Specialist guidance on coronavirus for individuals

Supporting you through the coronavirus pandemic (COVID-19) – your questions answered

To help us address your concerns and provide information that is relevant to you, please tell us which areas you would like information about by completing the form or find the full information below.

Please note, all information should be taken as general guidance. It is not intended to be a definitive statement of the law nor relied on as advice. All information is correct at the time of publication.

Coronavirus Q&A

Making or amending a Will

Are you able to make a new Will for me or to alter an existing Will?

Absolutely. While we are not holding face-to-face meetings, as we used to, we can deal with Will making in a different way. Instructions can be taken via WhatsApp or Skype video meetings. If this is not available to you, they can be emailed to us and we will then follow this up with a phone call. We have a questionnaire that we can email to you so that you can make a note of all the information we will need and this should help you when we discuss your Will.

Where it is not possible to take your instructions in one of the ways described above then, where necessary, we can hold face to face meetings. In these circumstances and with your agreement, the meeting would take place with a member of our team who is not at high risk themselves nor a risk to you.

Draft Wills can be emailed to you for approval. If preferred, we can deal with matters for you by post, but this may unduly delay matters at this time.

Updated 17 July 2020

Will there be a delay in dealing with my instructions?

We are a large team and we are fully up and running, as are our support staff. If there were to be a delay, we would inform you at the outset in accordance with our professional obligations. At present, this is not an issue.

Updated 17 July 2020

What about signing the Will?

Electronic signatures are not yet accepted for Wills.

The law provides that a Will must be signed in the presence of two people who are present to see each other sign. Someone who benefits under the Will, or who is married to someone who benefits, cannot be a witness so this is likely to exclude other members of your household.

The current social distancing rules cause some difficulty with these requirements. Relying on old case law we have been advising clients to sign Wills with their witnesses viewing from a safe distance through a window. However, the Will does need to be signed by the person making it, and by both witnesses, so care must be taken with this in case the document is contaminated with the coronavirus.

On 25 July the Government announced that they are releasing legislation in September that will enable Wills to be signed and witnessed via video link. This has risks attached to it and so should only be used when no other method of signing and witnessing the Will is possible. Please contact us for further information.

Updated 13 August 2020

I have an elderly relative in a care home that needs to make a Will. Is this possible?

For a Will to be valid the person making it must have the necessary mental capacity, and know and approve of the Will’s contents. As the Will drafters we must be happy that this is the case. We may be able to assess your relative’s mental capacity through a video call such as Skype or WhatsApp with the elderly person. If we have any doubts, we will not be able to proceed without a medical professional’s report as to capacity. Inevitably, this may be difficult to obtain currently.

Witnessing a Will in a care setting can be difficult as staff are often not permitted to witness Wills. However, other residents can witness a Will if they are capable and social distancing is maintained.

Please call us to discuss your relative’s circumstances, or you can complete the online contact form below and we will get back to you.

Updated 17 July 2020

I have a Will and it only needs a small alteration. Can I do this myself?

We would advise against this. It may appear to be a small change, but it may have knock on effects and ramifications that you’ve not considered. It is always preferable to obtain the advice of a specialist professional.

Updated 17 July 2020

Read more about our Wills services

Carol Cummins - Private Client Consultant - Clarke Willmott BristolFor more information, please contact
Carol Cummins
Consultant
0345 209 1275
carol.cummins@clarkewillmott.com

Managing the estate of a deceased person

My relative has just died from COVID-19. What do I need to do first?

Our sincere sympathies go out to anyone who has lost loved ones during this pandemic. There is no necessity to take most actions immediately, but the law requires you to register the death within five days. Special rules have been brought in during the pandemic that mean that all necessary supporting documentation to register the death can be provided electronically. Funeral directors can also register deaths during the pandemic if family are unable to do so.

Please contact us and we will provide you with guidance about what to do immediately following a death.

Updated 17 July 2020

Will you be providing estate administration services?

Absolutely. While we are not holding face-to-face meetings, instructions can be taken via WhatsApp or Skype. If this is not available to you, we can talk initially over the phone. We have a questionnaire that we can email to you so that you can make provide us with all necessary information. We will need the original death certificate, which can be posted to us.

Updated 17 July 2020

How will the administration of an estate be affected by the coronavirus?

We have clients nationwide and are therefore familiar with dealing with estate administration remotely. We are a large team and so hope to be able to cover for other team members if staff become ill. In the initial asset valuation stages of an estate, the most problematic area may be valuation of a property. We expect, however, that estimated valuations could be obtained from agents based on photos and descriptions. We would hope that in the circumstances, if necessary, HMRC would accept initial estimated valuations providing a formal valuation is submitted as soon as this becomes possible. We therefore hope that it will be business as usual as much as is possible so that we can provide you with assistance at a very difficult time.

Updated 17 July 2020

Read more about our estate administration services

Emma Pope photo, Partner Private CapitalFor more information, please contact
Emma Pope
Partner
0345 209 1823
emma.pope@clarkewillmott.com

Using and setting up a Lasting Power of Attorney

Will LPAs be of help in the coronavirus pandemic?

If you have a Finance LPA and if you are incapacitated through the illness, your attorney will be able to manage your finances. A Health LPA will enable your attorney to make health care decisions on your behalf if you cannot do so. The LPA must be registered with the Office for the Public Guardian before it can be used. This is usually done immediately after creation as it can take several weeks to be registered.

Updated 17 July 2020

I do not have an LPA at present. Can you help me make one?

Absolutely. While we are not holding face-to-face meetings as we used to, we can take your instructions via WhatsApp or Skype. If this is not available to you, your instructions can be emailed to us and we will then follow this up with a phone call. We have a questionnaire that we can email to you so that you can make a note of all the information we will need. This should help you when we discuss your LPA.

We do have to be sure that you have the necessary mental capacity to make an LPA. This means you will have to obtain a “certificate provider” who can certify that you understand what you are doing when making an LPA, and that you are under no pressure to do so. We can provide a leaflet about the certificate provider’s qualifications and role.

We can carry out this role if you wish.

Where it is not possible to take your instructions in one of the ways described above then, where necessary, we can hold face to face meetings. In these circumstances and with your agreement, the meeting would take place with a member of our team who is not at high risk themselves nor a risk to you.

Updated 17 July 2020

Can I make an LPA online?

Yes, you can do this here. If you are thinking about making an LPA online, we suggest that you speak to us first. Everyone’s circumstances are different and professional guidance will help you avoid you making an LPA that is not as effective as it should be or including instructions that are invalid. We can also help you make sensible, informed choices about your attorneys. It is vital that you choose the right people.

Updated 17 July 2020

Can an LPA be used when it’s completed?

An LPA has to be registered with the Office of the Public Guardian before it can be used and this normally takes some time. We understand that it is currently being investigated with the relevant authorities whether, in the present circumstances, this process can be speeded up. Check back here regularly for more news on this.

Updated 17 July 2020

My relative has already made an LPA which now needs to be used. What should I do?

Please phone us so that we can discuss this. We have a leaflet on activating your relative’s LPA that we can send you. You will need certified copies of the LPA to register with financial institutions. We can provide these, but we will need to see the original LPA. There is a small charge for providing certified copies.

Updated 17 July 2020

Read more about our Lasting Power of Attorney services

Carol Cummins - Private Client Consultant - Clarke Willmott BristolFor more information, please contact
Carol Cummins
Partner
0345 209 1275
carol.cummins@clarkewillmott.com

Employment rights and income if you have an employer

Lay off

What is lay-off? Is it different to suspension?

Lay-off is when an employer takes an employee off work and off pay for at least one working day. It is used as a response to lack of work, and as an alternative to making redundancies.

There is a statutory pay scheme for lay-off and short-time working, but a lay-off clause in the employment contract is required in order to implement this.

Correct as at 27 May 2020

What is short-time working?

Short-time working is similar to lay-off, but rather than providing no work the employer provides reduced work. Less than half a normal week’s work and pay will trigger the statutory short-time working protections for employees, subject to eligibility requirements.

Correct as at 27 May 2020

Am I entitled to any money if I am put on lay-off or short-time working?

A statutory ‘guarantee payment’ is payable to employees, subject to certain requirements. The maximum payment is £29 per day for up to five ‘workless’ days in any three-month period, so a total maximum of £145. Part-time payments are calculated pro rata.

Your employer could choose to pay more at its discretion or if required by the relevant lay-off / short-time working provisions in your contract. This discretion must be exercised fairly and in a uniform manner to avoid complaints of unfair treatment amongst the workforce.

Correct as at 27 May 2020

Can lay-off trigger redundancy?

There are mechanisms within the lay-off scheme through which redundancy is triggered. If the lay-off lasts for four weeks in a row, or six weeks in a 13-week period, employees can opt for redundancy. In those cases, a statutory redundancy payment would be triggered.

Correct as at 27 May 2020

Can my employer introduce a lay-off or short-time working provision if there is not already one in my employment contract?

This would be a change to contractual terms and conditions and consent from you would be required. You may be willing to give consent at this unpredictable time if it is a measure to avoid redundancy.

Correct as at 27 May 2020

Unpaid suspension

Can my employer temporarily suspend me on zero pay?

Without a clear contractual right to suspend in these circumstances, your employer has no clear route to employee suspension without pay. Your employer may seek an agreement to changes to pay and working hours. If your employer imposes suspension without agreement, you may be able to make a claim against them.

Even with such a clause, this clause must still be exercised reasonably by the employer and this will depend on the size and financial means of the employer and the length of the proposed change.

Correct as at 27 May 2020

Can my employer temporarily suspend me on reduced pay?

Employers need a clear contractual right to reduce pay and suspend employees temporarily. Asking employees to stay at home for a temporary period on reduced pay would be a proposed contractual change. Agreement must be sought from you before the change can be implemented. For example, certain airlines are currently seeking to agree periods of unpaid leave with employees, with reduced payments spread over several months to minimise the impact on employees.

Your employer should aim to be transparent with you about the reason for the temporary suspension, as well as what potential alternatives might look like. For example, they may have to consider making redundancies.

Correct as at 27 May 2020

Can I claim tax relief for additional expenses that I incur for home working?

Yes. A deduction from earnings is only allowed if:

  • you incur and pay the expenses as an employee; and
  • the expenses are incurred wholly, exclusively and necessarily in the performance of duties of employment.

It is likely that HMRC will only accept a deduction where no facilities are available for you to work at your employer’s business premises and there was no other choice but for you to work at home. If you have the choice between working at home and at the employer’s business premises, relief will not be available.

Correct as at 9 June 2020

Contact an employment solicitor

Employment rights and income if you are self-employed

I’m self-employed. What support will the government provide?

A range of measures have been introduced by the government to support the self-employed at this time. Principal amongst these is the Self-employment Income Support Scheme (SEISS), applications for which opened on 13 May 2020. SEISS provides a taxable grant worth up to 80% of their monthly wages (up to a cap of £2,500 per month). HMRC will contact those eligible for the scheme and invite them to apply.

To qualify for SEISS, the majority of your income must come from self-employment and your annual profits must be under £50,000. You must be self- employed or a member of a partnership; have lost trading or partnership trading profit as a result of the coronavirus pandemic; have filed a tax return as self-employed or a member of a partnership for the 2018-2019 tax year; have traded in 2019- 2020; and intend to continue trading in the tax year 2020-2021.

The scheme is intended to last for an initial period of three months and the first payments are expected to be made in late May 2020.

Importantly, SEISS does not apply to persons operating through a personal service company and who receive most of their income as dividend payments. Many self-employed people will not qualify for the scheme because they do not earn enough from self-employment to be eligible, earn more than the £50,000 threshold, or only started working for themselves within the past year.

Other measures that may assist the self-employed during the crisis include:

  • the Coronavirus Business Interruption Loan Scheme to support businesses with an annual turnover of less than £45m and who generate more than 50% of their turnover from trading activity;
  • the Bounce Back Loan Scheme providing loans of between £2,000 and £50,000 (capped at 25% of your business’ total turnover);
  • an adjustment to Universal Credit so that the self-employed in self isolation (and provided they have less than £16,000 of savings) can claim the same amount as an employee would receive as statutory sick pay (£95.25); and
  • deferral of payments due in July 2020 for self-assessment tax until January 2021.

Correct as at 19 May 2020

Contact a corporate solicitor

Getting a divorce

Will there be a delay in dealing with my instructions?

Our team is working remotely and we are fully supported by the secretarial and support teams. If there were to be a delay we would inform you at the outset in accordance with our professional obligations, but at present this is not an issue.

Updated 8 Sept 2020

My husband and I have separated and he has agreed to my request for a divorce. Am I able to instruct you to commence proceedings now or should I delay until the coronavirus lockdown measures have been relaxed?

If you and your husband have reached the decision to divorce, there is no reason why you should delay in instructing us to commence proceedings. The first step is for us to take your detailed instructions which will can do via Skype or WhatsApp. If this is not available to you, they can be emailed to us and we will then follow this up with a phone call.

The biggest hurdle facing divorcing couples during the coronavirus pandemic will be the severely reduced capacity of the family courts. If you and your husband agree on the key provisions relating to finances and children, then this is unlikely to be a problem. However, contested divorces which require the input of the courts will be affected. In these cases, we will work even harder to encourage the parties to use alternative dispute resolution such as mediation in order to avoid additional delays.

Updated 8 Sept 2020

My wife and I are separated and are keen to divorce collaboratively. We would like to get on with this as soon as possible. Can I instruct you to do this with the current coronavirus restrictions in place?

Yes of course. Provided your wife instructs a solicitor who is fully enabled to work remotely, there is no reason why we cannot proceed with the collaborative process. The first step would be to take your instructions. We can do this over Skype or WhatsApp or, if this is not available to you, they can be emailed to us and we will then follow this up with a phone call. We would need to discuss the issues we will be attempting to resolve. You will need send us all necessary information, such as evidence of your/your children’s living costs and the full extent of your assets. Once we have had this initial meeting, we can then arrange to have the first four-way meeting with your wife and her solicitor, which can be done remotely.

Updated 8 Sept 2020

Read more about our divorce and separation services

Chris Longbottom - Divorce and family solicitor - Clarke Willmott ManchesterFor more information, please contact
Chris Longbottom
Partner
0345 209 1775
chris.longbottom@clarkewillmott.com

Child maintenance, custody and childcare

My restaurant business had to temporarily close as part of the government’s coronavirus policy. It has only just re-opened but we are very quiet. I am worried about how this loss of revenue will impact on my ability to make my child and spousal maintenance payments. Is there anything I can do?

This is a very worrying time for business owners. If you have been ordered by the court to make these maintenance payments, you must remember that court orders are legally binding and however dire your situation, you should not simply stop making the payments. There are several options available to anyone in this situation and we can help you to explore them. For example, we can write to your ex-wife/her solicitor to set out the issues and propose an interim payment plan. If this is unsuccessful, we would look at applying to the court to vary the terms of the maintenance order.

A final option we could consider is an application to set aside the order on the basis that the coronavirus pandemic is a Barder event. A Barder event is a significant and unforeseen event which could not have been considered at the time of making the order. However, this option is fraught with uncertainty and difficulty for the following reasons:

  • We currently do not know whether the coronavirus pandemic constitutes a Barder event. The courts may be reluctant to label it as such for fear of opening the floodgates.
  • An application of this kind needs to satisfy the court that:
    • The subsequent event (impact of the coronavirus) has invalidated the basis upon which the original order was made;
    • The event occurred within a relatively short period of time of the original order;
    • The application was made promptly;
    • The value of your business had reduced so dramatically (this would need to be evidenced from the outset) that the original order should be overridden.

If an order is set aside, it means that the original order is off the table and all the factors would come back into play for the court to basically re-determine the case.

Updated 8 Sept 2020

I have recently divorced from the mother of my two children and the child arrangements were set out by court order. However, I am really confused as to whether this is impacted by the current government mandate on self-isolation/staying at home. I am also worried that my ex-wife might use the current mandate as an excuse for the children not to see me.

The government has made it clear that the movement of children under the age of 18 between their parents’ homes is one of the exceptions to the stay at home mandate. However, movements should be limited to only that which is necessary.

It is important that co-parents work together to ensure that the best interests of the children are put first and foremost during this difficult time. This will require flexibility by both parties and inevitably a mutual agreement to temporarily amend the terms of the order. This will allow you to adapt the childcare arrangements in the event of illness, for example if you/your co-parent or a member of your respective households experiences symptoms of the virus. If the children are in that affected household at the relevant time they will need to stay there and self-isolate for 14 days. During this time, it is important that the contact is maintained remotely with the other parent through Skype or WhatsApp, and that your normal routine is restored as soon as is possible to minimise disruption.

If you cannot get your ex-wife to agree to arrangements that you think are in the best interests of the children in these circumstances, then it is important to seek urgent legal advice. We will be able to arrange for a mediator to intervene or, if your wife is not amenable to this, we will arrange for an urgent application to be made to court. Our advice and any mediation or court hearing can be done remotely.

Updated 8 Sept 2020

I usually have custody of our 10 year old twins on the week days of the school holidays. However, I am a key worker and therefore not able to care for the children during the day. My ex-husband is working from home and is reluctant to have them as he thinks they will be a disruption. He is insisting we send them to school, but I would rather he looked after them. Is there anything I can do?

If your childcare arrangements are set out in an order this can be varied, but only if both parties agree. If your husband does not agree to amending the arrangement, your only option is to send them to school. Ultimately, the children’s interests are paramount and if your ex-husband is not willing to be flexible and care for them then they would be better off being cared for at school.

Updated 8 Sept 2020

Read more about our child maintenance and custody services

Chris Longbottom - Divorce and family solicitor - Clarke Willmott ManchesterFor more information, please contact
Chris Longbottom
Partner
0345 209 1775
chris.longbottom@clarkewillmott.com

Growing your family and fertility treatment

Our first baby is due to be born via a US surrogate next week. My husband and I have successfully travelled to the US in advance of the birth. What is the situation with regards to getting our newborn baby back to the UK?

Previously, international parents to a child born via a US surrogate would spend a few weeks in the US with their newborn while waiting to receive their child’s birth certificate and then a US passport. However, the coronavirus pandemic and the accompanying travel restrictions has made international surrogacy intensely challenging. On 20 March 2020, the State Department reduced passport services operations.

The passport agencies and centres are now in the process of a phased re-opening. As of Monday 17 August, there are six agencies and centres in phase two and 13 agencies and centres in phase one of re-opening.

In phase one, the agencies and centres will be minimally staffed and are prioritising services for those with a qualified life-or-death emergency by appointment only. “Life-or-death emergencies” are defined here as “serious illness, injuries, or deaths in your immediate family (e.g. parent, child, spouse, sibling, aunt, uncle, etc.) that require travel outside the US within 72 hours.” Other applications will be processed in the order they were received on a first in, first out basis. Under Phase two, more staff will be returning to the offices and they will be able to resume processing more of the applications already received.

There have been a few reported cases of international parents instructing US attorneys to argue the “life or death emergency” case for their child’s passport application and being successful. There have also been cases of children being granted British citizenship within days, rather than the six months usually required, and an emergency passport being issued within one week. Our understanding is that the process is still fraught with risk and expense. However, we have good links with US attorneys who specialise in fertility and surrogacy law and we can explore the options with you.

Correct as at 24 August 2020

My partner and I had been due to commence IVF treatment at a fertility clinic in the UK. In March 2020 we had been contacted by the clinic to say that our treatment would be impacted by new coronavirus restrictions, but we now understand that there have been changes to these restrictions and clinics are starting to re-open. What is the current guidance on fertility treatment in the UK?

On 23 March 2020 the Human Fertilisation and Embryology Authority had instructed all fertility centres to cease treatment services (with the exception of non-elective fertility preservation treatment) by 15 April 2020, at the latest. However, this guidance was updated on 1 May 2020 to confirm that fertility centres can re-open from the week commencing 11 May 2020, subject to meeting new safety guidelines. A list of the fertility clinics authorised to resume treatment can be found on the HFEA website.

Correct as at 24 August 2020

I am approaching the 10-year limit for storage of my embryos. My fertility treatment had been suspended during the coronavirus pandemic and I am still yet to resume treatment. I am concerned that I am running out of time to undergo fertility treatment. Is there an option to extend the time limit?

The government has announced a 2-year extension to the current 10-year storage limit for embryos and gametes given the temporary suspension in services during the coronavirus pandemic. This is designed to allow sufficient time for fertility clinics to resume services, and ensure that “those that have embryos, sperm or eggs stored as part of their treatment are not unfairly caught out by the existing storage limits and have the best possible opportunity to start their family in the future” (Lord Bethell, Health Minister).

Correct as at 24 August 2020

Read more about how we can support you with surrogacy and assisted reproduction legal advice.

Sarah Wood-Heath - Family Solicitor - Clarke Willmott SouthamptonFor more information, please contact
Sarah Wood-Heath
Partner
0345 209 1226
sarah.wood-heath@clarkewillmott.com

Putting a pre or postnuptial agreement in place

I have recently married my long-term partner and we would like to put a post-nuptial agreement in place as soon as possible. Are you able to prepare this for us even though your office is closed?

Absolutely. We are fully equipped to work remotely and can prepare any legal agreements provided they have received clear instructions as to the terms. While we are not holding face-to-face meetings, we can take your instructions for the documentation via Skype or WhatsApp. If this is not available to you, they can be emailed to us and we will then follow this up with a phone call.
We can also put prenuptial agreements in place during this time.

Updated 8 Sept 2020

Read more our pre or postnuptial agreement services

Chris Longbottom - Divorce and family solicitor - Clarke Willmott ManchesterFor more information, please contact
Chris Longbottom
Partner
0345 209 1775
chris.longbottom@clarkewillmott.com

Moving in with a partner

When the government announced the coronavirus lockdown, my long-term partner and I decided that he would move in with me immediately to ensure we can continue to see each other without breaching the restrictions. He has previously lived with his parents; I own my own flat. Should we put an agreement in place?

We would absolutely recommend that you put a cohabitation agreement in place. This should set out practical details such as how you propose to split the bills and more significant issues such as ownership of assets. As your decision to move in together was perhaps not as premeditated as it may have been in ordinary circumstances, the agreement will give you both an opportunity to sit down and work out the details of this arrangement. While we are not holding face-to-face meetings, we can take your instructions for the documentation via Skype or WhatsApp. If f this is not available to you, they can be emailed to us and we will then follow this up with a phone call.

Updated 8 Sept 2020

Read more about our cohabitation agreement services

Chris Longbottom - Divorce and family solicitor - Clarke Willmott ManchesterFor more information, please contact
Chris Longbottom
Partner
0345 209 1775
chris.longbottom@clarkewillmott.com

Buying and selling residential property

My understanding is that the housing market is on hold pending the COVID-19 restrictions. Is that correct? Is your office still open for business?

The market is not on hold. The government had recommended that sellers and buyers do not enter into new contracts and, where possible, agree to extend the completion date on those contracts already agreed. However, that guidance changed from 13 May 2020. Although social distancing and other measures need to be observed, estate agents can now re-open their offices on an appointment basis and conduct house viewings, subject to restrictions and any local lockdowns. Surveyors and valuers can now resume their work and attend properties, subject to protective measures. Home buyers and sellers can now proceed to exchange of contracts and completion, but professionals and all concerned should ensure that moves are completed whilst maintaining safety. First viewings of properties should take place virtually and all contact should be minimised.

Clarke Willmott is still open for business. We have a skeleton facilities team working in the offices to keep on top of opening post etc and all solicitors and secretarial support are fully enabled to work remotely. Whilst we cannot take instructions from clients in person, we are taking instructions over the phone or via video call. If you wish to speak to a residential property solicitor, then please complete our enquiry form.

Updated 7 Sept 2020

I am selling my house and have received an offer. Fortunately, neither of us are in a chain but I am concerned about proceeding in view of the government’s lock-down policy. Should I decline the offer and take my house off the market whilst the coronavirus restrictions are in place?

There is no reason to pull out of the sale, but it is important to be honest with yourself and the buyer that the process will take a lot longer than usual. Although it is currently possible to complete your sale, the government could change their restrictions again at any point.

You also need to remember that the buyer may not be able to obtain all their search results as some local authorities were no longer providing them or may now be subject to delays. Removal firms are now able to resume work, subject to social distancing and other guidelines. If your buyer has a lender the valuer will now be able to visit the property. They will require you to socially distance and should specify prior to their visit any other requirements.

Updated 7 Sept 2020

I am about to exchange contracts on a property with a completion set to take place in 14 days. However, I am worried that my financial situation may change as a result of the economic pressures of the coronavirus pandemic. Could I pull out if that happens?

Once you have exchanged contracts on a property then you have entered into a legal agreement to purchase it.

If you do not complete on the agreed date, the standard contractual provisions apply and you will be in default. The seller would then be able to serve a ‘Notice to Complete’ requiring you to complete within 10 working days. If you don’t then the contract is breached and the seller can keep the deposit and accrued interest. Additionally, if the market subsequently drops and the seller sells for a lower price, the seller may have a claim against you for the difference in price. If the seller is in a chain, they may have no option but to do this in order to save the chain from collapse.

Whilst the Law Society has urged parties to be sensible and reasonable in these unprecedented and uncertain times of COVID-19, the reality is that you could still lose your deposit if you are unable to proceed and more. The Law Society is recommending solicitors to encourage clients not to exchange until the situation is more settled and we would endorse this advice if you are at all unsure that you will be able to proceed to completion.

Updated 7 Sept 2020

What if someone in our household has the virus or symptoms on the completion date once we have exchanged contracts?

Ideally, we would advise that contracts are exchanged simultaneously with completion, to minimise this risk. However, if contracts have been exchanged, we would have ensured at the point of exchange of contracts that the contract makes explicit provision for the risks presented by the virus, including the possibility that at the time of completion, any party could be in self-isolation. This would enable completion to be delayed by a period, which would have been agreed in advance with the other parties in the chain.

Updated 7 Sept 2020

Can I sign contracts and deeds electronically?

There is a difference in the way contracts and deeds are concluded. Contracts can be signed with only a signature, but deeds must be formally executed which requires a witness to your signature.

We are able to exchange contracts virtually using an electronic signature. This can be something as simple as you typing your name into a contract that we send you and returning it to us as a scanned copy or you might take a photograph of the signed document and send it to us, if the other side agree.

This does not work for deeds. In this case we need you to sign the document with your usual handwritten signature in the presence of a witness and return it to us. You should maintain social distancing and not share pens. HM Land Registry requires us to be in possession of original documents when we make an application for registration. Your lender will want us to be able to confirm that we have the charge signed by you in our possession before we complete.

So, whilst we may be able to exchange contracts, we will need to think carefully about whether we can secure the deeds we need for completion.

Updated 7 Sept 2020

The sale of our property is due to complete next Friday. The buyers are cash buyers and there is no chain. We are due to move into vacant rental accommodation immediately, but the buyers are concerned about moving into our property as it will have been occupied by us right up until completion. They have asked for us to delay completion for another week to allow the property to be deep cleaned following our move. Is this fair?

The current government advice means that you can proceed to completion provided that all parties in the chain (including estate agents and removal companies) adhere to the Public Health England guidance on social distancing and hygiene and no one in the chain is experiencing COVID-19 symptoms and required to self-isolate.

As this is such an unprecedented time, we are advising our clients to be flexible and reasonable whenever possible and this is an instance when that may pay off. Clearly your buyers are nervous about moving into a property which has been occupied. Whilst you may not be displaying symptoms of COVID-19 at the time of the move, there is still a risk that you may be carriers of the virus and therefore their request for a deep clean is understandable.

Guidance issued by the Law Society is that a deep clean is advisable. However, this does not mean that a deep clean is absolutely necessary. Cleaning companies are in high demand and so you and/or the buyer may struggle to find a company available and willing to undertake the work. You could move out immediately and the buyers not complete and move in until at least 72 hours, or as requested, a week has passed. On current advice, it is very unlikely that the virus would still be alive on any surfaces in the house. If this timetable takes you past the agreed completion date, then we could agree with the buyer’s conveyancer that no action will be taken for late completion before the full week has elapsed.

Updated 7 Sept 2020

Read more about our residential conveyancing services

Rod Lloyd-Jones photo, Partner Private Property & AgricultureFor more information, please contact
Rod Lloyd-Jones
Partner
0345 209 1743
rod.lloyd-jones@clarkewillmott.com

Renting a residential property (for tenants and landlords)

I am renting a property under an assured shorthold tenancy agreement, but I am worried about my job security. What are the implications for my tenancy if I lose my job as a result of the coronavirus pandemic and become unable to pay my rent?

The government has introduced a package of measures to protect tenants during the coronavirus pandemic. One of those measures is that landlords must give all renters between three and six months’ notice if they intend to seek possession – on whatever grounds. This measure includes assured shorthold tenancies.

The rules as to notice periods change according to when the notice is given:

Assured Short Hold Tenancies

  • Prior to 26 March 2020, a notice was required to give at least 2 month’s notice;
  • Between 26 March and 28 August 2020, three months’ notice was required; and
  • From 28 August 2020, six months’ notice is now required.

Assured Tenancies and Assured Shorthold Tenancies within the fixed term

  • The length of notice period that should be given changes depending upon the grounds for the notice, but range from two weeks to six months. Please contact us for advice if you have been served with a s.8 Notice.

What this means in practice is that you are still liable to pay the rent. However, if you fall behind with your rent payments as a result of coronavirus, your landlord cannot progress possession proceedings before the appropriate notice period has expired. The same applies to ‘no fault notices’ where the landlord is entitled to bring a tenancy to an end under the terms of the tenancy without needing to give reasons, i.e. regardless of any failure to pay rent. These measures are currently in place until 31 March 2020, but all possession claims issued between 26 March and 20 September 2020 are subject to a mandatory stay, which may be extended.

Landlords are being encouraged to be as supportive and flexible as possible. If you are worried about your ability to pay your rent, you should speak to your landlord as soon as possible. They may agree to accept a lower rent in the short term or may even agree a rent-free period.

If you are unable to reach an agreement with your landlord, you should seek urgent legal advice from a solicitor and/or a specialist organisation such as Shelter or the Citizens Advice.

Updated 28 August 2020

I am landlord of several properties and am worried about my legal obligations to provide regular gas and electrical safety inspections. Will I be prosecuted if I can’t get access because I or my tenants are self-isolating due to COVID-19?

Gas safety

Since 1998, landlords in England and Wales have been under a general duty to ensure that any relevant gas fitting or flue serving the gas fitting is maintained in a safe condition. This is to prevent the risk of injury to any person in lawful occupation of the relevant premises.

In addition to that general duty, the landlord must:

  • ensure that each appliance and flue is checked for safety within 12 months before a lease commences, or within 12 months of instalment, whichever is the later;
  • thereafter to undertake safety checks at intervals of not more than 12 months;
  • ensure that those checks are undertaken by a person approved by the Health and Safety Executive (HSE); and
  • adhere to requirements in relation to documenting these checks and providing copies of documentation to the tenants.

Electrical safety

For most residential tenancies granted after 1 July 2020 in England, there will be new duties in relation to electrical safety, which must be carried out before the tenancy commences. They include:

  • ensuring that specified electrical safety standards are met for any period when the residential premises are occupied under a specified tenancy;
  • ensuring that every electrical installation in the premises is inspected and tested at regular intervals by a qualified person (regular intervals means intervals of no more than five years unless more frequent intervals have been specified on an earlier inspection); and
  • adhering to requirements regarding the documentation of these checks and providing copies to tenants.

These requirements do not currently apply to properties in Wales.

The coronavirus pandemic does not reduce or otherwise affect the need for landlords to comply with the gas and electrical requirements set out above. It remains the case that failure to comply with these requirements can result in serious consequences, including the landlord being prosecuted.

However, the government is conscious that some tenants will not be comfortable with inspections being carried out at this time. As such, the government is encouraging local authorities and other enforcement agencies to take a pragmatic, common-sense approach to enforcement in these unprecedented times. Read the latest guidance for landlords and Gas Safe engineers and inspectors from the HSE.

If you are not able to gain access to the property due to restrictions in place to tackle COVID-19, or you are not able to engage a contractor to carry out the necessary work, it is important that you document your attempts to do so. You should keep copies of all emails and other forms of correspondence, as well as notes of all telephone calls between you and contractors and/or the tenants, in order to provide evidence of your attempts to comply with your obligations.

Updated 28 August 2020

I am renting out my house on an assured shorthold tenancy whilst I am living with my parents. My tenant has called to say that the washing machine has broken down and she cannot repair it herself. Ordinarily this would be my responsibility to repair but as lockdown is being eased, can I now arrange for repairs?

Your health and safety obligations as a landlord are not put on hold or reduced as a result of the coronavirus pandemic. Any urgent health and safety repairs must be carried out by landlords during the coronavirus lockdown. Urgent health and safety issues are those that will affect your tenant’s ability to live safely and maintain their mental and physical health in the property. This includes (but is not limited to):

  • a problem with the fabric of the building, for example the roof is leaking;
  • a boiler is broken, leaving your tenant without heating or hot water;
  • a plumbing issue, meaning your tenant does not have washing or toilet facilities;
  • white goods such as fridge or washing machine having broken, meaning the tenant is unable to wash clothes or store food safely;
  • a security-critical problem, such as a broken window or external door; and
  • equipment a disabled person relies on requiring installation or repair.

Therefore, you should arrange for the washing machine to be repaired subject to the tenant and anyone attending the property being COVID-19 symptom-free and ensuring that all the necessary hygiene measures are complied with. As always, communication is key. If you are concerned about the risks of attending the property, you must speak to the tenant as soon as possible and make a plan. If your tenant refuses to allow access or your contractor refuses to attend the property, make sure this is documented and recorded so that you can provide evidence of your attempts to comply with your legal duties.

Updated 28 August 2020

I am renting a flat under a six month assured shorthold tenancy agreement. My landlord called me yesterday and asked if I would accept an increase in my rent as he is worried about the financial impact of the coronavirus pandemic. I am also worried about the financial consequences of this pandemic and really do not want to agree to the increase unless I really have to. What can I do?

During the fixed term period of your tenancy changes can only be made if both the tenant and the landlord agree. During this time the landlord cannot increase your rent, reduce your rights or assign you any new responsibilities which you didn’t have before. Therefore, if your landlord asks you to agree a new rent then the rent will only go up in this situation if you agree to it. If you don’t agree to the increase and don’t pay it, the rent will remain the same but your landlord may be able to take steps to end your tenancy. However, he or she cannot commence proceedings without serving at least three months’ written notice on you.

Your landlord may offer you a new tenancy on an increased rent once the original fixed term agreement has expired. However, you do not have to sign the new tenancy if you do not wish to and your tenancy will continue on the terms of the original agreement (i.e. the rent will remain the same). However, it is important to note that if you do not sign a new tenancy your landlord might take steps to end your agreement or seek to increase the rent by other means.

A third way in which the rent may be increased is through a rent review clause. A rent review clause is a term in a tenancy agreement that sets out how and when rent can be increased. Rent review clauses normally operate on the basis that the rent can be increased on certain anniversaries of a tenancy and set out a procedure for how such increases shall take effect. The procedure usually provides an opportunity for the tenant to object to the proposed increase. We recommend reading your tenancy agreement to see if there is such a term and if so, what it says about rent reviews.

Finally, once your fixed term comes to an end and assuming it is not replaced with a new tenancy agreement, your tenancy will become a statutory periodic tenancy. In these circumstances, your landlord can give you formal notice of a rent increase called a section 13 notice. They cannot use this procedure more than once a year. There is a prescribed form for giving this notice and it is possible to challenge it formally in a tribunal. If your landlord serves a section 13 notice on you, it is important to seek legal advice if you wish to challenge it.

Updated 28 August 2020

I am renting out my flat whilst caring for my parents. My tenant has lost her job and has asked me if I would agree to temporarily reduce the rent whilst she looks for new employment. I am happy to do this. Do I need to put a formal agreement in place?

There is no requirement for you to have a formal agreement, but it would make sense to document the details of the rent reduction in (at least) a chain of emails so that you have a record. Above all else, it is important to agree the exact details of the deal – what is the new reduced rent, when does the reduced rent start to become payable, how long are you reducing it for etc. That way, you can try to reduce the risk of any future dispute.

Similarly, if rent arrears have already accrued and you have agreed to defer payment of those arrears or accept a lesser amount, then this should be clearly documented so as to prevent any later misunderstandings.

Updated 28 August 2020

Do I have to move if my landlord does not have a court order?

Under the Protection from Eviction Act 1977, your landlord cannot force you to leave your home without a court order and writ or warrant of execution of that order. The 1977 Act also protects some people who occupy their home under a licence. Breaches of the 1977 Act can give rise to a civil action against the landlord and such breaches can constitute a criminal offence.

Even where the 1977 Act does not apply a landlord cannot use violence or threat of violence to evict someone.

The government has introduced a package of measures to protect tenants during the COVID-19 outbreak. One of those measures is that landlords must give all renters three months’ notice if they intend to seek possession – on whatever grounds. Any new possession proceedings (i.e. possession proceedings issued between 27 March and 30 September 2020) or existing possession proceedings will automatically be put on hold / stayed until 20 September 2020. This measure includes assured shorthold tenancies and applies to all possession proceedings regardless of whether they relate to residential occupiers or not.

The government has introduced a package of measures to protect tenants during the COVID-19 outbreak. One of those measures is that landlords must give all renters three or six months’ notice (depending upon when the notice is given if they intend to seek possession – on whatever grounds. Any new possession proceedings (i.e. possession proceedings issued between 27 March and 30 September 2020) or existing possession proceedings will automatically be put on hold / stayed until 20 September 2020. This measure includes assured shorthold tenancies and applies to all possession proceedings regardless of whether they relate to residential occupiers or not.

Updated 28 August 2020

Read about our property litigation and civil dispute resolution services

Robert Mullen photo, Associate Commercial & Private Client LitigationFor more information, please contact
Robert Mullen
Associate
0345 209 1841
robert.mullen@clarkewillmott.com

Consumer rights for cancelled and postponed events

Why are events being cancelled?

To help limit the spread of the coronavirus, the government has banned any gathering of more than two people with only limited exceptions, such as funerals. As a result a number of well know events have been cancelled or postponed, including Glastonbury 2020, the London Marathon, Premier League football matches, Wimbledon and the Tokyo Olympics. Other smaller events such as theatre performances and concerts have also been cancelled.

I have tickets for an event that has been cancelled. Can I get my money back?

Organisations such as Ticketmaster are required by the Society of Ticket Agents and Retailers (“STAR”), to refund the ticket’s face value price when an event is cancelled. This will only be applicable if you bought your tickets directly from the event organiser. These protection measures do not provide for a refund of any delivery costs or booking fees, unless the event organiser’s terms say otherwise.

If you did not buy the tickets directly from the event organiser but from a secondary ticket seller such as Viagogo, you will need to check the seller’s terms and conditions. The terms and conditions will state if the seller will offer any refunds, or if there are any other protection measures if an event is cancelled.

I have tickets for an event that has been postponed. Can I get my money back?

If an event has been postponed and you are unable to attend the rescheduled date, you can claim a refund of the ticket’s face-value price if you purchased the ticket from the primary ticket seller. As with cancelled events, it is unlikely that you will get the delivery costs or booking fees back; you will have to check the seller’s terms and conditions for their position on this.

You will have fewer protections if you purchased the tickets from a secondary ticket seller. The seller’s terms and conditions will state what action you can take.

The ticket seller will not refund the cost of my ticket. Can I get my money back any other way?

If you have made a claim to the ticket seller and this has either been ignored or refused, you can contact your bank or credit card provider.

If the tickets cost more than £100 but less than £30,000 and you paid using your credit card, you have additional protections if something goes wrong. Section 75 of the Consumer Credit Act makes your credit card company jointly liable for any breach of contract (such as an event cancellation), which means you can claim your money back directly from the credit card provider.

If you paid by debit card, you can ask your card provider to reverse a transaction on your credit or debit card in a process called chargeback. Unlike Section 75, chargeback isn’t a right or law and offers no guarantees, but it is a way your bank may be able to help you. Chargeback can also be useful where the cost of the tickets is under £100 and Section 75 doesn’t apply.

Contact a solicitor

Making a personal injury or clinical negligence claim

Are your Personal Injury and Clinical Negligence teams still working on claims?

Yes, very much so. Our Personal Injury and Clinical Negligence teams are working from home. We have access to the latest secure technology, which means that we can work on your cases without disruption. We remain contactable by email and by telephone and have full access to your file. Clarke Willmott’s business support teams are also still operating, for example the firm’s finance team, and we can progress your case as usual.

If there is anything that we can do to make instructing us at this difficult time any easier then please let your lawyer know. We will do everything we can to best support you and those involved in your case during this time of disruption.

How are you taking instructions?

We offer a bespoke, client focussed service that means that we engage with our clients however necessary, often in person if required.

We are making use of technology to hold video conference calls with new and existing clients, experts and opponents if necessary, and we can send and receive large or sensitive files securely via web-based platforms.

How are hospitals providing medical records at this busy time?

The impact of the coronavirus pandemic is not limited to the wards and theatres of a hospital. All NHS services, including legal and medical record departments, have their part to play. This means it is currently taking a little longer to obtain some medical records, although many Trusts are still able to meet the statutory one month timeframe. We are taking a proactive and responsible approach to chasing overdue notes, balancing the need of the client against the limited resources available to hospitals at the moment.

Are experts still providing reports?

Yes. We only instruct reliable and experienced expert witnesses, and they take their medico-legal responsibilities as seriously as their clinical work. We are working with our experts to ensure that existing deadlines can be met, or at least delays minimised, to ensure progression of cases.

We may find that examination appointments will be delayed. This is both to ensure that social distancing measures can be met, but also to free up some time for doctors to dedicate to the frontline. Where there is likely to be a delay, we will explain why, what options are available to you and keep you updated with any progress. In some limited cases, a video consultation with a medical expert may suffice in order to avoid the need for physical examination. In those cases, we have found there has been no delay in progressing with production of medical reports.

Are court hearings or trials affected by the coronavirus pandemic?

The message from the Courts Service, HMCTS, is that courts and parties should do all they can to keep hearings on track. Courts are utilising technology, such as video conferencing, to host hearings and trials where possible.

However, the overwhelming test is that the quality of any trial and the interest of justice must prevail. If a judge does not think that a case can be heard fairly or reliably by video link, and it is not possible to exercise social distancing in the courtroom, a hearing or trial may be delayed.

Personal injury and clinical negligence trials pose a unique problem in that many of the witnesses are doctors or other clinical staff. The need to have them on the COVID-19 front line may make even virtual trials difficult to arrange.

Courts are not taking these decisions lightly, and we as your lawyers will be involved in the decision-making process about which approach is in your best interest.

Are compensation payments still being made?

Most compensation payments are by bank transfer and remain unaffected by the coronavirus outbreak. Even if a cheque is raised, we are able to arrange the banking of payments. Our usual payment clearing timescales apply.

Contact a personal injury or medical negligence solicitor

Contact a solicitor

If you need to speak to someone and are unsure which of our solicitors will be able to help, please complete an enquiry form and we will get back to you.

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