Patron Membership of the Hertfordshire Chamber of Commerce and what it means for us

It is undoubtedly the case that the Chamber serves an extremely important function with the economy of the region and it is with this in mind that we decided in January of this year to commit to Patron membership.

In these uncertain times the success of any business is dependent on the economic conditions within the region in which the business is located. Breeze & Wyles Solicitors LLP has been a member of the Hertfordshire Chamber of Commerce and Industry but perhaps could have used membership to its greater advantage. In recent times, it has become clear that it is very much in our interests to engage with the right people and to play an active role in the economic growth of the region.

In the recession, we have been generating a significant number of opportunities but were finding it increasingly difficult to reach potential customers despite the marketability of the propositions. Following discussions with the Chamber it has become clear that we and the Chamber have very similar development areas. It enables us to ensure that credible people demonstrate belief in the ideas that we have and assist us in promoting them for the benefit of the region.

An example of this is one that I have been trying to develop since I joined the firm in 1996. I was keen to provide a legal surgery within Hertfordshire that would allow potential clients to have a ‘sounding board’ for their problems, areas of development or potential successes. Over the years this has become increasing difficult to achieve. However, upon becoming a Patron member the Chamber has shown increasing interest in the various projects of which this is one. This project enables us to meet potential clients, and also to point potential clients to other professional service providers and businesses where opportunities may arise for them. In tandem with my ‘Lonely Business Owner’ blog to be found at http://www.breezeplus.co.uk/blog/ this provides some of the support that regional businesses may require particularly in the hoped-for growth phase of the economic cycle when development can be constrained by lack of funding and information.

Bearing this in mind we must ensure that we get value for money for our membership. This can only be achieved if we work hard at what we wish to achieve from it. As the economy grows so will our business and with this in mind we wish to participate closely with some of the educational establishments who are members to develop local talent and provide a solution to the skills gap. This will have a long term benefit for our business in that it will both provide excellence in new staff and further our objective to enhance the reputation of our brand.

We hope that our membership and involvement will enhance the profile of the Chamber and its benefits leading to both greater participation and increased membership. We look forward to working closely with the Chamber in the future

Brendan OBrien
Director and Head of Company/Commercial and Corporate Recovery
Monday, 29 March 2010


Intellectual property: Whats that?

This type of property is divided into two areas:

1. Industrial property, which includes protection for inventions, trademarks and industrial designs; and
2. Copyright, which includes protection for literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

The rights and protection provided by copyright extend to other parties involved in the creation of the work.

Experience suggests that very few businesses understand the amount of intellectual property that they own, its value to them and how to best exploit it. Invariably businesses tend only to know its value or indeed of its existence when it is stolen or infringed and that action has an impact on the business.

The simplest example of Intellectual Property is the main essence of goodwill. The Trade Name or brand of the business or through which the business trades is key to the business and it is an commercial imperative that these are protected. The best example lies in the value of some of our major brand where in fact their greatest value is in their trade names.

An inventor would never go to market with his/her invention without first obtaining the protections afforded to that product. Why should business with good trading names do otherwise. Well in fact they do and it is the exception rather than the norm that trade names are protected by registration.

The distinction between an unregistered trade name and one is registered is for another time but suffice to say that it is very much in the interest of a business to register its mark/name in respect of the goods which they sell. If the business had such a registered trade mark in the case, an action would have been so much more straightforward that it might have been worth pursuing for the injunction and damages, and importantly, legal costs.

Examples occur all over the place where someone breaches a businesses trade name. threats are made to cease and desist. With an unregistered mark/name it is almost impossible to do anything further once the breach has stopped occuring. Whereas if registered the business is provided with better protection under statutory provisions relating to trade marks. The business would then have the ability to proceed for damages whilst ensuring recovery of the legal costs of preventing a continuation of the breach.

Brendan OBrien
Intellectual Property Group


Private Sector Housing: Terminating a Tenancy under s21 of the Housing Act 1988

This seemingly, relatively simple piece of legislation can cause problems for both Agents and Landlords and a few simple precautions may avoid problems with the courts and as a result disgruntled Landlords.

S21 allows a landlord to regain possession of their rented property when a tenancy agreement has come to an end by giving two months notice to the tenant.

Proceedings can usually be issued using the Accelerated Possession Procedure under Part 55 of the Civil Procedure Rules. Using the Accelerated Procedure means that all the documentation is lodged with the court and so long as it is all in order and the tenant does not dispute any of the documentation and is unable to provide a good reason (e.g. special hardship) why the landlord should not be given an Order for Possession, the court will make the order without the need for a hearing.

Issues on the notice given is one of the most common reasons why proceedings may be dismissed outright or set down for hearing. Either way it incurs further costs for the landlord and possibly Agents if it is their mistake. Some of the more common reasons for claiming the notice is invalid are:

(a) It was never received - so much easier to ensure there is proof of the service of the notice which can be included in the court documentation
(b) The notice was served before the tenancy began
(c) An incorrect notice was served

Before discussing ways to avoid the above difficulties, it should be noted that under the Act there are two different notices which can be served and deciding which one to use is dependant upon whether the tenancy has expired or not when the notice is served.

If a notice is served during the course of the fixed term tenancy then a notice under s21(1) of the Housing Act can be served giving "not less than two months’ stating that he requires possession of the dwelling house". So long as the Landlord or Agent gives the two months' notice in writing the notice will be valid and does not need to specify a termination date – but if one is specified ensure that it is a date that is more than two months after the date of receipt by the tenant of the notice. The notice does not need to be in any particular form but most agents use a standard form.

If the tenancy has expired and has become a "periodic" tenancy then Notices under s21(4) must be given.

These notices must be more specific and must specify an end date and the date must be the last day of a period of a tenancy. Consideration should be given to including some appropriate 'fall back' wording in case the date specified turns out to be wrong. Again it is usual for Landlord and Agents to use a standard form but completion of it must be accurate.

Avoiding the problems

It is fairly common for Agents to attach a s21(1) Notice to the tenancy agreement at the outset. The tenant comes in to their offices to sign the agreement and is given a notice at the same time, often attached to the back of the tenancy agreement. They do not see the s21 notice attached, or claim that they did not see it, and when proceedings are issued, they claim that they have never received one. By putting an extra paragraph at the bottom of the notice "I confirm that I have received this notice on the.." etc. and having it and a duplicate copy to be kept on file signed by the tenant may avoid this. However, this won't help where you are sending a s21(4) notice in the post.

Even if you get the tenant to sign the bottom of the document it does not avoid a potential claim that the notice was served before the tenancy began. It is often the case that tenants will pop into the Agent's offices to sign documents before the tenancy has begun and service of the notice attached to the back of the tenancy agreement may defeat or at least cause argument in any action that the landlord wishes to take in the future.

To be absolutely safe and to avoid the above issues it is always best to serve the notice by recorded delivery post the day after the term of the tenancy has begun. In the beginning it is unlikely that a tenant would refuse to accept recorded delivery post and a copy of their signature can be kept on the file. If the recorded delivery was not accepted there would be ample time to consider and make arrangements to serve the notice by hand with the person serving it signing a certificate of the date time and circumstances of service for use in the court papers later.

As previously stated when a tenancy has become a periodic tenancy it is very important that the correct notice is served detailing the information required under the Act. Standard forms will usually incorporate all the relevant information but it is important to make sure that the dates are correct and/or have a fall back provision as described above. There must be two clear months and the date must be the last day of the period of the tenancy. Remember that it will probably only become a periodic tenancy if the terms are the same as the original tenancy, otherwise it is possibly a replacement tenancy and you are back to the beginning of serving a s21(1) notice and not being able to start proceedings until the further into the new tenancy.

Can you rely on the s21(1) Notice served at the outset during the periodic tenancy? The answer is 'yes', unless you have in any way invalidated the original Notice, for example by giving the tenant a new tenancy agreement, confirming in writing that the tenancy is now a periodic tenancy and you will give them two months notice if you want them to leave..

There are also other areas that can cause problems when seeking possession. For example:

Ensure the 'landlord' named in the tenancy agreement is in fact the person who is the legal owner or tenant of the property and has the legal ability to grant the tenancy and that where there is more than one they are all named as landlord;

Ensure compliance with legislation relation to deposit protection

Keep true and complete copies of the final signed agreement and other documents and, if appropriate certificates or other documentary evidence of service of notices so that these items can be included in the papers submitted to the court

I hope this helps and if in doubt it is always best to seek legal advice.

Rita Wright
Legal Executive
Housing Team


Budget: Stamp Duty Technical Update

Following the Stamp Duty changes announced by Alistair Darling today in his 2010 Budget, practitioners and clients alike are asking the question: what is a first time buyer?

You should be able to find your answer here - http://www.hmrc.gov.uk/budget2010/sdlt-qa-tech-1545.pdf

In essence, the guidance splits the process of determination into three parts

What is the Land?
What is the price?
Who is the purchaser?

The answers are

The Land

The land must consist wholly of residential property being freehold or leasehold (with at least 21 years left to run) and to be used as the purchasers only or main residence.

The Price

The price must not exceed GBP250,000 for a freehold interest or the assignment of a lease and in the case of a grant of a new lease also must not exceed GBP250,000.00. Where the rent is significant and tax will be charged on it relief cannot be obtained against that amount.

The Purchaser

The purchase must be a person who intends to occupy the property as his or her main residence and who has not either alone or with others, previously acquired a major interest in land which includes residential property, or an equivalent interest in land situated anywhere in the world. An exlcusion exists in relation to land owned being leasehold where there is less than 21 years left to run.

Note for practitioners 1: You must check the completions that you have from tomorrow to ensure that all of your clients fulfilling this criteria are able to take advantage of the relief. Ensure declarations are sent to clients now!

Note for practitioners 2: When seeking to take advantage of this relief on behalf of a client purchaser the recommendation is that relief code 28 is entered into box 9 of the SDLT form.

Brendan OBrien
Wednesday, 24 March 2010


Will the UK be downgraded by the rating agencies after the forthcoming budget?

View and vote on my poll at http://polls.linkedin.com/poll-results/82149/olpdx


The Lonely Business Owner

At times like these when the business is as lean as is possible and you are barely breaking even you are probably spending most of your time working in your business rather than on it. Dealing with day to day micro-operational issues means that the problems aren’t getting better you are the only person that can make those decisions.

Every time you look up is the situation is worsening?

Maybe it is so bad that you cannot see through the symptoms to the problems and as result not solution is possible. In circumstances like these the one thing that needs to be done is to get an objective opinion about the situation from an outsider.

There will undoubtedly be a time when taking formal insolvency advice is the only course of action and indeed that may also be a safe place to start. However, we are seeing many business owners only turning for help when the situation is irretrievable. The reality is that in most cases early action would have saved the business or created a better outcome. Turnaround professionals tend to see crisis situation with requirements for crisis management where the options are severely limited. It would be better for the client if they had approached the professional earlier thereby increasing the options. An Insolvency Practitioner might very well say that they cannot help because this is not a situation appropriate for formal insolvency procedures. In those circumstances, perhaps an outside management consultant may be able to help enabling a costs effective business retention solution with minimal impact on the business and its reputation.

If you would like to have an objective discussion, please contact me or my team on 01279 715333 or brendan.obrien@breezeandwyles.co.uk.