Archive for April, 2012

12 Penalty Points On Your Driving Licence – Automatic Disqualification? – Think Again!

Monday, April 23rd, 2012

speedingIntroduction

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.

Sticks and stones may break my bones, but words will never hurt me? – Beware of the Property Misdescriptions Act 1991

Monday, April 23rd, 2012

refurbishedWhen 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.

What if You Don’t Have a Will?

Monday, April 23rd, 2012

will2In 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.

What if you don’t have a Will? 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 to 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. It is however important to note that if you co-habit with your partner, there is no guarantee that he or she will be inherit anything, unless you make a Will.

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 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 whom 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.