J&G Collie

Introduction

As most of the Top Gear fans amongst you will know if you accumulate 12 points or more on your driving licence you can be disqualified from driving. However, this is not by any means a foregone conclusion.

Statutory Basis

The relevant piece of legislation is Section 35 of the Road Traffic Offenders Act 1988 which provides that the court must order the driver to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order the driver to be disqualified for a shorter period or not to order the driver to be disqualified at all.

Minimum Period

The minimum period of disqualification is 6 months where no previous disqualification (lasting 56 days or more) has been imposed on the driver within 3 years immediately preceding the commission of the date of the offence (rather than the date of conviction by the court) which results in the totting-up procedure being applied. The minimum period rises to 1 year where there has been a single previous disqualification and 2 years if the driver has received 2 or more such previous disqualifications.

Exceptional Hardship Hearing

Section 35(4) represents a significant restriction on the circumstances that can be taken into account by the court when deciding whether or not to apply the totting-up procedure. This states that no account is to be taken of hardship, other than exceptional hardship.

Both the circumstances of the offence and of the offender can be taken into account. Each case is considered on its own merits. The court has taken into account the following circumstances in the past: the likelihood of the loss of employment to the driver as a result of the disqualification and the effect that this may have on their family (or employees and their families where the driver has their own business); having an ill child or other member of family who requires regular transport to and from hospital; and the lack of nearby available public transport as an alternative means of transport.

However, it must be emphasised that these factors are not be any means exhaustive or conclusive. If you find yourself subject to the totting-up procedure or are prosecuted for any road traffic matter or indeed any other criminal offence please do not hesitate to contact Duncan Love, Denis Daun or Steven Gauld.

When is a garage not a garage? A garage is described as ‘a building or shed for housing a motor vehicle’. So, what is a motor vehicle? Can this include a motorbike? A moped? Anything with an internal engine? These are the kinds of questions solicitors and estate agents will have to consider asking themselves. If a property is misrepresented in some way, an individual will potentially have a claim against that firm or company under the Property Misdescriptions Act 1991.

This Act “prohibits the giving of false or misleading statements in certain specified matters in the course of estate agency or property development business”. This can include a wide variety of statements as well as pictures and videos. Although having your clients fill in and sign their Property Questionnaire minimises the risk, it will not protect you if you print a misdescription you could have reasonably checked yourself. The maximum fine on summary conviction is £5,000 per offence and on conviction on indictment an unlimited fine.

A false statement is one which is false to a material extent (i.e. not trivial). A material degree will vary with circumstances and an objectivity test will apply. The extent to which a statement is false must be material but it is possible for a statement to be misleading without actually being false if a reasonable person would draw a false inference from it. Equally a statement may be misleading if it is incomplete. The Act does not create a duty to volunteer information but imposes an obligation to ensure that any details which are given are accurate.

In considering whether an offence had been committed, a court would be likely to base its view on what a normal prospective purchaser would consider to be false to a material degree having regard to generally accepted standards. An example of a property misdescription can include describing an entire property as ‘recently re-decorated and beautifully refurbished’ when this can only apply to 1 or 2 rooms in the property. The Act does not require you to disclose defects such as a leaky roof. However, the description as a whole must not give the impression that the property does not have that defect. And of course, if a garage cannot accommodate a motor vehicle, it should not be described as a garage.

There is a defence to show that all reasonable steps have been taken and all due diligence exercised to avoid committing the offence. General disclaimers are not prohibited by the 1991 Act. They cannot be relied on in preventing an offence, however, there are some cases where a specific qualifying description may be acceptable. A qualification may be applied to the working order of household appliances or central heating. The crucial fact in assessing whether a qualified description is valid is the ease with which you could have reasonably checked it.

The Government is currently reviewing the need for the Property Misdescriptions Act in view of the introduction of the Consumer Protection from Unfair Trading Regulations in 2008. A consultation paper issued by the Department for Business Innovation and Skills in early 2011 indicated that the thinking was that consumers are protected by two broadly equivalent pieces of legislation. This duplication may be unnecessary and the 1991 Act could potentially be repealed without affecting consumers.

Nonetheless, this is something that many businesses and estate agencies should be aware of. It may not be practicable to have your Oxford Dictionary on stand by every time a property schedule is prepared, but no fact should be misleading or false to a material degree. Beware what you say, what you type and what you sell!

For further information please contact our Property Sales Team at our 220 Union Street Office, Telephone 01224 572777.

In Scotland, the law tells us who will inherit your estate when you die without making a Will.  This can give rise to your assets going to someone who you may not be pleased will benefit.  There are quite a few misconceptions about this, including the wrong assumption that your spouse will automatically inherit everything.  This is not always the case.

Under the Scottish laws of intestacy, your spouse or civil partner is entitled to certain preferential rights to certain parts of your estate.  These are known as Prior Rights.  The value of these rights increased substantially on 1 February 2012.   Your spouse or civil partner is entitled to your interest in your home, up to a value of £473,000, a huge increase from its previous level of £300,000.  The Scottish Government was hopeful that this level would cover the majority of properties in Scotland.  Your spouse or civil partner is also entitled to furniture and contents in the home, up to a value of £29,000 increased from £25,000.

The final part of Prior Rights means that your spouse or civil partner is entitled to a cash sum of £50,000 if you leave children or £89,000 if you have no children.  These figures have been increased from £42,000 and £75,000 respectively.

After all this, then your spouse or civil partner is entitled to claim his or her legal rights.   This is a share in what remains in your net moveable estate, which is usually everything except buildings or land.   This will amount to a one-third share if you have children or descendants, and one-half if you have not.   If you have children or descendants, then they also will be entitled to their legal rights in your estate, one-third if you have children or descendants, or one-half if you do not.   Needless to say, with a higher level of Prior Rights now, it is possible that a spouse or a civil partner will inherit everything in your estate, even if you have children.   However bear in mind that if this is a second marriage, and you have children from the first marriage, then it is possible that they will receive nothing on your death and they would not have any automatic rights of inheritance on the death of your second spouse or civil partner.

After these Prior and Legal Rights have been dealt with, then the remainder of the estate could go to your spouse, but only if you do not leave any children or descendants or parents or brothers or sisters or similar relatives.  These other relatives would all be entitled to share in your estate to the exclusion of your spouse.

You should also be aware that it is now law that if you have been co-habiting with someone, and die without making a Will, that co-habitee could raise an action to claim a share in your estate as well.   On the other hand it is however important to note that if you co-habit with your partner, there is no guarantee that he or she will inherit anything, unless you make a Will and name them as a beneficiary.

As you will have seen, this is a complex area and it is much better to set up a Will in which you can say who you wish to inherit your estate.  This is particularly important where you have a second marriage and you want to be as definite as you can be about who you want to benefit.   It is also true that if you die without making a Will, it is more expensive to administer your estate, as additional work has to be carried out.

For any further advice regarding your Wills, please contact Philip Dawson on p.dawson@jgcollie.co.uk or Vivienne Bruce. On v.bruce@jgcollie.co.uk.

Whilst we have been fortunate in the Aberdeen area to see the property market holding its own times are tough and selling your home cannot be taken for granted.

Sprucing up your house or home staging as it is known has become increasingly popular over the years and Ann Maurice the American house doctor is famous for her no – nonsense approach to it.  A mixture of flair and practicality has become her trademark. Our very own “Ann Maurice” – Anne-Maryse Churchill offers some practical advice.

Your home is the biggest investment of your life in most cases and it is important to make the very best of it.  I have known many sellers to say that they wish they had spruced up their homes for them to enjoy rather than for the benefit of the purchaser.  Some have even fallen in love again with their homes and simply decided to stay put, renovate or extend.

De-cluttering your home can make you feel good about yourself and your house.  Cast a critical eye over your property and take advice from well trusted friends or relatives about what needs to be done.  Be realistic, if you cannot afford to spend very much, a simple freshen up of paintwork and linen can make a big difference.  It goes without saying that a clean, bright, fresh smelling house is going to be much more attractive to a prospective purchaser.  The old adage of freshly baked bread and “real” coffee does make a difference. Flowers, pretty pictures, stylish colours of throws and cushions are all effective.  Compare that with old newspapers and flowing ashtrays and you get the picture! It is about selling a life style and giving viewers the ability to imagine themselves staying there.  That is why show homes are so effective.

When showing your property get someone to take the children and pets out to enjoy an activity away from the home to allow you to make things “just so” and speak to your viewer properly without distraction.

Lastly if you cannot afford your own home stylist simply search the internet for a wide range of ideas.  Ann Maurice has her own website known as The House Doctor Network which is a great starting point.

Good luck with the sale of your property.  Our own in-house team at James & George Collie Sales Department are always on hand and delighted to help. They can be contacted at 220 Union Street, Aberdeen, AB10 1TL on 01224-572777.

For more information on selling your home, please contact Anne-Maryse Churchill on 01224-581581.

The Home Report has been with us in Scotland since 1^st December 2008 and it is fair to say the opinion is divided on whether or not it has been a success or, as claimed by its supporters, provides value for money.

However, as the Home Report was introduced by an SNP Administration, it is safe to say that it will remain and be an integral part of the house buying and selling process until at least 2016.

Whether a buyer or seller, it should be borne in mind that the property valuation brought out in the Single Survey Section of the Home Report is little more than a guesstimate by a surveyor of the median price that might be agreed upon between a willing buyer and a willing seller.

The reality is, and always has been, however, that a property is only worth what someone is prepared to pay for it on a given day. 

As ever, market forces, such a supply and demand, will play a significant role in what price a property achieves.   Whether or not there are competing bids will also have a bearing.  In the current market, it is highly unlikely that a property will sell for above valuation, unless there are competing offers.

It is perhaps misguided to regard a single survey valuation in the same way as one would regard the price of an ounce of gold or silver, for example.  It is understandable for a seller to feel that he or she is making a loss by accepting a below valuation offer but, in reality, there will only be a true loss if the price accepted is lower than the price the seller paid for the property in the first place.  

A further pointer to be borne in mind is that whilst most Banks and Building Societies will accept an in date Home Report (ie. a Home Report which is no more than 12 weeks old when considered by the Lender’s underwriter) certain lenders may insist on commissioning their own valuation.   The cost of that valuation will be passed onto the buyer, and may be comparatively expensive as in addition to the amount paid to the surveyor, the “Valuation Fee” may incorporate an administration charge which is retained by the Lender.

As such, it is always prudent for a buyer to liaise with his or her Mortgage Advisor, or the Lender directly, at the start of the buying process to ascertain whether or not the Home Report commissioned by the seller will be acceptable to the intended Lender.

For more information on Home Reports when buying or selling a property, please contact Rory Cradock on 01224-581581.

Do you have a relative or friend who is incapable or unable to manage their affairs?  A person’s capacity could be impaired gradually as a result of an illness such as dementia or suddenly as a result of an accident.  A doctor will be able to confirm whether or not that person is able to make decisions.  Depending on the nature of the decisions which need to be made, you may not have the automatic right to take actions on behalf that person.  If a person is incapable those close to them may need legal authority to do certain things for that person.  Where a young person is incapable, their parents are able to manage their affairs on their behalf until they reach the age of 16, but following their 16^th birthday, legal authority will usually be required.  However, if there is not already a power of attorney in place giving you or someone else the authority to do these things then all is not lost.

It is possible to apply to the Sheriff Court to be appointed as the incapable adult’s Guardian under the terms of the Adults with Incapacity (Scotland) Act 2000.  This would allow you as the guardian to manage on an ongoing basis the financial or welfare affairs, or both of the incapable adult.  Financial guardianship can allow you to take decisions regarding selling the adult’s house, paying bills, signing documents on their behalf, making investment decisions etc.  Welfare guardianship can allow you to take decisions about where the adult should live, what medical or dental treatment they should receive, with whom the adult should socialise, etc.  The application to the court must be supported by two medical reports and a further report on the suitability of the proposed guardian.  Once a guardian has been appointed, the Office of the Public Guardian (Scotland) in Falkirk, supervises the guardian’s dealings concerning the adult’s finances and property.  If you are applying for a guardianship order relating to the personal welfare of the incapable adult, or relating to both the financial affairs and personal welfare of the incapable adult, then you may be able to apply for civil legal aid to help with the legal costs of making the application.

Where ongoing decisions are not going to be required, then an Intervention Order can allow someone to do a one off specific thing such as sell the house belonging to an incapable adult.  An Intervention Order requires a similar application to the court and medical and other supporting documentation will also be required. 

If full financial guardianship is not required, another option is to apply to the Office of the Public Guardian (Scotland) for authority to access the incapable adult’s funds through the Access to Funds scheme.  This scheme allows money to be transferred from the incapable adult’s bank account into a new account set up for the purposes of the scheme to pay day to day living expenses such as utility bills or care home fees.  It can also be used to request a lump sum to pay off any existing debts or to purchase specific items required by the adult. 

Obviously it is preferable for a Continuing and Welfare Power of Attorney in favour of a trusted relative, friend or solicitor to be set up before it is too late!  A Power of Attorney allows a person to nominate who they would like to be able to take decisions on their behalf in the event of them not being capable of making those decisions.  A Power of Attorney can be thought of like an insurance policy, it is something which you hope you don’t ever need, but it gives you peace of mind to have one in place, just in case.

For information or advice on Powers of Attorney or Guardianship, please contact Vivienne Bruce on 01224-581581

High north-east housing costs means the average age of first-time buyers in Aberdeen and the north-east is higher than in most other parts of the country.

The average age of first-time property buyers in Scotland may be lower than in other parts of the UK, but it’s a different story in the north-east because prices are forcing young people to remain with their parents for longer.

The need for first-time buyers to find bigger deposits before they are considered by lenders for a mortgage, has meant they are having to wait longer as they save up.

In Aberdeen, where house prices are higher than in other parts of Scotland, the wait to gain a foothold on the property ladder is longer and while the Scottish average is 27-years-old, it is 30 and older in the Granite City and the surrounding area.

A recent survey revealed that areas with the youngest first time buyers are also those where housing affordability conditions are the most favourable. Nine of the ten local areas with the youngest buyers have an average house price to average earnings ratio for first time buyers below 4.
In the ten areas with the oldest first time buyers, six were where the average first time buyer price is above the Scotland average of  £105,401. These are Edinburgh at 37%, Moray at 7%, Highland at 12%, Aberdeenshire at 28%, East Lothian at 47% and East Renfrewshire at 28%.
Those who have managed to buy a property within the last two to three years, tend to have been helped financially by their parents or other members of the family.

However, there are a sizeable number who simply have to stay at home and save longer and harder for their start. What this means is that the one and two-bed flat market is also sticking with owners who purchased prior to the credit crunch finding it more difficult to sell and climb the ladder.

The result is that the letting market, particularly for central, one-bedroom flats, is booming and that properties of that size are difficult to come by. When they do become available for lease, they are normally snapped-up within a few days.

There are still 90% and 95% mortgages around but the conditions attached to them are stringent.

For further information contact Brian Sutton on 01224 581581, alternatively via email: b.sutton@jgcollie.co.uk

At this festive time of year the negative effects of taxation will be far from your mind, but you should be aware that the clock is ticking when it comes to planning for a more tax-efficient New Year for you and your nearest and dearest.

Whether it is Income Tax (50% maximum rate of tax), Capital Gains Tax (28% maximum) or Inheritance Tax (40% maximum), if you do not take positive steps to ensure you are making maximum use of all the options available to you in relation to tax planning, you will find that HMRC may be the one that gets the biggest present in 2012.

By undertaking a full review of your financial circumstances, with proper regard given to your own goals and objectives, it is possible to ensure that you do not pay more tax than is necessary, protect capital growth, protect assets from the effects of long term care costs and ensure that you safeguard your future legacy to family and those closest to you.

In most cases the answers to many peoples taxation concerns are relatively straightforward, but even where they are not, our highly qualified, experienced consultants – working alongside our colleagues on the legal side of James & George Collie – will be able to provide you with a solution tailored specifically to your needs.

So why not give yourself a great present this Christmas, and make an appointment to meet one of our fully independent (and jolly!) Financial Consultants in the New Year.

To arrange an appointment please call Holly Smith on 01224 581581, or e-mail her on hsmith@colliefinancial.co.uk

In the run up to Christmas shopkeepers and publicans, hoteliers and restrauteurs will be working flat out to ensure that we all have a fantastic time whether  we go out to celebrate with workmates and colleagues or decide to stay in with family and friends. Most of us enjoy a wee drink at this time of year, even those amongst us who do not normally indulge. Why not? It’s Christmas time.

If you are 25 or under or are with someone looking 25 or under all of the licensees above are likely to ask  for age identification. Why? Because the Scottish Government has decided that all persons selling or serving alcohol need to be sure that the person buying alcohol or for whom alcohol is being bought is over the age of 18. Challenge 25 means that any person who as they say “Is lucky enough to look under 25” can b e asked to prove their age by reference to approved forms of identification. These are a current passport or EU photo driver’s licence or a Young Scot or Citizen Card bearing the PASS hologram card. Many of us have passports and driver’s licences however these documents, if they are lost or stolen on a night out, are very expensive to replace. A passport is £77.50 or £112.50 for fast track service and £20.00 for a replacement driver’s licence. Money which is better in your pockets than in those of the civil service!

A Young Scot card or entitlement card is however free. Many of you or your children will already have one as they have been issued through most schools for the last few years. It may of course be the time to check to see whether the photograph resembles the carrier because if it does not service of alcohol will be refused.

If you or your family  have left school, you can apply to get a free card from your local council.

Aberdeen City Young Scot – dialogueyouth@aberdeencity.gov.uk, 01224 538003
Aberdeenshire Dialogue Youth – dialogueyouth@aberdeenshire.gov.uk, 0845 608 1200
Dundee, 01382 433030
Young Scot – www.youngscot.org/card – infoline@youngscot.org, 0808 801 0338

The great thing about the Young Scot Entitlement  card is the discounts at over 1,400 outlets around Scotland. Check out the discounts section for a full list of discounts. It is also part of the European Youth Card Network which means you could get over 100,000 discounts in 42 countries. Check out eyca.org/discounts to find the discounts available in other countries. So it’s worth encouraging persons 26 and under to get a card.

One of the questions often asked by parents is “Can I buy son/daughter a drink when we are out?” The answer is Yes but only if the child is 16 or 17 years old,  is having a meal and if the premises manager so  permits.  Persons aged 16 and 17 can no longer buy a drink for themselves when they are having a meal.

For licensing queries, please contact Anthony Dawson or Janet Hood on 01224 581581