IGA News

Be Aware - June 2017

Be Aware - June 2017

31 May 2017

Commercial Leases: Security of Tenure

“The lease on our commercial premises is coming to its end and I am afraid that I will not be able to get another one, what can I do?”

The Landlord and Tenant Act 1954 governs the rights and obligations of landlords and tenants of premises which are occupied for business purposes. Where applicable the Act guarantees that the tenants have the right to:

  1. Stay in the premises at the end of their tenancy; and
  2. To also apply for a new lease to be granted.

As such, it is very likely that you can not only stay in the premises, but also apply for another tenancy should you wish. The landlord can only object to a new lease for very limited reasons, including:

  1. Where you have a history of not complying with the lease obligations, such as failing to repair the premises and/ or non-payment of rent, or;
  2. Where the landlord provides alternative suitable premises
  3. Where premises have been split up by subletting into a number of units and the whole premises would command a higher rent if let together under one lease.
  4. Where the landlord intends to demolish and reconstruct the premises or
  5. Where the landlord requires the property back in order to occupy it themselves, or for development purposes,

In most cases, lease renewals are relatively straight forward and conducted against the background of these statutory rights without any need to apply to the courts.

Where a landlord does object to the renewal, you may be entitled to compensation as a result. You may even be able to challenge the refusal through the courts.

Where you wish to apply for a new lease, or simply wish to challenge a refusal, there are strict deadlines that need to be adhered to. Also, please note that the Act can be excluded if it is done correctly and should you find yourself in this situation, it is very important that you seek professional advice at an early opportunity. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance.

Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motoring Offences PCN’s and Parking fines etc….

As a motoring business if you lend out courtesy cars there will be times when those cars incur fines or parking charges, Penalty Charge Notices (PCN’s) or even criminal motoring offences such as speeding. It is important that members are familiar with issues raised by each of the above, and the different duties that are required when responding to each one. The information below is intended as a guide to the issues surrounding each area. It does not replace legal advice.

Criminal Motoring Offences

This is the most serious possible situation. There are a number of possible offences that can be committed in your vehicle. The most likely offences that a garage as the registered keeper will encounter are camera enforced offences such as speeding offences, or failing to stop at a red-light. In these instances, as the registered keeper you should receive a ‘Notice of Intended Prosecution’ or NIP, within 14 days of the offence. In this case, you have a duty to identify the driver of the vehicle and return the NIP within 28 days even if you do not know who was driving. Failure to return the NIP, or a failure to identify the driver are separate offences which can lead to a fixed penalty or a current maximum sentence of £1000 and 6 points.

In the event of receiving notice of a criminal offence, do not ignore: contact the RMI legal advice line immediately on 0845 8399205

Council Enforced Offences

The Road Traffic Act 1991 (c. 40) provided for the decriminalisation of parking-related contraventions. This was updated by the Traffic Management Act 2004 and subsequent regulations. In short, councils have taken the place of the police for a number of minor motoring offences relating to traffic management.

Garages should be very vigilant as a number of private landlords produce notices deliberately similar to those produced by local councils in order to obtain payment. Any council enforced PCN should have clear details on how to appeal both to the council concerned as well as to the independent tribunals PATAS and NPAS. If this is not clearly stated then you have likely received a demand for payment from a private landlord.

When the vehicle is a council enforced offence, in the majority of cases at the time of any ‘offence’ a Penalty Charge Notice or PCN will be attached to the vehicle (there are some cases enforceable by camera). If payment is not made within 28 days the council concerned will have between 28 days and 6 months to serve a Notice to Owner (NTO). This is to allow the owner to make representations regarding the PCN to the council concerned. This is important as it is the owner who is liable to pay any PCN not the driver. The owner can make any representations to the council regarding the PCN as to whether it was validly issued. However, as you were not the driver at the time your evidence will be severely limited. The owner can only avoid liability if

  1. the PCN was incurred by a person who was in control of the vehicle without the consent of the owner;
  2. the vehicle is hired under a vehicle hire agreement and the agreement contains a statement signed by the hirer acknowledging their liability for an PCN issued during their hire period

These are very limited situations and depend on the agreements in place when a courtesy car is provided. It would therefore be beneficial for garage to review the agreements in place when providing a courtesy car to ensure that the driver has accepted liability for PCN’s. The RMI legal advice line can assist on 0845 8399205 with further advice.

Do not ignore a PCN. When a PCN is received, it should therefore be assumed that you will be liable unless proven otherwise. If you should be required to settle any PCN it is likely that this amount can be recovered from the driver of the vehicle.

In the event of receiving a PCN

  1. Make sure that this is a council enforced PCN, many private car parks use formats deliberately similar in order to obtain payment
  2. Review the contents of any hire/courtesy car agreement to see if the driver has accepted liability for the PCN
  3. Contact the driver and investigate the facts of the case
  4. Contact the RMI legal advice line for legal advice as required on 0845 8399205
  5. Either admit the PCN or challenge informally with the council and then through either London Tribunals or the Traffic Penalty tribunal as appropriate

Private car parks

These are likely to be the most common type of fines received. Generally parking on private land is governed by contract law principles. Provided there are clear terms and conditions displayed in the car park upon entry a driver agrees to be bound by these by parking and leaving their car there. You should note from the outset that such tickets are very different from those issued by local authorities. Parking tickets on private land cannot lead in any way to any criminal proceedings and they are not a ‘ticket’ as such but a notice saying that they intend to take you to the civil court for trespass, in effect, breach of contract.

A parking operator has no legal right to recover a parking fine without first taking court action against you for breach of contract. What is also important here is that it is the driver not the owner of the vehicle that agrees to park on the property and so any legal liability to argue the case or settle any amount lies with the driver. However, if you do not provide the drivers details when requested where the driver cannot be identified that the registered keeper is liable for any such fines.

In the event of receiving notice of a fine from a private car park

  1. Contact the private land owner informing them that whilst you are the registered keep you were not the driver at the time.
  2. Provide the driver’s details immediately, and
  3. Pass details of the fine to the driver.

Pregnancy related time off

“I have a lady who works on reception who is pregnant. She keeps telling me she needs to go to appointments and even that I have to pay her. I can understand if it was just for the pregnancy scan but she appears to have had lots of appointments for different medical pregnancy related reasons and because of her position as a receptionist the disruption is too much. What can I do?”

Pregnant women have a statutory right to paid time off for ante-natal appointments during pregnancy. Ante-natal appointments do not just cover the traditional 12 and 20 week scans and on average there is usually between around 7 and 10 and sometimes more if for medical reasons that is necessary.

The law says that women are entitled to reasonable paid time off for ante-natal care made on the advice of a registered medical practitioner. Ante-natal care can include anything from scans to relaxation and parent craft classes. It is generally okay for the employer to ask for evidence if needed, but to treat a woman less favourably for going to ante-natal classes is discriminatory and can land the employer in an Employment Tribunal. Unlike with some other areas of employment law there is no right for the employer to postpone on business grounds.

Note also that fathers, partners, and civil partners are also entitled to unpaid time off (unlike a woman who must be paid) to attend 2 ante-natal appointments, albeit the law is stricter here and time is capped at 6 ½ hours for each appointment.

In the above scenario, therefore the employer would be wise to simply accommodate the request. The law in effect steps in here to create protection for women for policy reasons and a degree of disruption is somewhat inevitable. Such disruption is, of course, likely to be relatively short term.

Conclusions

This advice is general in nature and it will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 0845 305 4230 at any stage for advice and assistance as appropriate.