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The Property Professional’s Guide to Law “A must read for Estate Agents, Letting Agents, Property Managers and other Property Professionals”
The Property Professional’s Guide to Law
“A must read for Estate Agents, Letting Agents, Property Managers and other Property Professionals”
IntroductionReferred ConveyancingNew HomesCommercial Real EstateHR IssuesEstate Agency LawAcquisitions and Company LawBlock and Estate ManagementPossession ProceedingsDebt RecoveryAttwells’ ServiceAttwells’ Training
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Nick A
ttwell
nick.attw
ell@a
ttwells.co
m
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Introduction“When I founded Attwells Solicitors LLP in 2007 my vision was to create a specialist property law firm to provide services to property people from its Ipswich and London offices.
I trained and worked at a Magic Circle City law firm as a commercial property lawyer before being a Partner of a large regional conveyancing firm. Experience taught me that there was a gap in the market for a law firm that lived and breathed property law and could provide a City-style service at a fair price. Over the past 10 years, Attwells has supported a large number of property professionals across the country. As such Attwells has developed a unique understanding of the legal issues facing property people.
The purpose of this Guide it to tell you a little bit more about ourselves and share some legal knowledge of your sector with you.
Going forward, we hope that you will join us. We look forward to being of service to you.”
- Nick Attwell, Senior Partner
Referred ConveyancingSecrets to Turning the Pipeline Faster
• Immediate issuing of Draft Contracts. Get the draft contract package and management information prepared upon vendor instruction with the agent rather than sale agreed. A comprehensive legal pack can then be sent immediately.
• Information Sharing and Effective Communication. A short conversation between the agent and the lawyer at the outset to understand what the agent knows about the client and the property, and how the agent and lawyer will communicate, will maximise results and save time.
• Work together. It is a bug-bear of lawyers that agents ring up daily chasing. It is a common complaint of agents that lawyers don’t communicate or ask for help. Agents should agree lines of communication and stick to it. Lawyers should identify the non-legal matters and engage with agents to help.
• Report as you go. Still too many buyers’ lawyers will not report until everything is received. Reporting as you go keeps the case moving and identifies problems early.
• Uncover lease issues early. If the property is leasehold check the length of the lease and if too short make sure your lawyer has the expertise for lease extensions (Attwells have a department dedicated to this work). Check any landlord consents required in advance so as to avoid delays later.
• Deposit funds. Often arranging for the deposit to be paid to lawyers is left to the last minute and then there are lengthy delays checking origin of funds. Lawyers should request the information upfront and accept this information from mortgage advisors so as to avoid duplication.
Attwells conveyancing team is one of the busiest and biggest in the Eastern Region and in the Top 100 in the UK.
We work with agents and brokers throughout the country providing conveyancing on a referred basis. These arrangements are beneficial to our estate agent partners because we focus on building strong, long term relationships. Those relationships enable us to complete transactions quickly and foster great relationships.
Attwells service includes:
• A dedicated Account Manager.
• One point of contact for a case and direct line numbers and e-mails.
• Excellent personal service.
• Predicted exchange lists.
• Weekly updates on your target cases.
• A service focused upon the move.
The national average time to complete a conveyancing transaction is 11-13 weeks. Attwells complete on average in less than 8 weeks. Your pipeline will turn faster with us.
Conveyancing Partner Lisa Nyland is a committee member of the Conveyancing Association the voice of the UK conveyancer and the leading trade body of the conveyancing industry working pro-actively to improve the conveyancing process.
If you are looking for property lawyers to work with then Lisa Nyland would be delighted to hear from you and to discuss the options available.
Lisa N
yland
lisa.nyla
nd@
attw
ells.com
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New HomesWho is Eligible for Help to Buy?
Help to buy is a Government initiative which assists first time buyers, as well as homeowners looking to move with a small deposit by providing an additional government funded equity loan and Help to Buy mortgage that makes up the balance of the purchase price.
The home you want to buy must be newly built with a price tag of up to £600,000.
So who is eligible for Help to Buy?
• You cannot buy as a company.
• You cannot own any property at the time of purchase.
• You cannot have any overdue payments on any loans, or any CCJs for more than £500.
• You cannot have had a bankruptcy order in the previous 3 years.
• You must contribute a minimum of 5% deposit to the purchase price.
• You cannot buy to let or let a spare room.
• You can only buy using a repayment mortgage.
• You can use the Help to Buy ISA but you cannot use any other Government scheme.
Attwells New Homes Team have a Unique 8 Step Plan to Help its Clients and Agent Referrers:
Get Ahead of the Pack. Reviewing the developer’s pack and standardising the legals in advance of the sales takes over 2 weeks off the standard conveyancing process. Our New Homes Manager will agree the legals on the site upfront.
Site Visit. Experience tells us that when we have been to the site then it is far easier for us to report to our client and saves time with enquiries. Our New Homes Manager will visit each site and meet the sales team before the sales get underway.
Communication. Jargon-free, honest and realistic conversations with clients and the sales teams so as to ensure all parties can work as one team. Our New Homes Manager is there to help on any sticky case.
Streamlined Process. Attwells “state of the art” case management system has streamlined the process so as to manage efficiently the high volume of conveyancing data. Our lawyers can concentrate on spending time communicating and doing the legal bit.
Tracking. Progress on cases needs to be proactively tracked in order to ensure that deadlines are met. Weekly progress reports are available from the New Homes Manager.
Working with the Developer’s Lawyers. Our lawyers do not see conveyancing as a point scoring exercise. We focus upon the client’s goal of securing their new home as quickly as possible.
New Home Expertise. Help to Buy, Help to Buy ISAs and Shared Ownership are just three examples of Government initiatives that can slow lawyers down. Our lawyers are experienced in all the latest New Homes legislation.
Lender Relationships & Panels. As a member of the Conveyancing Association Attwells meet regularly with lenders and are ahead of the market when it comes to changes to CML Handbook. Attwells is on the panel of all the major mortgage lenders.
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Tanya
Wa
rnesta
nya.w
arnes@
attw
ells.com
Attwells New Homes Team is made up of specialist lawyers who understand that fast and cost-effective pipeline conversion is required to meet the targets and pressures that developers and sales teams experience.
Attwells are also experienced in advising developers and landowners on acquiring land for development.
If you have a New Homes development and are looking for a pro-active firm to work with contact Tanya Warnes to arrange a meeting on site.
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Commercial Real EstateTop 5 Mistakes an Agent makes when Renting Business Premises
Failure to understand the liability of an FRI Lease. Be sure to understand the extent of your repairing obligation. Is it an FRI lease? Are you responsible for the upkeep of the structure? Have you had a survey to ascertain whether the structure is in good repair?
Failure to ensure flexibility for disposal. Make sure you can group company share. Make sure if the premises divides vertically or horizontally that you can sublet part too. Tenant break clause on 3 months notice no restrictions. The property market is uncertain.
Avoid security. Don’t give a PG unless you have to. Keep business and personal finances separate. Don’t tie up valuable cash in a rent deposit limiting cash-flow. Make sure that any security given can be released following 3 years’ of successful trading.
Make sure you have a wide use clause. You may want to do financial or other services.
Avoid a headline rent. Sneaky rent review clauses can lead to the creation of a rent on review of in excess of the market rent. This is a headline rent.
Attwells Commercial Real Estate Team combines impressive technical ability with an innate commercial mindedness to produce an ideal service for our property professional. Having acted for over a decade on all commercial property matters for one of the country’s most prominent independent agencies, we understand the particularities of the Estate Agent sector in a commercial property context.
We will take the time to understand your priorities and the specific issues affecting your business. We place emphasis on building a strong personal relationship with you so that we can more easily accommodate your style of working.
If you are looking to expand your business either by purchasing or leasing new premises, Attwells will negotiate the best possible terms.
If your business owns its own investment portfolio, we will make sure that you receive a full FRI lease with a clean income stream, every time.
In a competitive market, the speed and diligence of your lawyer is key. With Attwells, your lawyers will be proactive in pushing your matter forward to an efficient and satisfactory conclusion. Attwells advise landlords and tenants, large and small, on all types of letting with particular expertise in the property, retail and office sectors.
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Recent Examples of our Work Include:
• Acting for a FTSE100 Company as tenant on taking a £15m lease in prime Central London.
• Sale of a £12m residential development in North London.
• Acting for a major independent estate agency: 1) Lease Renewals 2) Granting Leases 3) Taking Leases in both high street and shopping centre contexts.
• Acting for landlord on the grant of leases in numerous office blocks in Central London.
• Acting for landlord on the negotiation and completion of a tripartite agreement for surrender, subdivision and grant of two new leases over subdivided parts. Tenants consisted of a major supermarket chain and a well known private bank.
Da
vid Bullo
ckd
avid
.bullo
ck@a
ttwells.co
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“We have been very pleased with the work of David Bullock working in association with Nick Attwell. David has taken enormous trouble to make sure everything is dealt with in the most proficient manner; he is very conscientious and highly expeditious. David’s prompt replies to all E-Mails are very much appreciated.“
- Alfred Magnus If you or your clients are looking for expert commercial real estate advice then speak to David Bullock as early as possible who can provide a fixed fee quotation.
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HR Issues5 HR Problems Our Estate Agent Clients Have Faced
Commission Disputes: Our client experienced challenging behaviour from an employee following the restructuring of their commission scheme. Advice was provided which nipped the problem in the bud in days.
Agent’s Joining Competitors: A senior employee left our client to take up employment with a local competitor. A letter was subsequently sent to both the employee and competitor in question, leading to the withdrawal of the job offer.
Dealing with a Poor Performer: Our client was faced with an employee who consistently failed to meet targets. Having been employed for more than 2 years (and therefore protected from unfair dismissal) our client was at risk of a Tribunal claim. We stepped in with the agent’s performance still not meeting the required standard, they were dismissed fairly with no subsequent action being taken against our client.
Managing Sickness: Faced with a long-serving employee who had been absent from the workplace for several months, our client was concerned as to how to manage such absence. With our assistance, a process was put in place which ultimately led to the dismissal of the employee after having followed a fair procedure. No subsequent action followed.
Misconduct: Our client encountered repeated lateness, failure to report absence and generally challenging behaviour from a member of staff employed by the agency for in excess of 8 years. We organised an investigation into the alleged misconduct, undertook an meeting with the staff member and thereafter produced an investigation report. A disciplinary hearing was held and a written warning handed down. Just two weeks later the member of staff in question resigned.
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Employment disputes can be costly, distracting and time consuming. They can interfere with and damage your business and in the event that they do arise, you must deal with them quickly and in the most efficient manner available.
From day one, an employee has in excess of 80 legal rights and the ever changing nature of employment law makes it more and more difficult for employers to stay on the right side of the law. Our Employment and HR Team can provide you with all the advice that you need to stay compliant and to be able to focus on your core business of making deals and growing your business.
We can advise you on the whole employment cycle from advertising for positions, job descriptions, interviewing, terms and conditions and employment contracts, through to promotion, sickness, holiday, disability, maternity, performance management and finally grievance, disciplinary, dismissal, appeal, enforcement of restrictive covenants and the defence of Employment Tribunal proceedings.
Lloyd
Cla
rkello
yd.cla
rke@a
ttwells.co
m
We have within our team an ACAS qualified mediator who can help to resolve disputes quickly and cost effectively.
Our expert lawyers are only ever a phone call away and are available to provide you with the tools to grow your team and to manage and close down problems when they arise. If you have an Employment or HR Issue contact Lloyd Clarke for a confidential chat.
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Consultation on Money Laundering Regulations 2017- What could it mean for Estate Agents?
The Government has launched a consultation on the draft Money Laundering, Terrorist Financing and Transfer of Funds regulations 2017. These will replace the Money Laundering Regulations 2007.
The consultation is covering a wide range of measures aimed at preventing money laundering, but what will it mean for estate agents?
The current Money Laundering Regulations apply to estate agency work such as commercial and residential estate agency services, the new regulations will not change this.
The 2017 regulations have been used to clarify who estate agents need to carry out customer due diligence on.
What is included in carrying out customer due diligence?
• Obtaining the customer’s name
• Photograph on an official document which confirms their identity
• Residential address and date of birth
The best way to do this is to ask for a Government issued document like a passport, along with utility bills, bank statements and other official documents. Other sources of customer information include the electoral register and information held by credit reference agencies such as Experian and Equifax.
Estate Agency Law
Who does Customer Due Diligence need to be Carried out on?
As estate agents tend to act only for one party, it is normal for the agent to only carry out checks on one of the parties in the transaction normally the seller. The Government has received comments that this is a weakness in the current regulations.
Therefore the new regulations clarify that estate agents will have to carry out customer due diligence on buyers, not just the seller for whom they are acting. This is following comments that estate agents are well-positioned to act as ‘’gatekeepers’’ for both parties and they encounter the buyer at an early stage in the transaction.
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Attwells lawyers attend training provided by the National Federation of Property Professionals and approved by both the National Association of Estate Agents (NAEA) and the Association of Residential Letting Agents (ARLA) so you can rest assured the advice you receive is specific, up to date and entirely in sync with the industry in which you operate.
Our estate agent clients value our expert commercial advice delivered with a can do attitude. We can help you to avoid problems and, in the event that they should arise, resolve problems quickly and in particular we can help you with:
• Data Protection - policies, subject access requests and understanding disclosure obligations.
• Understanding your obligations under the Money Laundering Regulations.
• The preparation of robust terms and conditions that will give you the commercial advantage.
• Understanding your obligations in relation to compliance with the Estate Agents Act 1979.
• Viewings and advertising a property to the public – what you can and cannot say or disclose.
• How to deal with a property that may have been mis-described.
• Commission disputes – both with vendors and competing agents.
• Advice on the regulations concerning for sale and to let boards and their size, placement and number.
• Commercial and regulatory advice in relation to setting up and operating an estate agency.
• Compliance with the Bribery Act.
• Complaints handling and advertising standards.
• Consumer rights.
Lloyd
Cla
rkello
yd.cla
rke@a
ttwells.co
m
Our offer is to provide you with a unique one-stop shop for any legal issues that you might encounter in the conduct of your business, providing you with the support that you need to operate confidently and to grow your business.
To find out more about Estate Agency Law contact Lloyd Clarke for a confidential chat.
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Why is a Shareholders Agreement Important?
A Shareholders Agreement is the form of document that a property professional should have in place if he trades with others through a limited company. If the business with others is a partnership then a partnership agreement will be required.
Either form of agreement is an essential pre-requisite to starting a property business with others because as well as providing protection if things go wrong, it also encourages a dialogue between the owners about matters that they may not otherwise wish to discuss.
The principal provisions that should be covered are as follows:
• Expectations of any specific duties to be undertaken by a shareholder.
• Dividend policy.
• Exit arrangements.
• Transfers of shares in the event of death/incapacity and good and bad leaver.
• Restrictive covenants.
• Tag along and drag along rights.
The best starting point is to have a frank discussion around being in business together and the type of issues above and then visit a lawyer to draft the agreement. Rarely does an off-the-shelf document meet a client’s needs.
Acquisitions and Company Law
Attwells deal with matters around incorporation, setting up new businesses or joint ventures with other property people and the form of agreement they should be using.
Some of our larger clients are embarking upon an acquisition strategy and Attwells are therefore a key partner in undertaking the legal due diligence of the Target and drafting and negotiating the purchase agreement.
Recent work we have undertaken for property professionals has included:
• Shareholders Agreement and associated private client advice for a large firm of local accountants.
• Acquisition of a letting business.
• Shareholders documentation and Executive Service Agreements for a new property joint venture.
• Share Acquisition of an Agency.
On acquisitions advice is often needed around whether to undertake a share or asset sale, due diligence on any leasehold premises, securing the lettings book, review of T&Cs of the Target, TUPE and employee issues and suitable warranty and indemnity protection.
We also do the following other company work for our property professionals:
• Company incorporation.
• Companies House compliance.
• Company Books and Board minutes.
• Finance
If your business needs support please contact Nick Attwell.
Nick A
ttwell
nick.attw
ell@a
ttwells.co
m
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Block and Estate ManagementSection 20 and Managing Major Works
If you act for landlords who wish to carry out major works, it is essential that you have a firm understanding of the Section 20 consultation process. Unless this process is followed, the liability of individual lessees will be capped at £250 and the landlord could be left to make up the difference.
The consultation process for major works is summarised on the opposite page and we are more than happy to provide bespoke advice in relation to any specific projects.
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Attwells provide services to agents instructed to manage residential leasehold blocks and commercial freehold and leasehold estates.
Services include recovery of ground rent and service charge arrears together with specialist advice in relation to breaches of leaseholder or freeholder promises under the lease or transfer. In many circumstances, we are able to act on your behalf or your freeholder client on a fixed fee basis and wherever possible we will recover such fees (and indeed your own fees as managing agents) from the tenant or unitholder.
We are experienced in dealing with such cases irrespective of the level of debt or the complexity of the breach of lease or transfer.
Examples of disputes that we have successfully resolved in the past include:
• Laying wooden floors
• Keeping pets in the property
• Alterations carried out without consent
• Flues redirected without consent
• Damage caused to common parts
• Parking unlawfully in the communal car park
• Unlawful sub-letting
We understand that when a tenant or unitholder on an estate behaves unreasonably there can be enormous pressure from other residents or occupiers to find a solution. We are experts in providing fast and cost effective solutions.
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The Block and Estate Management Team also undertakes a lot of lease extension work in particular in London. As we know, flat owners own their flats on contracts granted to them by freeholders. The contract is known as a lease and the lease gives the flat owner the right to live in the flat for a limited period of time.
A lease is like a ticking clock, the term - which is the period of time during which the owner is allowed to occupy the flat - is reducing all of the time. This is a very current issue because many flats were granted on leases in the 1970’s and 1980’s typically on terms of 99 or 125 years. Those leases are now beginning to look quite short.
Our experience is that - depending upon location - a lease becomes difficult to sell when the term is less than 80 years and very difficult to sell when the term is less than 70 years.
In most circumstances, flat owners have the right to extend their leases. If you are marketing a flat with a short lease Attwells’ specialist lawyers can provide you and your clients with the advice needed to ensure that the sale can proceed. For landlord clients we can negotiate informal lease extensions and respond to claims to extend leases and the statutory procedure thereafter.
“Attwells Solicitors LLP has provided a sterling service for one of our Management Company clients. As well as the diligent performance of general legal estate-management support services (receipting notices; approving Deeds of Covenants and issuing Certificates re restrictions of title etc), they have also proved instrumental in investigating and resolving a number of highly complex issues pertaining to our client’s estate. Their debt-collection team is equally effective in producing quick results. Attwells Solicitors is a one-stop shop for all Estate Management issues and we would have no hesitation in recommending their services”.
- Kabir Choudhary (Eddisons)
For a confidential discussion about your needs please contact Will Oakes.
Will O
akes
will.o
akes@
attw
ells.com
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Possession Proceedings
Oliver Ja
mes To
pp
ingo
j.top
ping
@a
ttwells.co
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Possession proceedings are every landlord’s worst nightmare. Their property has been let and you have received the first few rent payments. Everything seems to be going fine until suddenly, without notice, the payments stop. The tenants stop returning your calls and won’t respond to your letters.
Despite background checks, references, and payment on account, the tenants have failed to honour the terms of the tenancy agreement. At the same time, the landlord is worrying about how they will make mortgage payments and recover the mounting rent arrears.
However, the wheels of justice can turn slowly and, to make matters worse, if the correct procedure is not followed to the letter, the Court may adjourn the claim, causing further delay or worse, the claim might be struck out which would mean having to start the process all over again.
The key objective for a landlord is to recover back possession as quickly as possible and minimise the rental void.
Attwells are a law firm with a nationwide reach and regularly act for landlords based in and outside of the UK. We pride ourselves on being able to respond quickly to new instructions and developing scenarios. Where possible we offer a fixed fee for the possession procedure.
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Debt Recovery
At the heart of every successful business is keeping a balanced account and ensuring that you maintain a steady cash flow; of paramount importance to this is regular and reliable payment of your commission accounts.
However, there are occasions where a client decides that they can’t or won’t pay. At this point Attwells are able to help, either through alternative dispute resolution, or through Court proceedings.
Attwells Debt Recovery Team is run by a specialist team of lawyers led by an experienced Senior Partner. We deal with debt recovery matters on a regular basis and have experience in all forms of court proceedings. We aim to obtain Judgment at the earliest opportunity and carry out enforcement swiftly following consultation with you. We are experienced with all methods of enforcement and are able to advise the most appropriate course of action taking in account the assets of the debtor and the costs involved.
If you have landlord clients who need a fast and cost effective possession proceedings undertaken or your business needs recovery of its invoices or commission accounts contact Oliver James Topping to find out the next steps.
Oliver Ja
mes To
pp
ingo
j.top
ping
@a
ttwells.co
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Attwells’ ServiceAll of the Attwells Team is Committed to Providing…
• Jargon free, plain English commercially minded advice.
• A genuine passion and understanding of your industry.
• Monthly retainers or flexible fixed fees that work for you.
• Attendance at board meetings to provide legal input.
• “The Property Professional” - A quarterly newsletter on issues in your sector.
• Training for your team.
“I am pleased to confirm that Attwells have acted as our company’s solicitors for a number of years providing services across the legal spectrum. We have always found that the service has met our expectations by being professional, efficient and pro-active. We have therefore been pleased to refer our clients to Attwells to assist them with their own property related matters which has included conveyancing, debt collection and the gaining of possession of let property. Attwells have worked well with us in ensuring that our clients have a service we can recommend in confidence”
- Chancellors Group of Estate Agents
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Over the years our lawyers have provided in-house training to a range of estate agents, letting agents, housing associations and local authorities. We have also spoken at regional and national gala events. Topics covered have included:
• Possession Claims.
• Turning your Conveyancing Pipe Faster.
• Making the Agent/Solicitor Relationship Work.
• Money Laundering and SDLT.
Attw
ells Solicito
rs0207 722 9898 o
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Attwells’ Training
We offer flexible and bespoke training modules to suit your specific requirements. These training sessions are delivered by experienced lawyers at our premises or yours. Those firms that subscribe to “The Property Professional” are entitled to a 10% discount on our standard training charges. To find out more call Nick Attwell on 0207 722 9898 or e-mail Nick at [email protected] and ask him about training.
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By Phone
Ipswich: 01473 229200 | London 0207 722 9898
On Your High Street
Sun Buildings, 35-37 Princes Street, Ipswich, IP1 1PU
88 St. Johns Wood, High Street, London, NW8 7SH
Online
www.attwells.com
Authorised and regulated by the Solicitors Regulation Authority SRA No.466580
