Gaps Flashcards
Who has the benefit of a contract signed by a director in their own name, on behalf of a company that is not yet incorporated
The director only
What type of tax is payable in an ordinary trading partnership when a capital asset is sold for a profit and realises a chargeable gain
Capital gains tax is payable by the partners is shares according to their own agreement as to how to share profits
Can a trading loss be set off against a chargeable capital gain sheets the gain occurred within the 12 month period before the accounting period in which the loss was incurred
Yes. A trading loss doesn’t have to be set against trading gains and capital loss against capital gains. They can cross over so a trading loss can be set against capital gains
When does the consumer protection act 1987 apply
When an item is defective
What does the consumer protection act 1987 allow
allows consumers to claim compensation if the defective product has caused personal injury, damage to property or death
Are buildings covered by the consumer protection act 1987
No but building materials are so might have to bring a claim further up the supply chain
How much must the damage property be worth to bring a claim under the consumer protection act 1987
Cannot bring a claim if the damage property is worth below £275
Can a claim be brought under the consumer protection act if a product is intended for business use but is used for personal use
No
Who can claim under the consumer protection act 1987
Anyone who suffered damage can claim. Not only the consumer or purchaser
How long does a claimant have to bring a claim under the consumer protection act 1987
3 years from the date of injury
No claim can be submitted more than 10 years since the product was last sold
What does net of VAT mean
Excluding VAT
What does gross of VAT mean
Including VAT
What can the solicitor charge the client for when the court has awarded their costs to be paid by the other party
Solicitor can charge the client for all fees and then the client can seek to recover them from the opposition
Are EU directives directly applicable
No because the state must implement national legislation before the deadline to give them effect.
Are EU treaties directly applicable
Yes
Are EU regulations directly applicable
Yes
Meaning of directly applicable
No further legislation is needed to implement them
What costs are recoverable in the small claims track
Mostly parties pay their own costs
Costs recoverable are;
Fixed costs involved in issuing the claim
Loss of earning and travel costs for party or witness attending hearing
Experts fees
Court fees
Would only be ordered to pay other sides costs if you behaved unreasonably
What costs are recoverable in the fast track
Fixed costs
Court has limited powers to award amounts other than these
Judge will summarily assess the costs of the claim at the end of the trial
What costs are recoverable in the multi track
Reasonable and proportionate costs
Can the solicitor refer the client to an ATP if the ATP is related to the solicitor
Yes if the client is informed of this
Can a solicitor provide advice on financial matters ( specific investments)
Generic advice can be given by a solicitor not authorised by the FCA but specific advice cannot
What if the Alcock criteria is not filled for bystanders
Then there is no duty of care
Is part payment of a debt a practical benefit / operate as consideration
No so the remainder of the debt can still be enforced
What is an authorised guarantee agreement
Places an obligation on an outgoing tenant to guarantee the performance by the new tenant (assignee) of the tenant covenants in the lease
What if there is an authorised guarantee agreement and the new tenant (assignee) breaches covenant in lease or fails to pay rent or repair obs
The landlord can purpose the outgoing tenant under the terms of the authorised guarantee agreement
Landlord can insist the old tenant takes on a new lease on the same terms of the existing lease if the new tenant defaults and the existing lease is disclaimed
How long does an authorised guarantee agreement last
Until the assignee (new tenant) has validly disposed of their internet in the lease or the terms of the lease come to an end ( whichever is first)
Can a tenant insert a time limit into an authorised guarantee agreement
Yes if their negotiating position is strong enough
What does part 2 of the landlord and tenant act 1954 provide regarding security of tenure
At the end of a lease, a business tenant has a right to remain in occupation of the premises and to a new lease of the premises on substantially the same terms. The tenancy doesn’t automatically terminate at the end but continues under the Act on the same terms as the expired lease
If no action is taken by either land lord or tenant at the end of the tenancy what happens to a business tenant under landlord and tenant act 1954
The tenant will hold over on exactly the same terms
Can a landlord or a tenant apply to the court for a new lease under landlord and tenant act 1957
(Either where they agree to it but cannot agree on terms or where the landlord refuses to give a new lease)
Yes either party can. Must apply for essentially the same terms as the original lease with the exception of rent
On what grounds can a landlord base an argument to avoid granting a tenant a new request for lease
Tenants disrepair of the premises
The tenants persistent delays in paying rent
The tenants other breaches of the leave
The landlords offer to the tenant of alternative accommodation
Complex subletting
The landlords intention to demolish, reconstruct or carry out substantial construction at the premises Or
The landlord intending to occupy the premises himself
How long does the buyer have to register the new freehold at the land registry
Registration must take place 30 days of the date of the result of the priority search
Is breaking bail conditions a crime
No
What happens if you break pre-charge bail conditions
Arrested. Then released on bail again with same conditions or charge you with an offence and then bail you or hold you over until you can go to court
What happens if you are arrested for breaching post-charge bail
Taken to court in custody and could also be held on remand
Is it a crime to fail to turn up on the date given on bail sheet (court or station)
Yeah it is a crime regardless of whether it is the court or the station
Is evidence that breaches PACE admissible
The court may exclude it if it would have an adverse effect on the fairness of the proceedings but the court is not obliged to exclude it and the evidence doesn’t need to be recollected or rectified.
Who does a s27 enquiry or notice protect a trustee against
Protects trustee against unknown Beneficiaries and new creditors but does NOT protect against known Bs that merely cannot be located
How can a trustee protect themselves against claims from known Bs that cannot be located
Insurance, indemnity or Benjamin order
Not s27- that is only unknown Bs and new creditors
When can a IHT discount be given to the beneficiary of shared property
When it is held as tenants in common
How much IHT discount can be given when inheriting shared property held as tenants in common
50/50 shares and survivor is in occupation - reduce value of deceased share by 15% when calculating IHT
50/50 shares and survivor is not In occupation reduce by 10%
If deceased share is less than 50% then reduction is greater and if the share is greater the reduction is less
Does IHT apply to transfers between spouses and CP
No
Are admissions to offences admissible at trial when the admission is made outside the court or station? To a friend or stranger? Or when drunk?
Yes these are exceptions to the criminal law rule against hearsay
Can a solicitor accept instructions via a third party
Yes if the solicitor is satisfied that the third party has the authority to give instructions and there is no conflict of interest or risk of conflict
If the landlord taxes the building, can the tenant recover the tax if they only make exempt supplies in the court of their business
No
Can you be guilty of burglary even if you use a key
Yes if you have had your permission revoked or don’t have permission to enter at that time or for that reason. You can be a trespasser even if you have a key
What information is found on the property register (as opposed to the proprietorship and charges reg)
Brief property description
Reference to title plan
Estate held (freehold or leasehold)
Easements or covenants which exists for the benefit of the property (eg right of way)
What information is found in the proprietorship
Class of title
Name and address for proprietor
Price paid
Any limitations on the power to deal with the property ( eg mortgage)
What information is found on the charges register
Any burdens affecting the property (eg restrictive covenants, positive covenants, easements and mortgages)
Landlords cannot withhold consent for assignment without reasonable grounds. Is competition by the assignee with the landlords business a reasonable ground for withholding consent
Yes this would be a reasonable ground to withhold consent
Is the test for recklessness subjective or objective
Subjective. It is not about what the reasonable person would foresee. It is about what D foresaw
Can the landlord withhold consent unreasonably without giving reasons if the contract contains an absolute prohibition on alterations
Yes
Can a solicitor transfer money due between client accounts without sending it via the client personally
Yes
What is a contingent interest
An interest that does not take effect until a condition has been met
What is a vested interest
An immediate interest in the property. An interest that has taken effect (eg the condition has been met)
No conditions need to be met to receive the legacy
Take over exemption - when does it apply
When the transaction involves 50% or more of the voting shares of the company
Who can limit their professional indemnity insurance below the £2m (or £3m for ABS) minimum requirements
Freelance solicitors
Minimum professional indemnity insurance cover required
£2m or £3m for ABS
Is ABH an indictable offence
Yes
What is a consolidating statute
It re-enacts law previously contained in several different statutes and there is a rebuttable presumption that such a statute does not materially alter the previous law
What is a clarifying statute
No such thing. This does not exist
What is a codifying statute
This brings together that previously contained in different pieces of legislation and in common law decisions as well as modifying some aspects of the latter
Can a job advert be written to attract applications from under represented groups or disadvantaged groups
Yes, the positive action regulations allow employers when choosing between two equally qualified candidates to select the candidate from the under represented or disadvantaged group
Is it lawful to state which groups you do not want to receive applications from when advertising a job vacancy
No this would be unlawful discrimination.
Is it lawful to include quotas in the advertisement and recruitment of under represented or disadvantaged groups
No this would be unlawful
Is it compulsory to take positive action by advertising and recruiting under represented and disadvantaged groups
Not compulsory, it is voluntary to take positive action
Can the police disperse protesters from private land when they do not have the land owners permission to be there
Only if a crime is being committed or there is a breach of the peace
Can a protest be dispersed due to it disrupting businesses
No, only when there is a crime being committed or a breach of the peace
What is a public assembly
A gathering that Must take place in a public place
What is a trespassory assembly
Result in serious disruption to life of the community or significant damage to the land or building or monument which is of historical, archeological or scientific importance. In addition the local authority would need to make a banning order
How much must a case be worth for there to be the choice between starting it in the county or high court
Worth over £100,000 the claimant can chose between the high court or county court
What is the doctrine of ademption
A specific gift is said to be adeemed (ie fail) if the testator no longer owns the subject-matter of the gift (ie the property given by the gift) at the date of their death. In other words, the property has ceased: • to be part of their estate.
Eligibility criteria to be a juror
Anyone on the electoral register aged 18-75 who has been resident in the U.K. for at least 5 years since aged 13
When a bill is referred for royal assent does the monarch have any choice to refuse
Yes three choices:
Give assent
Refuse, vetoing the bill
Reserve the decision for a later date
When would a land registry search against the title of a property be carried out (OS1)
Pre completion stage
In whose name should the application to the land registry be made to search the title of a property (OS1)
If a mortgage is used then the name of the lander to confer priority on both lender and buyers
If no mortgage then the name of the buyer
Can you carry out a bankruptcy search on a company
No only on an individual
When would an application for land charges search against sellers name be carried out
Only for an unregistered title transaction
Why would a solicitor carry out a company search on a company client purchasing a freehold
To check the solvency of the company and provide this to the mortgage lender (even when the lender is represented separately)
