Last updateTue, 24 Feb 2015 5pm

Farrer & Co

Farrer & Co

Barbara Webb considers the increasing inclusion of non-standard provisions in institutional leases, reflecting corporate policies. How should the parties to the lease respond?

The institutional full repairing and insuring (FRI) lease is comprised of a more or less standard set of clauses. A feature of the FRI lease, and the investment market that it underpins, is a reluctance on the part of landlords to accept substantive alterations from the norm. Deviations from this rule generally arise only where there is a need to reflect either a particular position on the ground, eg a right is required to use a shared car park, or a commercial term agreed between the parties, eg a right of first refusal prior to assignment.

Anthony Turner and Adam Carvalho give the lowdown on the sale of corporate assets by trustees

It is not unusual for trustees to hold shares in private companies whose activities may range from a single purpose vehicle owning real property to a multi-national trading business. It follows that there will be times when trustees will consider a sale; there are any number of reasons for this but commonplace reasons are to realise value from an investment, to allow the trust to make substantial distributions or to diversify or otherwise de-risk trust assets.

Caroline Holley examines dependence, independence and variation in the context of joint lives maintenance orders

The high-profile case of W v W [2015], which many saw as the first real movement of the pendulum swinging away from the ‘meal ticket for life’ of joint lives spousal maintenance orders, has seemingly led to a surge in applications by paying spouses to vary or terminate such orders. As readers will remember, in W v W, Pitchford LJ dismissed a former wife’s application for permission to appeal against an order substantially reducing her maintenance. He upheld the view of the judge in the lower court that the former wife should exploit her earning capacity and contribute to her own financial needs.

Knowledge of environmental, social and governance (ESG) is in increasing demand from clients. Barbara Webb gives the lowdown

In a world of acronyms, measuring the sustainability and ethical impact of an investment is no different and ‘environmental, social and governance’ (ESG) has become the ‘go-to’ phrase in the context of property investments. This is not a new concept, with property investors having reported on such matters for some years now.

Andrew Wade reviews the current position on signage and establishing prescriptive rights

In the 2016 case of Winterburn v Bennett, Richards LJ commented that:

Deborah Pennington and James Bromley give the lowdown on tax changes for private clients

UK residential property is a valuable asset, properties in London particularly so. Historically, the advantageous tax treatment available to both non-residents and non-domiciled clients holding UK residential property has only increased the attractiveness of this asset class for clients, whether it is for personal occupation or as part of a rental business.

Adam Carvalho and Alice Kendle explore the slippery and amphibious doctrine of donatio mortis causa

The case of King v The Chiltern Dog Rescue [2015] (King) has clarified – and restricted – the law relating to ‘deathbed gifts’, or donatio mortis causa (DMC). We set out below a summary of the law regarding DMCs, the background to King, the judgment and some reflections on the future of the doctrine.

Adam Carvalho and Lizzy Sainsbury set out two cases where the courts had to consider whether a refusal to mediate was reasonable

Lord Justice Mummery opened his judgment in Hawes v Burgess [2013] with a stark reminder that litigation is not always the best solution to trust and probate disputes:

In the second part of his article, Christopher Jessel continues to consider injury claims which occurred on recreational land and the issues they create

Particular issues arise in relation to open countryside and rights of access over common land.

In the first of a two part article Christopher Jessel analyses the difficult issues which arise when pursuing injury claims which occurred on recreational land

If someone goes for a walk and suffers an injury as a result of the condition of the land, for instance by stumbling into a pothole, falling over a cliff or tangling with barbed wire, can they claim compensation from the owner or occupier? Areas used for recreation include public footpaths and bridleways, open country under the National Parks and Access to the Countryside Act 1949 (the 1949 Act) and the Countryside and Rights of Way Act 2000 (the CROW Act), municipal parks and country parks, town and village greens, the foreshore, and private parks and gardens opened to the public.

Sam Macdonald and Elizabeth Jones examine the updated Charity Commission guidance on public benefit

New public benefit guidance was published by the Charity Commission in September. This guidance replaces the original guidance that was judicially reviewed by the Independent Schools Council (ISC) in 2011, the outcome of which saw the Upper Tribunal (Tax and Chancery Chamber) requiring the Charity Commission to withdraw parts of the original guidance that it determined to be incorrect.

Paul Ridout examines the consequences of the Upper Tribunal’s determination on the Attorney General’s Reference on benevolent funds and certain other poverty charities

One single evening lecture, which formed part of my law studies, addressed the question of charitable trusts, ranging from the catechism of charitable purposes in the Preamble to the Charitable Uses Act 1601 through to the Charities Act 1993, most of which had recently come into force. Within that one all too brief lecture, we learnt about the concept of public benefit and about the principle that any organisation wishing to have charitable status must have purposes that are for the benefit of a sufficient section of the public. We learnt that, in order for class of beneficiaries to have the necessary public character, it must not be defined by reference to a private nexus unless the purpose of the charity is the relief of poverty. We were given the example of the trust for the education of children of employees of British American Tobacco, which was held not to be charitable, and this was contrasted with the case of a gift for the benefit of poor employees of a single company, which has stood as good authority for the proposition that charities for the relief of poverty could have a beneficial class defined by reference to a personal nexus such as family relationship or employment.

Sam Macdonald and Elizabeth Jones review the decision in the ISC’s judicial review of Charity Commission guidance on public benefit

On 13 October 2011, the Upper Tribunal (Tax and Chancery Chamber) released its decision in the Independent Schools Council’s (ISC) judicial review of the Charity Commission’s (the Commission) guidance on public benefit, and the related Reference by the Attorney General. The decision – The Independent Schools Council v the Charity Commission; HM Attorney General v the Charity Commission for England and Wales & anor [2012] – has been described as the most important judicial statement in charity law for 50 years. While that might be hyperbole, there is no doubt that the decision is highly significant. It provides a thorough examination of the pre-2006 case law dealing with public benefit and fee-charging. It analyses the effects of the Charity Act 2006 (the 2006 Act) upon these issues, and in particular the effects of the so-called removal of the presumption of public benefit. And it provides confirmation on various key principles that were in issue in the litigation.

Annmarie Gosling and Alvaro Iraizoz Reclusa consider international aspects of pre-marriage financial planning

Pre-nuptial agreements are a topic on which one might think there is little left to be said. As we all know, pre-nuptial agreements have been a particularly hot topic since the Supreme Court’s judgment in Radmacher v Granatino [2010] that parties will be held to the terms of a pre-nuptial agreement if those terms are deemed to be ‘fair’ by the court.

White v Williams shows the complications that can arise without specific charity law advice, as Paul Ridout relates

March saw the publication of the latest chapter in the High Court proceedings relating to the Tabernacle Church in Lewisham, known to its congregation as ‘the Tab’. Combined with Mr Justice Briggs’ previous ruling in 2010, this judgment provides a variety of useful insights into charity law, ranging from the question of the court’s jurisdiction under the cy-près doctrine in light of the new provisions in the Charities Act 2006, through the thorny question of a charity trustee’s right to be indemnified out of a charity’s assets, to the factors that the court will take into account when deciding whether to make a charging order.

Hannah Clark analyses the limited circumstances in which the courts will reopen a final financial order

As family lawyers, we are well accustomed to the touch of the family courts’ hand on divorcing couples’ shoulders. However, the case law on Barder events (per Barder v Barder (Calouri intervening) [1987]) casts the judiciary in a less protective light. Judges have made it clear that supervening circumstances have to go beyond our clients’ wildest dreams of tragedy (or, presumably, serendipity) in order to compel the court to revisit a final order it feels has been ‘put to bed’.

Singellos v Singellos marks an important extension of the Parker v Feldgate principle into lifetime gifts, explains Susi Dunn

In the summer of 2010, the High Court was asked to consider the validity of both a will and lifetime gifts made by the deceased Mrs Smaragda Singellos during the final weeks of her terminal illness. In particular, the court was required to decide whether the lifetime gifts were valid even though Mrs Singellos had lost capacity by the time she signed the final documents implementing those gifts.