Broomhead & Saul Launches Property Possessions Claims Service

Somerset law firm Broomhead & Saul has today announced the launch of a new service for residential landlords across the region.

Given the economic climate, landlords are increasingly finding that tenants can fall behind with their rent; in some instances, this may only be temporary and an informal discussion will resolve matters; but in other cases or if issues persist, a landlord may decide to seek to take back their property via a possession order, through the courts.

Broomhead & Saul are now able to offer this service, covering advice and initial support through to securing an order for possession and dealing with enforcement, physically taking back the property, alongside the relevant agencies.

There may also be occasions where other issues have arisen, which are either a breach of the tenancy or which otherwise justifiably lead to the property owner wishing to regain what in some cases will be their former home, where partners have moved in together, for example.

Initial advice covers the options available and an idea of timescale from initial instructions to securing an order, to obtaining possession itself.

Do contact us to discuss your requirements, if you are facing difficulties with a tenant or are seeking advice related to investment properties and tenant issues.

Help to Buy Scheme

The Chancellor said the scheme will be available to everyone who wants to buy a home, old or new, under the Help to Buy scheme from 2014.

He will help people get on or move up the property ladder by offering Government “mortgage guarantees” totalling £130 billion. Prospective buyers would contribute 5 per cent of the value of the property and the Government will guarantee another 15 per cent.

This will mean people can afford a bigger mortgage with a small deposit. Effectively, the buyer would be getting a 95 per cent mortgage where the bank might currently only have lent them 80 per cent of the value of the property.

Many people have struggled to save up enough since banks scrapped their best mortgage lending deals after the financial crisis.


In a separate part of the initiative, the Government will offer interest-free loans for five years if people want to buy new-build homes.

The loans will be worth up to 20 per cent of the value of a newly built homes, with the buyer contributing 5 per cent as a deposit.

They will be available to anyone who wants to buy a new-built home worth up to £600,000 and repaid only when the property is sold.

The Help-to-Buy schemes will support millions of people who currently cannot afford deposits to buy a new home, as long as they pass credit checks.

Previous schemes have only helped first time buyers and those with an income of less than £60,000.


The Minefield of Joint ownership – getting it right

The recent cases of Stack v Dowden and Jones v Kernott have introduced a large degree of uncertainty to joint ownership which has far reaching implications for property owners.

These cases make this area a potential litigation minefield.  We are able to advise our clients to ensure that they are aware of the potential consequences of not making a declaration of trust at the time of acquisition. Many of our clients may not want details of their interests in the property to be be a matter of public record (by using the Land Registry forms on purchase for example).  If our clients wish these details to remain confidential we may advise our clients to make a separate declaration of trust.  There are many traps for the unwary and it is best to avoid litigation, costs and personal conflict by getting it right in the first place.  That is what Broomhead and Saul prides itself in doing.

The Legal Bit – It is complicated, so we have broken it down to assist digestion!

Where a property is purchased in joint names, the parties will hold the ‘legal estate’ as joint tenants and the ‘beneficial interest’ in the property as either ‘joint tenants’ or ‘tenants in common’. Joint tenants are entitled to the property equally, whereas tenants in common are able to hold the property in either equal or unequal shares. An example of tenants in common is that Mr X and Ms Y hold the property on trust, 60% as to Mr A and 40% for Ms B.

Most disputes in this area occur where things go wrong between unmarried co-habitees, but such disputes can also arise between family members, friends or business partners who purchase property together.

An express declaration of trust may help to avoid disputes in the case of death, relationship breakdown or sale of the property, as it is generally conclusive as to the parties’ respective interests in the property. The declaration can be made using a Land Registry form or a separate trust document.

If the owners expressly declare themselves to be ‘joint tenants’ and the property is subsequently sold, the assets will be divided between the parties in equal shares. If the owners are ‘tenants in common’ and expressly declare the shares in which they hold the property, the proceeds of sale will be divided in those proportions.

Most problems arise if an express declaration of trust is not made. It can be extremely difficult to determine the share in the property that each party is entitled to if their individual interests are not recorded at the time of acquisition. Where a property is purchased in joint names and there is no express declaration of trust, the general presumption is that the parties hold the property as joint tenants. However, there is considerable uncertainty in this area of the law due to the effect of recent cases.

In a case called Stack v Dowden, where no express declaration of trust had been made, the parties will be presumed to be ‘joint tenants’ and entitled to equal shares in the property unless one party can show that the property was intended to be held differently.*  A wide range of factors can be taken into account to show this but it will only be in exceptional or unusual cases that a court will be persuaded that the parties intended something other than equal shares.

In a case called Jones v Kernott, they added that if it could be shown that the parties had intended to hold the property in separate shares, but that it was not possible to determine the size of the shares they had intended each to have, then the court would have to decide what was fair based on the whole course of dealing between the parties in relation to the property.

Conclusion – All very messy if an express declaration is not made.  Please contact our Property team to assist.

[*Note: This presumption of entitlement to equal shares does not apply to commercial property or to property purchased as an investment.  In such cases, in the absence of any relevant discussions or agreements between the parties that show they intended otherwise, their beneficial shares will reflect the size of their contributions.]

Is the National Planning Policy Framework Still Pro-Growth? Our Property Team Explore the issue.


The final draft of the national planning policy framework (NPPF) was published on 27 March 2012


Taking immediate effect.


The final NPPF has addressed some of the criticism it attracted from conservation bodies and now includes a revised definition of sustainable development. Increased emphasis on environmental considerations inevitably renders the NPPF less ‘pro-growth’ than it was in its draft form. It aims to reduce bureaucracy in the planning system by improving clarity, to give developers better outcomes through greater certainty, reducing costs and burdens, improving efficiency for businesses and promoting sustainable economic growth, and handing power back to local communities


The NPPF makes significant changes to the planning system in England, by replacing 1,300 pages of planning policy statements, circulars and guidance documents with a ‘single and accessible’ document of 50 pages.


Claims that the NPPF will lead to greater certainty could be misleading. The streamlined, less-detailed version of the NPPF could create uncertainty for developers, as the local planning authorities (LPA’s) have more discretion in interpreting and implementing the policy in their local development plan documents. It may also prompt the need for more detailed development plans or pressure to make planning policy through Ministerial Statements.



The new presumption in favor of sustainable development states that LPA’s should plan positively for new development, and ‘approve all individual proposals wherever possible’. The presumption comes into effect where the neighborhood and/or local plan is absent, silent, indeterminate or where relevant policies are out of date. Any proposal which can be shown to comply with the definition of sustainable development contained within the draft NPPF is eligible for consent.

 This is a ‘pro-growth’ presumption, speeding-up planning application decisions and encouraging LPA’s to have up-to-date plans in place. However, there are fears that the presumption could result in LPA’s consenting to low quality development, particularly where there is pressure from budget cuts to capture funds.

There are three main aims of the concept.  An economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time etc.  A social role – supporting strong, vibrant and healthy communities, by providing the supply of housing, services, etc.  An environmental role – contributing to protecting and enhancing our natural, built and historic environment.

Campaign groups previously warned that the wording of the draft presumption in favor of sustainable development would open up the floodgates to development that was harmful to the environment, placing economic growth as the driver and undermining the principles of sustainable development.   This has let to the final form of the definition being revised and now refers to the five principles contained in the 2005 UK Sustainable Development Strategy: living within the planet’s environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly.

Feedback from planning campaigning bodies such as the Campaign to Protect Rural England shows that they are generally reassured by its compromises from the draft form.


“The thousands of pages of planning policy may have been replaced with 50 or so but there are inevitably some pretty vague concepts that have replaced the detail.   This could lead to uncertainty with different LPA’s interpreting the legislation in very different ways with very different results.  Is not surprising that Developers and Campaigners seem equally unsure as to whether to be happy or unhappy with the legislation at this stage.  Time will tell but the changes are likely to have have a dramatic impact on us all.”  If you need advice on this planning issue or any other property matter please contact any of our experienced property lawyers at Broomhead and Saul.

Broomhead and Saul Awarded Coveted Law Society Quality Conveyancing Accreditation!


Quality - Broomhead and Saul

Conveyancing Quality Scheme


“We are very proud to become one of the first firms in Somerset to become a firm recognised by the Law Society for the high quality of the service we provide and I am very prod of the property teams at the Taunton and Ilminster offices.”

The Conveyancing Quality Scheme (CQS) will provides a recognised quality standard for residential conveyancing practices. Achievement of membership establishes a level of credibility for member firms with stakeholders (regulators, lenders, insurers and consumers) based upon:

  • the integrity of the Senior Responsible Officer and other key conveyancing staff.
  • the firm’s adherence to good practice management standards.
  • adherence to prudent and efficient conveyancing procedures through the scheme protocol.

This scheme will create a trusted community which will deter fraud – year on year we will drive up standards.

To discuss any of your property needs or requirements, please do not hesitate to contact John or any one of the members of our experienced property team.

Illegally Subletting Council Property Could Land You Inside

The Issue?

With about 1.8 million families with a genuine need for housing are currently on waiting lists for social housing in England and Wales, some of which are deprived of a home by people subletting their council property for profit.

Government’s Proposed Solution?

The government has proposed a new criminal offence of tenancy fraud to deal with the increasing trend of people earning thousands of pounds subletting council property at market rents, and cheating tenants. The proposal is that the offence will be punishable by fines of up to £50,000 and/or imprisonment of up to two years.

Difficulties are Expected…..

There are doubts, however, about whether the proposals could be effectively enforced if they become law as the success of any changes is likely to hinge on a number of factors – such as how effectively the offence will be policed and whether there will be the resources within social landlords (ie. Housing associations, Local Authorities) to take proper advantage of the changes.  Proving subletting can be very difficult, costly and time-consuming. However, part of the proposals are to give local authorities better powers to investigate tenancy fraud, in particular, better access to information from banks and utility companies. This may help, although a lot of tenants who are subletting are clued up enough to keep all of the bills registered in their name, to refuse unannounced visits from the landlord and to make sure they are present at any pre-arranged appointment.  This means that Landlords will still face real problems in obtaining sufficient evidence of the subletting – particularly because they will have to prove it to the criminal standard of proof.   Additionally for landlords, civil proceedings (rather than criminal) may be a more attractive route than the prospect of criminal proceedings. The main priority for landlords will often be to get the property back so it can be re-let. However, as Checkley points out, criminal proceedings will not achieve that.


In theory, the proposals sound like great news for landlords.  In practice, enforcing any such order made by the court can prove impossible if the tenant does not have the ability to pay it.  If the changes are introduced, local authorities will be likely to be given the power to prosecute offences themselves and other social landlords could also theoretically bring private prosecutions.

We may be instructed to deal with the proceedings on behalf of clients. The question will be whether to opt for possession proceedings, criminal proceedings, or both.  That decision will depend on what the client wants to achieve.  Please contact our Property Department if you have any questions.