If you’re involved in agriculture, there are many different and constantly changing areas in agricultural law that could affect you, whether you’re a landowner, owner farmer, tenant, estate manager or employee.

Land registration

Says Alistair:

“It’s vital that any farmer or agricultural land owner registers their name on their land, including any property, fields, rivers and forests, to avoid any disputes arising out of land ownership and encroachment on the land.

“The registration is regulated by the Land Registration Act 2002. Your agricultural lawyer will ensure that the registration is completed correctly and complies with current legislation.”

Diversification

Says Alistair:

“Farmers today are exploring many different non-farming activities such as commercial and residential lettings, retailing of farm produce, leisure facilities and tourism in attempt to supplement their income. However, farmers wanting to diversify can find several major barriers in their way, such as easements or restrictions on title, obtaining planning permission, securing finance and tax and inheritance implications.

“A solicitor will be able to check the freehold title or tenancy agreement to confirm whether there any legal restrictions or obstacles to overcome with regard to changing land use, as well as considering and advising on all of the other aspects.”

Agricultural tenancy

Alistair comments:

“This is a particularly complicated area of agricultural law with several pieces of legislation covering this topic. For example, with regards to tenancy succession, knowing when the tenancy was granted becomes vital as to whether the Agricultural Holdings Act, known, as ‘the 1986 Act’, or the Agricultural Tenancies Act 1995 should be applied.

 “The 1986 Act applies in two situations: tenancies before 12^th July 1984 and tenancies between 12^th July 1984 and 31^st August 1995. Any tenancies after the latter date fall under the Agricultural Tenancies Act 1995 and your lawyer will ensure you know which applies to your situation.”

Employee rights

UK farmers rely on nearly 600,000 temporary workers to help them on their farms each year, and approximately half of those temporary workers employed in the UK agriculture industry are from other EU states.

Alistair says:

“Hefty fines can be given to farmers who employ someone who does not have permission to work in the UK, in addition to a criminal offence of knowingly employing a person who is subject to immigration control, which carries a maximum sentence of two years in prison.

“Penalties surrounding this legislation can cause farmers to have grave concerns about employing foreign workers, so it is best to consult a lawyer if you may have an issue.”

Inheriting the farm

On death inheritance tax is levied at 40% on that part of the value of the estate which exceeds £325,000. It is the market value of assets which is relevant when calculating Inheritance Tax and as agricultural land and buildings often fetch a premium price on the open market, many farming families who own any part of the land they farm could face a potential inheritance tax problem.

Alistair explains:

“There is a relief against inheritance tax known as Agricultural Property Relief (APR) but its availability is frequently misunderstood. It is potentially extremely valuable, particularly for those who qualify for 100% relief. However the current law is complicated so experienced legal advice should be regularly sought to ensure you are maximising your potential relief.”

Agricultural law is wide and varied, and all too easy to fall foul of. Tallents have been advising the people of Nottinghamshire and Lincolnshire on agricultural law for more than nine generations.

When buying your home, you’ll hear the word ‘conveyancing’ a lot, but what exactly is it?

Says Alistair:

“It’s worth knowing some of the key procedures that must occur before completion can take place. The main ones are as follows:

“Evidence of title/contract

The vendor’s solicitor will send your solicitor a copy of the deeds or a summary of their content. If your solicitor has any questions he will make enquiries before contract.  He will also carry out the necessary searches.

“Draft transfer/conveyance

The vendors’ solicitor will send your solicitor a draft transfer (for registered property) or conveyance (for unregistered property). This is the deed, which passes the vendors’ interest in the property to you.

“Mortgages

Your solicitor will write to your mortgage lender to ensure that the mortgage money is available in time for completion.

“Engrossment of transfer or conveyance

When both solicitors are satisfied with the terms of the deed it will be ‘engrossed’, i.e. a final version will be prepared for signature by both sides.

“Signing of final documents

You will be asked to sign the final documents and provide a banker’s draft (or, more often these days, a telegraphic transfer) for any further money required to fund completion over and above your mortgage advance.

“Final searches

Your solicitor will conduct a final Land Registry search in case the vendor has just been declared bankrupt (in which case the property would no longer be his to sell) and to ensure that no last minute charges have been registered against the property. These could affect the mortgage lender’s security.

Frances says:

“At Tallents we have dealt with many Charitable Trusts and have seen these Trusts struggle with funding over the last few years.

 “Many people do not realise that a charitable donation in your will is exempt from Inheritance Tax and as such should be considered as an integral part of anyone’s Inheritance Tax planning. After all, wouldn’t you rather help your favourite charity, rather than the taxman?”

The current level above which a couple would find their estate liable to Inheritance Tax (IHT) is £650,000 and £325,000 for a single person.

Frances continues:

“An estate left to family and friends above the IHT level is chargeable at a rate of 40% but many people just don’t realise that if they leave a gift to charity this would reduce the liability on their estate.”

David Ryan of East Midlands-based Independent Financial Consultants, Cockburn Lucas, comments:

“From 6^th April 2012 the government introduced new IHT legislation that could affect anyone planning to pass a proportion of their estate to charity. As already mentioned by Frances, gifts to charity are already exempt from IHT but the new rules mean that the rate of IHT on the rest of the estate can be reduced from 40 per cent to 36 per cent. So although the charity will receive the same amount, the non-charitable heirs should also be better off under the new rules.”

Frances says:

“We have seen an increase in the number of people who are reviewing their wills in light of the forthcoming changes and inserting charities into their wills as part of their IHT planning. 

 “On death the estate will be divided into different components for tax purposes – each of which needs to be looked at separately. Then within each component, any reliefs or exemptions – such as the available proportion of the nil rate band – will be deducted to ascertain the charitable element.”

Frances finishes:

“The new rules are complex and we always recommend taking professional advice. This is a complicated area of law to get right and the last thing you want to do is inadvertently leave the taxman in your will. Always choose a regulated, qualified and experienced legal professional to deal with your will writing requirements and ensure your final wishes will be carried out.”

For more information, visit our page on Wills and Inheritance Tax Planning, or call us on 01636 671881.

Alistair says:

“In simple terms, the NewBuy scheme is designed to enable both first-time buyers and people already on the housing ladder to buy new build homes or flats with just a 5% deposit. The remaining part of the mortgage will be funded by a 95% loan-to-value mortgage currently available from three high street lenders, with more lenders expected to offer 95% mortgages over the coming weeks.”

The NewBuy Guarantee is a mortgage indemnity scheme, which has the backing of three major high street banks, Barclays NatWest and Nationwide. It has been welcomed by house builders, both large and small, across the UK. Under NewBuy, the builder pays 3.5% of the sale price into a special account held by the lending bank for seven years. UK taxpayers will provide additional guarantees of 5.5%, but this money would only be called up on in the event of a major property crash.

The scheme is expected to help up to 100,000 buyers, who would otherwise be unable to buy, or move home, because of their small deposits. Additionally, the scheme is a welcome boost to the construction industry as it is set to support the creation of up to 50,000 new jobs.

The NewBuy scheme is open to any UK citizen and is offered under the following conditions:

- The scheme is limited to the first 100,000 homes

- It is for new build properties, both houses and flats, only

- It is applicable for homes up to the value of £500,000

- The home must be the owner’s main home and cannot be used for investment purposes

Alistair comments:

“Despite the current economic climate, we have still been kept busy by people wanting to sell, or move home, but the NewBuy scheme will help not only existing homeowners purchase a brand new home, but also help first-time buyers get onto the housing ladder. With the added benefit of job creation in the construction industry, this is the kind of kick-start initiative that our housing market and economy need to get back on track.”

The NewBuy scheme was launched on the same day as David Cameron confirmed the extension of the ‘right-to-buy’ discount up to £75,000 for social housing tenants.

Says Alistair:

“This re-boot of the right-to-buy scheme will help an estimated two million tenants in the UK to help them buy their existing home. Again, this is a welcome boost for the housing market and will help many people get their foot on the first rung of the housing ladder.

“If anyone is thinking of taking advantage of either of these schemes, then we recommend talking to your solicitor as soon as possible to ensure that the house purchase can proceed as smoothly as possible.”

Tallents has nearly 240 years of experience in offering home buying and selling advice for the people of Nottinghamshire and Lincolnshire.

Alistair says:

“Although a large majority of the Act is not yet in force and is not expected to be so until April 2012, anyone who owns rural land should be aware of how these three key areas of the Act might affect them: Assets of Community Value (ACVs), Neighbourhood Development Orders (NDOs) and Enforcements against concealed development.”

Assets of Community Value

Local bodies will be able to nominate buildings and land to be listed as ACVs, such as pubs, village shops and cricket pitches. Says Alistair:

“This means that if the ‘listed’ property is sold or leased, the local body will have a ‘right to bid’. Although this will not be a right to buy, a ‘listing’ could delay any sale, or lease, in the same way that a right of pre-emption does. Landowners should be prepared to deal with this new right and consider possible effects on future transactions.”

Neighbourhood Development Orders

Local communities will be given a real voice in deciding the look and feel of any development in their towns and, for the first time, they will be able to decide the types of development given automatic planning permission through NDOs.

Alistair comments:

“For landowners this means that parish councils and other approved local bodies will have considerable power when proposing future development. Planning will have to be in accordance with national and local strategic policies, be passed by an examiner, and by 50% of votes in a local referendum. Achieving a NDO will not be a straightforward process.”

Enforcements against concealed developments

There have been cases in the last couple of years where building developments have been ‘concealed’ in a barn and also behind hay bales. Constructed without planning permission, the buildings were then occupied for more than four years in the hope that a Certificate of Lawful Existing Use and Development (CLEUD) would then be issued.

Says Alistair:

“Without any intent to conceal, it is possible that large tracts of land may contain buildings which were built more than four years ago without planning permission, but for which a CLEUD hasn’t been obtained.

“The Act will give Local Authorities a one-year window, after they learn about the breach of planning, during which they may seek enforcement of the planning permissions. However, the Act may raise questions with buyers, tenants and lenders when a property is being marketed without appropriate CLEUDs.”

Alistair finishes:

“Although not yet law, the Localism Act 2011 may have wide-reaching implications for rural landowners. If you have any concerns about how the Act may affect you, then we recommend you speak to an experienced agricultural lawyer sooner rather than later.”

Alistair says:

“Setting up in business can be a very exciting time, especially when you’ve spotted a gap in the market, or an opportunity to make money, but many start-up businesses fail because of poor planning or lack of expert legal advice. Prevention is always better than cure, so getting legal advice sooner rather than later could prove to be the best business decision you’ll ever make.”

Alistair continues:

“As Government-funded business support, previously provided through groups like Business Link and EMDA, is gradually being withdrawn, it’s even more vital for new business owners to have access to relevant advice to get their businesses off to the best possible start.

“When we at Tallents work with new start-ups, we offer a wide range of business-related legal advice and have had experience of helping a new business owners tackle all the usual problems they might face.”

“There are key areas to seek advice on when setting up a business,” says Alistair. “These are: company structure, your business premises, finance, taxes, insurance, cash flow, goods and services, protecting your ideas, franchising, licences, employment law, health and safety and preparing for disagreements and problems.

“For example, there are many different types of company structure to choose from: should you trade under your own name, or through a company? If you’re setting up the business with partners you might need a partnership agreement or shareholders’ agreement to ensure everyone gets their fair share.

“Do you really understand all the fine details of your premises lease? Do you know when, or if, your landlord can increase the rent? Or what repairs each of you is liable for?

“When it comes to finance and taxes, it definitely pays to stay on the right side of the law. Your solicitor could negotiate with your bank on your behalf and advise you on the best time of year to start trading.

“When starting a business there are many, sometimes quite complex, areas to be considered but your solicitor will be able to guide and advise you.”

Alistair finishes:

“Too often businesses do not consult a solicitor until a crisis point has been reached. Clear and experienced legal advice at the outset could often have avoided, or at least prepared for, the situation now being faced. Don’t let that be your business.”

Tallents has nearly 240 years of experience in offering business-related legal advice for new start-ups.

Currently local authority assistance is means tested, and in England and Northern Ireland everybody receives some help towards the nursing care element of their care.  This is defined as care required to be carried out by a registered NHS nurse.

For those with assets over £23,250, accommodation and personal costs, such as help with washing, cooking and meals will fall on the individual or family members and can run into many thousands of pounds. In most cases the means test includes the value of any home – so a local authority can insist that your property is sold to meet the costs involved.

Frances comments:

“It’s no wonder when faced with the trauma of losing their family home, that many elderly people are willing to try any means available in an attempt to protect their most valued asset.

“We’ve recently seen a UK bank fined tens of millions of pounds for mis-selling financial products which were purported to pay for long term care costs, but it’s not just the banks that are potentially taking advantage of the uncertainty surrounding long term care funding. Scores of companies also market trusts that ‘claim’ to offer the ability to protect the value of the family home when nursing care is needed. But this is not a guaranteed way of avoiding having to sell the family home to pay for nursing home fees.”

Frances continues:

“Trusts set up for the specific purpose of avoiding long term care fees are likely to count as ‘deprivation of assets’ and any value transferred could be clawed back to pay for care charges.  This means some solutions blatantly advertised as protecting assets from the costs of long term care may be completely unable to meet their claims and we recommend everyone seeks expert legal and financial advice.”

The Dilnot Commission report makes a number of key recommendations:

• Capping the lifetime amount an individual has to pay for care at £35,000, after which they would become eligible for state help.
• The upper threshold of assets a person can keep to qualify for means tested benefits should be raised to £100,000.

David Ryan of Nottingham-based Independent Financial Consultants, Cockburn Lucas commented:

“Dilnot’s vision of a ‘shared responsibility’ model, if implemented in the future, would split the cost between the state and the individual. This would allow many more product providers to become involved and offer new ways to help meet future care costs. We continue to experience a rise in the number of our clients entering care or facing care costs whilst in their own home, and are able provide specialised independent advice in this area”.

However, since estimates suggest it would cost the Treasury up to £1.8 billion a year extra it is likely that the government will be in no hurry to implement the recommendations in the Dilnot Commission report in the current economic environment.

Frances finishes,

“At Tallents Solicitors we would be happy to help you review your affairs, both before and during care, and offer both our professional legal advice and financial advice via long-term-care-qualified Independent Financial Advisers.”

Alistair Millar, an agricultural lawyer at Tallents Solicitors in Southwell explains a complicated area of the Agricultural Holdings Act 1986 which can affect succession: commercial units of agricultural land.

He says:

“Also known as ‘the 1986 Act’, the Agricultural Holdings Act applies in two situations: tenancies before 12^th July 1984 and tenancies between 12^th July 1984 and 31^st August 1995. Any tenancies after the latter date fall under the Agricultural Tenancies Act 1995.

“One of the main tests for succession to a 1986 Act tenancy is that the applicant does not occupy another ‘commercial unit of agricultural land’.”

The legal definition of this is ‘a unit of agricultural land which is capable, when farmed under competent management, of producing a net annual income of an amount not less than the aggregate average earnings of two full-time male agricultural workers aged 20 or over.’

However, the recent case of Horton v Commissioners for Crown Lands has provided some pointers as to what needs to be considered by all tenant farmers wishing to ensure succession of their farms to the next generation.

Alistair comments:

“Mr Horton and his son farmed one farm unit in Horton Senior’s name, as a livestock and dairy unit, with another farm unit in Horton Junior’s name. Arable cropping and beef livestock were kept across both units and slurry from the dairy unit was applied across both parts of the farm.

“However, following the death of Horton Senior, this matter came to the Agricultural Lands Tribunal when Horton Junior claimed a succession tenancy to his father’s farm. 

“The Tribunal took the view that following 1984 guidance from the Ministry for Agriculture, Farms and Fisheries, DEFRA’s surveyor should assess the most suitable system of farming.  However, they also noted that the statute required assessment of a variety of options that a competent farmer would consider. This was the approach taken by the Crown Lands Commissioners’ surveyor.”

Alistair continues:

“It was eventually decided that, although the Hortons were farming competently in respect of the large combined unit, the ‘substantial differences’ which would occur if the dairy unit were no longer available, meant that a farmer farming Horton Junior’s unit alone could not be considered to be doing so competently under the present system, even if that system was modified. 

“As a result, other options had to be considered. A number of suggestions had been made by the Commissioners’ surveyor, each of which could yield the necessary return of a figure above the £40,849.64 (the aggregate average earnings of two full-time male agricultural workers) that had been agreed between the parties as the relevant figure in accordance with the 1986 Act.

 “The Tribunal eventually found that the unit let to Horton Junior was indeed a ‘commercial unit of agricultural land’ in accordance with all of the definitions in the 1986 Act and therefore he was disqualified from succeeding to the tenancy previously held by his late father.”

Alistair finishes:

“The 1986 Act is a complicated area of agricultural law and it is prudent to take steps now to ensure the smooth succession of your tenanted agricultural land. If you have any concerns about your 1986 Act tenancy, then we recommend you speak to an experienced agricultural lawyer.”

Says Andrew:

“Having trained as an ‘all issues’ mediator, it’s my job to help people resolve not only issues regarding children, but also any financial disputes, and reach a fair agreement for all. Mediators are impartial and not on anyone’s side, so we can work with both parties to find appropriate solutions without involving the courts.

“Mediation is a less acrimonious way to resolve disputes as both parties retain control over the process. Going to court can be both time-consuming and very expensive but mediation allows couples to work towards a fair agreement which suits both them and their children.”

Andrew qualified as a solicitor in 1991 and has worked as a Family, Criminal and Personal Injury lawyer, specialising in family law for 13 years.

As a member of the Law Society’s Children Panel Andrew is qualified to represent children in care proceedings and is not only a Resolution trained mediator, but also a Resolution Accredited Family Law Specialist. Resolution members are committed to the constructive resolution of family disputes with a non-confrontational approach to family problems.

Andrew continues:

“During mediation, I listen and try to understand all of the issues involved so I can help parents and other family members communicate effectively and resolve their conflicts to achieve a resolution which is best for all.”

Andrew’s workload covers the broad range of family proceedings, including separation and divorce, financial matters which arise from separation and divorce and all issues in respect of children, for example residence and contact proceedings.

Andrew also has a specialism in Public Law proceedings, which include the representation of parents and children in Applications by Social Service for Care and Supervision Orders, and subsequent adoption proceedings.

Andrew is also a Collaborative Family Lawyer and is trained to assist his clients in resolving all child and financial matters arising from a divorce or separation in a dignified and respectful way for the benefit of the whole family.

“At a very emotional time, I always work hard to help my clients reach an agreement that is fair for both sides, and any children who might be involved. If I can help my clients understand each other’s needs and communicate effectively then we can often find a quicker and cheaper solution to costly court proceedings.”

Utilising his years of experience and specialised skills in client representation, negotiation and problem-solving, Andrew works to shape a fair settlement for his clients. He also has expertise in dealing with the separation of cohabiting couples.

Recent research from Unbiased.co.uk reported that more than 29.5 million Britons are currently without a will and that 10% of people currently without a will believe their estate will go to the right people automatically. For those people who have taken the effort to protect their loved ones and write a will, Frances says:

“This year we have seen a significant rise in the number of ‘will writers’ advertising their fix-priced services to clients.

“However, the first annual report released this year from the legal ombudsman highlighted that 13% of the complaints they had received involved will writing.

“Tallents have been meeting the legal needs of clients across Nottinghamshire and Lincolnshire since 1774 and as a carefully regulated legal firm, this information concerns us greatly.”

In his report, Chief Ombudsman, Adam Sampson said:

“One service which crops up a lot is will writing. It is a service carried out often by will-writing firms who aren’t regulated. Because of this, customers are left with little means of redress when things go wrong.”

Frances continues:

“We at Tallents are very pleased that the government has been called upon to take urgent action to make sure consumers are not left confused and vulnerable by unregulated companies.”

Both the consumer organisation Which? and the Law Society have also backed the ombudsman’s claims and called for more protection for consumers.

Des Hudson, chief executive of the Law Society for England and Wales said:

“It is also damaging to consumers because the unregulated providers are not insured, do not provide a compensation fund and are not covered by the legal ombudsman’s scheme for consumer redress.”

Richard Lloyd, Which? Executive Director, said:

“We want the government and regulators to wake up to the current lack of clarity and to provide a clear and straightforward route of redress for consumers.”

In July this year the Legal Service Board announced a statutory investigation into the will-writing market after they estimated 180,000 wills are written each year by unregulated firms. The Chair of the Legal Services Consumer Panel, Dr Dianne Hayter, said a will could have huge personal and financial consequences for families and proposed that will-writing should be made a reserved legal activity.

Frances comments:

“Recently we have heard some horror stories about people who have been approached by will-writing companies who employ high-pressure selling techniques, offer to write wills for extremely low or fixed-prices, who recommend themselves to be appointed as executors or who sell other services without full-advice, such as transferring home ownership to avoid care fees.”

Frances finishes,

“You should always choose a professional to deal with your legal requirements. At Tallents, our solicitors and legal executives are regulated, have relevant qualifications, undertake continual professional development and training, and are fully insured.

“In addition, they will always take the time to guide clients through the will writing process and explore every option before making sure their final wishes will be carried out on their death. For peace of mind we always recommend using a regulated professional to write your will.”

Sources:

Unbiased.co.uk

Legal Ombudsman – 1^st annual report

Legal Services Consumer Panel – Regulating will-writing

The Guardian