Archive for April, 2016

Financial implications of the proposed new rules on energy efficiency in commercial buildings

Tuesday, April 19th, 2016

A Property The Assessment of Energy Performance of Non-Domestic Buildings (Scotland) Regulations 2016 are due to come into force on 1st September 2016 and will mean that certain commercial properties must achieve a minimum energy performance level (likely to be an E rating) in order to comply with the Regulations.

This means that commercial properties with an EPC rating of F or G may require costly energy improvement works to meet the new minimum standard.

The application of the Regulations is triggered by the sale or lease of non-domestic buildings or building units with a floor area of more than 1000 square metres and requires the owner of the building or building unit to make available to any proposed purchaser or tenant an “action plan” which details any improvements required to bring the building or building unit into line with the Regulations.

In practical terms, the “action plan” will need to be prepared prior to advertising the building or building unit since the Regulations describe a prospective buyer or tenant as anyone who (a) requests any information about the building from the owner for the purpose of deciding whether to buy or lease the building; (b) makes a request to view the building for the purpose of deciding whether to buy or lease the building; or (c) makes an offer, whether oral or written, to buy or lease the building.

“Section 63 advisors” (who must be employed by approved organisations appointed by the Scottish Ministers) will be responsible for the assessment and preparation of the action plan.  The Regulations provide that any physical improvement measures shall consist of “identified improvement measures” (e.g. boiler replacement, upgrading low energy lighting or installation of insulation), any “alternative improvement measures” recommended by the advisor, or a combination of both.

Any “identified improvement measures” (which are set out in the Schedule to the Regulations) must, in the opinion of the advisor, be able to pay back the initial cost (through reduced energy consumption) within 7 years (or within 15 years, in the case of a replacement boiler).

If improvement measures are required, the owner has two options; to complete the works within 42 months, or defer the works. If the owner elects to defer the works then in the intervening period, the owner must record the building or building unit’s energy consumption via a Display Energy Certificate which must be registered annually.

If the owner is selling the building or building unit and has not implemented improvement measures following an action plan and is not in breach of its obligation to do so (either 42 weeks has not passed or it has registered a valid Display Energy Certificate), the purchaser may prepare their own action plan.  However, if the new action plan does not provide for implementation of operational rating measures via a Display Energy Certificate then the deadline for completion of the works (42 weeks) will be the deadline specified in the original action plan.

With regard to the grant of a new lease, the parties are free to negotiate whether the owner or tenant is to pay for any works outlined in the action plan, much like if a tenant obtained a survey prior to entry and works were identified that needed to be carried out.  In terms of the Regulations, however, the ultimate responsibility for compliance with the Regulations falls to the owner.

There are various exemptions and exclusions from the Regulations:

  • Buildings constructed to the 2002 building standards or more recent standards.
  • Buildings constructed prior to 2002 that have been built to or improved to meet more recent energy standards.
  • Temporary buildings with a planned time of use of 2 years or less.
  • Workshops and non-residential agricultural buildings with low energy demand.
    • Green deal improved properties (where energy improvements have been made under a green deal plan, the Energy Act 2011 containing the framework).
    • The sale or lease of a building at any time before the construction of the building has been completed.
    • The renewal of an existing lease with the same tenant.
      • The grant of a “short term lease” (a lease for a period of not more than 16 weeks which does not include an option to extend its duration) where the building has not been let by the owner during the preceding 36 weeks.
      • Buildings with a floor area of less than 1000 square metres.

Enforcement of the Regulations will be carried out by the local authority where the property is located who have the power to issue a penalty for non-compliance of £1,000.

The Scottish Government Building Standards team are working on detailed practical guidance for the property industry and owners of properties which will be affected by the Regulations should seek advice prior to any proposed sales or leases which are likely to complete after 1 September 2016.

For advice on the implications of the new Regulations or selling or leasing commercial property generally, please contact Commercial Senior Solicitor, Kate Mitchell, on 01224 581581 or by email at k.mitchell@jgcollie.co.uk

Happy New Year!

Tuesday, April 19th, 2016

People talking
What? Happy New Year? But that was months ago, even Easter has come and gone. Indeed, but 6th April is the start of the new tax year, so what are your Financial Resolutions? Maybe you haven’t thought about it yourself, so here a few for you to think about:

  1. Use your allowances – you have annual allowances galore –personal income tax allowance, capital gains tax allowance, annual gift exemption for Inheritance Tax. You have annual allowances for investing in Pension and ISA, but also Venture Capital Trusts and Enterprise Investment Schemes. All potential tax breaks that if not used, are lost forever.
  2. Check your interest rate (savings) – the savings account or ISA you opened last year may have had an attractive rate at the time, but now the introductory bonus may have expired and your cash may be sitting an account earning next to nothing. There is an astonishing £296 billion in Cash ISA accounts earning an average of 0.5% p.a. So if you have £50,000 in your cash ISA, you may earn £250 interest. Could be worse – some accounts are paying 0.1%, meaning £50 for the year. So check what you are actually earning – don’t wait for next year’s statement to discover the unfortunate truth. Now that the first £1000 p.a. of interest is tax free, for most people there is no advantage of a cash ISA over an ordinary bank account. Perhaps consider transferring to a Stocks and Shares ISA with an attractive yield.
  3. Check your interest rate (borrowings) – with interest rates at an all-time low and mortgage rates to match, you should not be paying more than 3% p.a. for your mortgage, loan or credit card, but the average mortgage rate being charged is closer to 5%, loans are routinely charged at around 10% and despite 0% deals being available on credit cards, the average rate is around 18% p.a.

All this is before we come to the changes announced in the recent budget but also changes announced in previous budgets taking effect on 6th April. The UK Tax Code is constantly evolving. The Financial Services business moves to keep up. Achieving your personal objectives in the most tax efficient manner possible, all within your personal risk profile and making full use of all allowances and keeping up to date with all legislative changes, is a big job .

Last resolution – have a financial health check with a suitably qualified and experienced Chartered Financial Planner. James and George Collie Financial Management have a group of seasoned professionals who have expertise in various areas of personal financial planning. A small investment of your time with one of our team could reap huge rewards.

If you wish to arrange a financial health check, or require any other financial advice, please contact John Waddell of James and George Collie Financial Management Limited by email at john.waddell@colliefinancial.co.uk.

The importance of making a will if you own a property abroad

Tuesday, April 19th, 2016

People talking
In my practice of Spanish law, when a Scottish person intends to buy a property in Spain I strongly recommend making a Spanish Will with regard to these assets since it simplifies the process of succession, especially if they intend living in Spain. The document will meet the Spanish formalities, is drawn up in both English and Spanish, is more familiar to the legal professionals involved in the succession in the future (notaries, land register, etc) and the Will remains duly registered in the Spanish Register of Wills.

It is important to remember that when an estate is ongoing in Spain, with regard to any asset located in Spain, there is a legal requirement to request a Certificate from the Spanish Register of Wills and they issue a certificate stating the last Will made by the deceased, when it was made and the notary public who notarised it.

While leaving a Will was advisable prior to 17th of August 2015, since that date it is vital when you own a property abroad unless you don’t mind that some “forced heirship rules” will apply to your succession in the future.

On 17th of August 2015, the European Succession Regulation No. 650/2012 (or “Brussels IV”) came into effect. This regulation aims to uniform succession rules amongst the European Countries to make sure that:

  • a given succession is treated coherently, by one single court applying one single law;
  • citizens are able to choose whether the law applicable to their succession should be that of their last habitual residence or that of their nationality;
  • parallel proceedings and conflicting judicial decisions are avoided;
  • decisions relating to successions given in one EU country are recognised and enforced in other EU countries

We could think that this European Regulation, with no doubt, will improve and will make the process simpler in order to transfer assets when a cross-border succession is involved.  However, we will have to take into consideration that United Kingdom, amongst Denmark and Ireland, opted out and, therefore, do not participate in this Regulation. Despite this fact, the European Regulation will have clear implications for anyone who owns assets in an EU State which has opted in, such as, Spain. Let´s see why:

Article 21 of this Regulation states that:

“Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.”

This means that if you own a house in Spain and you live there on a permanent basis (habitual residence) then the law applicable to your succession would be the Spanish legal system. Under Spanish law, there are some “forced heirship rules” which would apply to your assets and, therefore, it would prevent from disposing of them according to your real wishes. Basically, the spouse and children are entitled by law to some portion of the assets and the testator cannot alter this.

How could we avoid this? We find the solution to this issue in the same Regulation, when article 22 states that:  A person may choose as the law to  govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.” And the subsection 2 of the same article 22 determines how we can carry out this choice: The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition”.

Therefore, if a Scottish person wanted to avoid the application of these “forced heirship rules” the solution would be to make a Will whereby he or she states expressly his or her choice of Scots law as the law that governs his or her succession in the future.

Please contact our Ignacio Chanza, Spanish and Scottish lawyer, who will be able to analyse your circumstances and advise you accordingly, by email at i.chanza@jgcollie.co.uk

Adopting a Child: How we can help

Tuesday, April 19th, 2016

Family with their child
Adopting a child in Scotland is a formal legal process, whereby all the rights and responsibilities relating to a child are transferred to the adoptive parents.  Once the Court grants the adoption order, the adopters become the children’s legal parent or parents.  This decision is permanent and the child’s birth parents will no longer have any rights and responsibilities in respect of the child.

Adoptions can take place for a number of reasons, for example step parent adoptions where couples marry and one party already has a child, perhaps where the birth parent does not take an active interest in the child.  Alternatively, the local authority could have placed a child with a couple, and they wish to go ahead with the legal process of adoption.  The Courts will always base their decision in any action relating to a child on what is in the child’s best interest.  The Courts seek for children to be provided with a stable, secure and nurturing environment, where they can grow and develop into their adult life.

If you decide to proceed with a step child adoption, this is a non-agency adoption.  You must tell the local authority that you want to adopt the child.  The local authority will then investigate your situation carefully and will prepare a report for the Court, to assist them in making their decision about whether or not to grant the adoption.  If you are adopting through an agency, then the local authority will again prepare a report, as part of their process.

If you wish to adopt a child, first of all you require to be assessed.  Adoption agencies require to ensure that people who wish to adopt meet certain legal and other requirements.  After prospective adopters are approved, the agencies try to match them with children who need adoption.  Once you have applied to an adoption agency, the agency will assess whether or not you are suitable to be an adoptive parent.  When the assessment is complete, your application will be referred to the agency’s adoption panel for recommendation about whether you should be approved by the agency or not.  The assessment process usually takes around six to eight months to complete, but each individual agency will keep you informed of any delays in the process.  Once you have been approved as an adopter, unless you have applied for a particular child, it may take some time before a suitable child is found to match you with.  Once you have been approved by the adoption panel, your details will be referred to the National Adoption Register, which contains details of all children waiting to be adopted nationally.  This register is helpful for the local authorities and adoption agencies to use and they will start to try and find a match for you.  Once you have found a possible match, the social work department will become involved and work with you to help you meet and learn about the child.

In order for you to obtain an adoption order, you have to apply through the Court.  We can assist you with this process, and guide you through every step of the way.  The Court process is the same for all types of adoption.  An adoption order cannot be granted until the child has lived with you for at least thirteen weeks.  The child must be at least nineteen weeks old before the order is granted.  The Court’s main concern is to ensure that the child’s welfare is safeguarded and promoted throughout their life.  The legislation sets out a set of principles which the Court must apply when making their decision, and they must also consider the various reports provided by the adoption agency, local authority and other relevant people.

An adoption order will not be made by the Court unless the birth parents agree or unless the Court decides their consent is not needed.  If a Permanence Order has already been granted by the local authority, then the birth parents’ consent is not required.  If the child is aged twelve or over, the child’s formal consent is also required.

James and George Collie can assist and guide you through the whole adoption process – we offer a fixed fee for straightforward adoptions.  Should you wish to enquire or receive further information, please contact our senior court solicitor, Jenni Wilson, at j.wilson@jgcollie.co.uk

Every Cloud…

Tuesday, April 19th, 2016

Plush Living Room
So here we are again!  Recession has hit the North-East once more as well as the global market due to the fall in oil prices.  As many in the profession know this is cyclical but with aging oil fields we need to be armed to deal with the fact that this has a huge impact on house sales in this part of the world.

So we know the problem.  What is the remedy?

Well first of all where we have a stagnant market in the sale of properties particularly at the top end – statistics show that many properties under £200,000 are still moving quite well – it is an opportunity for purchasers to do “deals” on properties which would otherwise have been outwith their price range.  This means that if you are first time purchaser and can obtain mortgage finance you are well placed to put a foot on the property ladder.  In addition if you are moving out of the bracket under £200,000 in to the higher bracket you may well be able to purchase at a lower price.  Be guided by your solicitor.  They know the local market well.

Secondly, sellers out there do not despair!  Good quality and well presented properties always sell well albeit it more slowly.

So how do you gain a march on other sellers?  Well it is really quite simple.  Take a long hard look at your property.  Get the opinion of family members and good friends about how they see your property.  Do they consider it to be dated and needing freshened up, which need not be costly?  Do they think it is cluttered where you can’t see anything for everything?  Can you see the spring flowers in the garden or are they covered in rubbish?  If you are in a flat have fresh flowers and plants around.  It is difficult to be objective about a place that you have lived in for some time and it can be hurtful to hear honest opinions about your “haven.”  But hear it you must if you want to sell.  Estate agents and solicitors can provide could solid advice.  They have seen many a home and know what it takes to sell.  They will be objective where others may not be.

Remember the better times will come again and let us face it nothing worth having in life ever comes that easily!

So!  To summarise!  Deals potentially to be done for purchasers at more realistic prices than in the past and well-presented properties will sell – it will just take time!

Good luck or Buena Suerte as my friend and colleague Ignacio Chanza, our dual qualified Scottish Lawyer and Spanish Solicitor would say! For more information regarding buying and selling residential properties please contact Anne-Maryse Churchill at am.churchill@jgcollie.co.uk

Celebrating 175 Years

Tuesday, April 19th, 2016

Prices-Rising

We are delighted to be celebrating a landmark anniversary for James and George Collie!

In 1841, the practice was established by James Collie, making us one of the longest-serving legal businesses in the north-east of Scotland. Now, 175 years on, we continue to act for clients in this area and further afield, offering a complete range of legal services. Our aim is to be here for at least another 175 years, serving the future generations of our existing clients and strengthening our partnerships with businesses across the region.

After being founded in 1841, the practice grew into its existing partnership in 1856 when George Collie joined his brother. Since then, the firm has used its historic foundations to mature into the fabric of the Aberdeen business community. The firm is proud to have retained its status as a full service firm to ensure all of our clients’ needs are met. The blend of legal expertise and in-depth local knowledge ensures our clients are provided with a dedicated no-nonsense approach when our services are required.

In recent years, James and George Collie has acquired established law firms in the north-east, enhancing our position as a leading player in local sector. The firm acquired Cooper & Hay in 2005 with current partners Forbes F. McLennan and John W. Sinclair joining. In 2009, Aberdeen’s first female sole-practitioner, Anne-Maryse Churchill of Churchill & Co joined forces. Kinnear and Falconer, the highly regarded practice based in Stonehaven, was acquired in 2010. The firm of Kinnear and Falconer has served the Stonehaven area for over 150 years, mirroring the rich traditions and longevity of James and George Collie. The professional link between James and George Collie and Kinnear and Falconer ensures that some of the most valued members of the North-east’s legal profession, covering all the professions disciplines, are in place to help our clients.

We look forward to celebrating our anniversary year and to serving you in the future. From property sales through our Aberdeen and Stonehaven estate agency offices and purchases using our expert conveyancing department to employment and family law, the firm will offer a bespoke service to suit your needs.  The Executry department encompassing wills, estates and trusts, as well as inheritance and income tax planning, will be readily available to assist you and your family when required. Our court department handles civil litigation, insolvency, debt collection and matrimonial work, while our commercial and corporate departments act for businesses of all sizes in the North-east.  Landlords and tenants can access advice and guidance from experts in our commercial leasing department where deals are facilitated.  We also offer one of the largest furnished property leasing departments in the area.

James and George Collie would like to thank you for all of your support in the past and look forward to servicing your needs and requirements over the next 175 years!