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Defective title insurance—checklist

Defective title insurance—checklist A Checklist for use when acting for a buyer who is considering taking out a policy or relying on an existing policy to plug a defect in title revealed during the due diligence process. A title is defective where it is not good and marketable (see Practice Note: What is a good and marketable title?) or where there is a risk that a third party could establish an interest adverse to the title. In the right circumstances, the right policy can be a useful tool which enables the transaction to proceed and the buyer to secure finance. However, care must be taken to ensure that the policy is worth the paper that it is written on. It is important to consider whether insurance might be the best approach as early as possible, particularly as insurance is not normally available where the party with the benefit of the relevant right or covenant has been approached. Insurance distribution—regulatory requirements Solicitors need to be aware of their duties and obligations...

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Resale of second-hand software

Resale of second-hand software When commercial software is acquired from a software supplier, a non-exclusive licence is usually all that is obtained. The supplier retains copyright ownership in the code—they permit a transfer or download of the code to the buyer, and, in exchange for a fee, the buyer takes a licence subject to often extensive terms and conditions. Although software is commonly referred to as being ‘bought’ or ‘sold’, the legal basis is (at least for commercial applications) that there is invariably no transfer of ownership. Only a limited right to use is being acquired. This Practice Note considers the legal and commercial issues surrounding whether such licences if no longer required by the licensee can be ‘resold’, ie assigned to a new user. Second-hand software market This Practice Note is concerned with the resale of business software—as opposed to games software; this has different characteristics namely, the incorporation of music, pictures and animation which raise additional copyright issues. Following the ruling by the EU’s Court of Justice...

Issues which arise on developing agricultural land

Issues which arise on developing agricultural land A number of issues can arise when land is no longer used for agricultural purposes, whether as the result of a disposal of the land out of farming altogether or a diversification of activity within a continuing farming enterprise. Overage Agricultural land continues to be sold to developers (and others) who harbour short or long term hopes of securing planning permission for residential or commercial development of it. There is, of course, a huge difference in the value of the land with and without such permission. In those circumstances, if acting for the seller you should always consider whether the sale contract should contain some form of overage (sometimes also known as ‘clawback') mechanism so that the seller or their successors in title can share in the increased value of the agricultural land as and when planning permission is obtained. For further guidance, see Practice Note: Overage—advice to clients and Negotiating overage—acting for the seller—checklist. Sporting rights Agricultural land may...

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Trust for a disabled person—discretionary

Trust for a disabled person—discretionary This TRUST is made on [date] Parties 1 [settlor] of [address] (the Settlor) and 2 [original trustees] of [addresses] (the Original Trustees) Background (A) The settlor wishes to make this Trust and has transferred to the Original Trustees the assets described in Schedule 1 to be held on the following trusts. (B) The Principal Beneficiary is a disabled person within the meaning of that term in the Finance Act 2005, Schedule 1A. This Deed PROVIDES: 1 Definitions and interpretation In this Trust: 1.1 Discretionary Beneficiaries • means (a) any spouse or [widower OR widow] whether or not remarried of the Principal Beneficiary; (b) the descendants of the Principal Beneficiary; (c) the spouses, widows or widowers (whether or not remarried) of the descendants of the Principal Beneficiary; 1.2 Principal Beneficiary • means [disabled person]; 1.3 spouse • shall include a civil partner registered under the Civil Partnership Act 2004 and a spouse of the same sex, and a person is a...

File note—insurance demands and needs—law firms

File note—insurance demands and needs—law firms 1 Client’s demands and needs What risk does the client need to insure and why? [Describe the risk the client needs to insure and why] What checks have you made to establish whether the client has existing insurance that may cover this risk? [Describe the checks you have made to establish whether the client already has insurance or other indemnity that may be suitable, eg under their household insurance policy or via a trade union] 2 The recommended insurance Name of proposed insurance provider What type of policy are you recommending? [Insert, eg Title indemnity insurance] How much is the premium or how is the premium calculated? [Insert amount or formula] Is this a one-off premium or are renewal/staged premiums required? When and how is the premium required to be paid, eg up front or deferred to conclusion of matter? Is a credit arrangement available for the premium[, eg a consumer credit agreement]? Is the premium self-insured ie,...

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Would a grave deed be considered an asset for the purposes of financial remedy proceedings. If a spouse is named on grave deeds, would the family court have jurisdiction to have that spouse’s name removed under the inherent jurisdiction?

Would a grave deed be considered an asset for the purposes of financial remedy proceedings. If a spouse is named on grave deeds, would the family court have jurisdiction to have that spouse’s name removed under the inherent jurisdiction? A grave deed is the name given to a deed of grant relating to a grave. It provides that the person who is the beneficiary of the grave deed is the person who has control of the relevant grave, and allows that person to authorise matters relating to the grave, such as its reopening for further burials, the erection of memorials, and the like. The right is usually personal, but section 44 of the Cemeteries Clauses Act 1847 provides that rights of burial in a place of burial, whether granted in perpetuity or for a limited time is considered as the personal estate of the grantee, and may be assigned in their lifetime or transferred and left by will. Generally, before a burial takes place, authority is required, usually from the...

What are perpetual, irrevocable and royalty-free licences?

What are perpetual, irrevocable and royalty-free licences? Licences are sometimes expressed to be ‘perpetual’, ‘irrevocable’ or ‘royalty-free’, but those terms can be interpreted in a variety of ways. It is important to properly specify what these terms mean in each case: • ‘perpetual’ licences: clarify whether this means that the licence is ‘never-ending’ or merely of an ‘indefinite duration’ until terminated in accordance with its terms. Alternatively, specify a long fixed-term (eg 20 years) rather than having a contract of open-ended duration • ‘irrevocable’ licences: clarify whether this means that the licence cannot be revoked or terminated under any circumstances in perpetuity or that the licence cannot be revoked, other than subject to the term and termination provisions elsewhere in the agreement. There should be no potential conflict or uncertainty between the licence being expressed to be ‘irrevocable’ in one clause, and terminable in another • ‘royalty-free’ licences: clarify whether this means that no additional licence payments are due over and above specified fees identified in the...

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Question of the week: How can a trust established after 2009, with a 125-year duration and beneficiaries including the settlors' children and their descendants, be dissolved or wound up if the standard requirement is to obtain approval from all beneficiaries, considering that some beneficiaries have not yet been conceived or born and therefore cannot provide their consent?

This Q&A considers the methods termination of a trust where there are adult beneficiaries and when there are minor beneficiaries.

Question of the week: At what point does income from a trust become accumulated and capital in nature, so that payments of the same funds are capital and the beneficiary cannot claim income tax back at their marginal rate?

This Q&A considers how and when trust income becomes accumulated and capital in nature as a matter of trust law and tax law.