 |
|
OCTOBER 2007 |
 |
|
This material will shortly be available at our web-site (www.russell-cooke.co.uk) together with an archive of past updates.
Adverse Possession and First Registration
The recent case of J.A. Pye (Oxford Ltd) and J.A. Pye (Oxford) Land Ltd V United Kingdom was a reference to the European Court of Human Rights regarding the system of adverse possession or “squatters right” that applied to all land prior to the coming into force of the Land Registration Act 2002 on 13 October 2003. A person who took possession of property belonging to another for a continuous period of 12 years would effectively obtain title to the property and could be registered as the proprietor at the Land Registry. Possession basically meaning actively exercising rights of ownership such as occupation in such a way as they are inconsistent with the actual owner on the title deeds or registered proprietor at the Land Registry The Court held that this did not conflict with the European Convention on Human Rights. It is still possible for a squatter to obtain title to land under the twelve year period specified by the Limitation Act 1980 where the twelve year period expired before the Land Registration Act came into force and the squatter is still in occupation of the land, or where the land is still unregistered. However in other circumstances the new scheme relating to squatters under the Land Registration Act 2002 provides much more protection to proprietors of land. Now, as long as the registered proprietor responds diligently to notices from the Land Registry, and taken action to evict the squatter if necessary a squatter will only obtain title if there are unusual legal circumstances that give the squatter some kind of proprietary right, or if the squatter owns adjacent land and the issue is more or less the position of the boundary to that land. Because the old rules still apply to unregistered land, charities with large tracts of unregistered land that might be squatted by encroachment from neighbouring owners or (for example) by travellers are well advised to apply for voluntary first registration. Apart from giving better rights against claims from squatters, first registration can be used to sort our problems with the title that might delay or frustrate dealings with the land. Since under the new scheme the registered proprietor’s protection depends to some extent on responding to notices from the Land Registry, it is essential that the Land Registry is kept up to date with changes in the contact details of the organisation, the Land Registry accepting up to three postal or email addresses for each registered proprietor. For further information, please contact:
Ex gratia payments and settling employment claims
Trustees are often concerned when settling an employment dispute with a payment that they may be breaching the Charities Act which prevents a charity making an ex gratia payment without getting it previously cleared by the Charity Commission. Generally this concern is misplaced. For trustees who still remain anxious about the payments, it is possible to approach the Commission for formal advice under Section 29 of the Charities Act. Where trustees follow such advice which is given under that provision, they will be free from any risk of a claim for breach of trust. It is important to realise that it is only advice formally given under Section 29 that provides this protection. The normal written advice given by the Commission, while obviously very helpful, does not provide legal protection. A second concern is whether, as payments made in such settlement will not generally be “ex gratia”, the charity has a power to make the payment. In most cases even if you are making a payment above the statutory entitlement, it is not necessary to get a particular consent for ex gratia payments which is required under Section 27 of the Charities Act. For charities which are companies, the wide general powers of management contained in most memorandum and articles of association will be taken to include a power to compromise. For unincorporated charities there are powers to compromise under Section 15 of the Trustee Act 1925. For those few trustees who find that they still do not have a power to enter into a compromise, it is possible to ask the Commission to make an order under Section 26 authorising a compromise. Where the charity feels it is necessary to go to the Commission, they will need to persuade the Commission that the proposed compromise agreement is reasonable and it is expedient for the charity to pursue it. In summary, if on professional advice, trustees think a particular settlement, even if it is relatively generous, is sensible and in the best interests of the charity, the Charity Commission will generally not wish to get involved. Charities which are also housing associations have to comply with additional rules. For further information, please contact:
Employment Status of Clergy
Religious bodies will be advised to assume that their ministers hold employment contracts if the terms of their ministry are not inconsistent with employment status following the case of New Testament Church of God v Stewart . The Court of Appeal considered the status of a Pastor who while not holding an employment contract had a document described as “minutes” that included matters such as levels of stipend, pension plans and disciplinary procedures. When his Pastorhood was terminated he claimed unfair dismissal. The Court held that there was no longer a presumption that there was no intention to create a legally binding relationship between a minister and his church though if there was a religious belief that there was no enforceable contractual relationship, this would be a factor to consider. In this case the finding of employment was made. New Testament Church of God v Stewart [2007] EWCA Civ 1004
Where 20 or more employees are proposed as redundant the collective redundancy consultation requirements contained in Section 188 Trade and Labour Relations (Consolidation) Act 1992 apply. It has been accepted that an employer is not required to consult on the business reasons for making redundancies but only on the redundancy proposal themselves. However in a case involving a proposal to close a coalmine, the Employment Appeal Tribunal has held that the obligation to consult over avoiding proposed redundancies inevitably involved engaging with the reasons for the dismissals which in turn required consultation over the reasons for the closure. The case appears to significantly extend the consultation obligations upon employers and advice should be sought. UK Coal Mining Limited v (1) National Union of Mine Workers (Northumberland Area) (2) The British Association of Colliery Management (2007) EAT/0397/06/RN and EAT/0141/RN Dismissal for incapacity The case of McAdie v The Royal Bank of Scotland Plc concerned an employee who following a transfer to another branch was signed off work on extended sick leave. After more than a year of absence the employee confirmed several times at a meeting that she was not able to consider any form of return to work and was subsequently dismissed. The Employment Appeals Tribunal overturned a finding of unfair dismissal and held that the bank’s responsibility for the employee’s ill health did not automatically render the dismissal unfair i.e. beyond the range of reasonable responses in view of the situation it found itself in. However the Employment Appeals Tribunal pointed out and the Court of Appeal accepted that where an employee is incapacitated by the employer’s own conduct it may be necessary to go the “extra mile” in finding alternative employment for the employee or to put up with a longer period of sickness absence than would otherwise be reasonable. McAdie v Royal Bank of Scotland Plc, CA Third party pressure to dismiss Organisations not infrequently find themselves in a position where a third party, commonly a funder, exerts pressure to remove a particular member of staff from a project. In the case of Greenwood v Whiteghyll Plastics Limited the EAT had to consider the Employment Tribunal’s finding that the dismissal of an employee following complaints by one of the employer’s major customers rendered the dismissal fair as “some other substantial reason” within the Employment Rights Act 1996. The EAT considered a Court of Appeal authority that had stated that in such circumstances consideration of whether there will be injustice to the employee and the extent of that injustice will be an important factor. The court had stated that the employer in such circumstances would usually be expected to consider the employee’s length of service, his work record and the difficulties he might fact in obtaining alternative employment before the decision to dismiss. The EAT accepted the employee’s submission that the employer had not given the extent of the injustice the employee had suffered any consideration and on this basis submitted the case to another Employment Tribunal for further consideration. The case highlights the fact that it will not be safe to plead third party pressure to dismiss and an organisation finding itself in this position should always consider redeployment which might even involve restructuring in order to avoid an injustice. Greenwood v Whiteghyll Plastics Ltd, EAT For further information, please contact:
ANNOUNCEMENT
Please note that Russell-Cooke converted to a limited liability partnership (“LLP”) on 1 July 2007. The change does not affect the service provided to clients who will continue to work with the same lawyers as at present. If you have any queries about the conversion please contact the lawyer you usually deal with. Further details are available at: http://www.russell-cooke.co.uk/serv_c&o_charities.htm
EVENTS
We are currently booking places for the upcoming seminar dealing with the need for valuation advice before disposing of charity land. This seminar takes place on Wednesday 28 November 2007 and will give guidance to surveyors and property managers on the constraints imposed by charity law on certain types of property transactions. For details and a full list of forthcoming events see the Charity Team’s web-site at:
OTHER EVENTS:For a full list of forthcoming events see the Charity Team’s web-site at: The Charity Team Tel: 020 8789 9111
This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.
Copyright: Russell-Cooke, October 2007 To subscribe to this monthly legal update please visit http://www.russell-cooke.co.uk/serv_charities_intro.htm and fill in the online request form, or send an email including your name and email to, charitylegalupdates@russell-cooke.co.uk An archive of past updates can be found at http://www.russell-cooke.co.uk/serv_charities_updates.htm
If you would rather not receive emails from Russell-Cooke you can unsubscribe by clicking here. |