loan also enables any outstanding costs to be paid to the authorities after an individual has passed away.

You must always seek independent, tailored legal advice before you enter into a Deferred Payment Agreement.

Deprivation of assets

Many people give away assets to try and qualify for Local Authority care funding.

However, if the authorities determine that you have deliberately deprived yourself of assets for this purpose, they will regard these assets as “notional capital” – meaning they will still be considered when determining the value of your capital overall.

The local authority may also seek to reclaim the deprived assets.

However, you should still seek professional advice on the legitimate and appropriate management of your financial and property affairs.

Are you entitled to NHS Continuing Care?

You may be eligible for “NHS Continuing Care” if you are transferred to a nursing home from a hospital or are living with a serious health condition.

This means the NHS will pay for all your needs, including the aspects of social care and the hotel costs of residential care, irrespective of your financial circumstances.

People are not always advised that they may be eligible for funding or that they are entitled to a fresh assessment in the light of deteriorating health.

If you think you or a loved one, may be eligible for NHS Continuing Care, we can advise you on the process and recovering any costs you may have paid when you should have been receiving NHS funding.

How can Palmers Solicitors help?

At Palmers Solicitors, we’re passionate and committed to ensuring that you have planned effectively for later in life.

Our Older Client Services team have a wealth of experience in advising clients on funding their care in old age.

Contact our expert solicitors today for tailored advice on funding your care.