Random Musings From a Notary – Number Eleventeen

Random Musings From a Notary – Number Eleventeen.

Sadly there are plenty of blogs available for those who want to read about terrorism and elections and Brexit and the general horror that is the day to day news in 2017, and perhaps some of them even contain useful information.

So instead please consider this blog as a calm and stress free place where you and I can pass the time in quiet contemplation of one or two legal developments which may be of passing interest, but won’t raise the pulse unduly.

So, – squatters’ rights.

Here’s a case – link here – where the owner of a houseboat has claimed that he should be registered as the freehold owner of the part of the river his boat has floated above for the past more than twelve years. An important point here is that at low tide, the boat settles onto the riverbed.

In fact, the original application to the Land Registry Tribunal had been successful and this case is the actual Appeal, made by the Port of London, seeking to get their bit of riverbed – and river – back into its ownership.

Who knew? Not me anyway, that it would even be possible to obtain ownership of a bit of river by parking your boat, even after twelve years.

In this particular case however, the Port of London were able to persuade the Court that the claim should fail and the registration be rescinded.

Because, said the Court, to be a squatter successfully you must make your claim obvious. So, if I fence off your field and the only access to the now fenced area is a locked gate and I’ve got the only key, you can clearly see what I’m up to.

In the case of the boat, said the Court, the intention to claim the ownership of the riverbed was not made obvious. It just looked like a parked boat.

So, if you have a house boat, put a sign up. It might work, but only on a tidal river.

OK, so not a case of general application then. But interesting enough to mention, I hope?

Next up, in reference to my earlier Blog – link here – about the system of disclosure of criminal records, you may recall that as long as we have rules about disclosures [however “unfair” their application can sometime be] coupled with a requirement to apply Article 8 of the European Convention on Human Rights [called the right to privacy] there will be applications to the Court.

Basically the two laws are incompatible.

So in this month’s reported case of “P”– Link Here –, one of the applicants is a man who has two sexual offences recorded. They must, in accordance with the Rules, be disclosed on his Criminal Record to be given to his prospective employer when he applies, more than nine years later, for a job with children.

That’s the law.

But, the offences were committed when he was only thirteen. He was really just a child, with a child’s immaturity. His acts were, as the Court recognised and stated, acts which could in the most favourable light, be viewed as an “ordinary part of the process of growing up”.

So Article 8 – the “right to privacy” would say they should not be disclosed.

There is nothing in this case to suggest that matters have moved on a jot since the clash of laws was last brought before the Courts. The Judges are being asked to decide on individual cases, the law is therefore basically uncertain and contradictory.

As the Judge said, this latest case makes it clear, if it wasn’t before, that Parliament should understand that there is a problem with the operation of the scheme – of criminal records disclosure – and address it.

Until they do, the Courts will continue to be asked to deal with problems which are not problems they should be required to solve.

And finally, food for thought for the conveyancing lawyers reading this.

As you know, before completing the purchase of a registered house or registered land for a client, it is necessary to make final “searches of the Register”. The reason includes the fact that a search result will give a “priority period” – several days of grace during which no alternation can be made to the Register by anyone else and within which you can register the new title of your client.

This protects your client from, say, any chance that the seller may be a crook intending to take money from several “buyers” – sell his million pound house to twenty buyers all on the same day, then run away and let them chase his dust.

BUT, during the period protected, you need to get on and register your clients’ new property into their names.

The period of protection CANNOT be extended. You can make a new search, but if some other registration is pending to the title, and if the new search is made after the date of the other application then the new search will not extend your earlier search protection.

This means, there is a gap between purchase and registration, within which, if you are slow, a third party might get in to the title ahead of you. And the whole point of registration of a title is that you are not the legal owner of your new house, until the land registry says you are. By a completed registration.

Here is a report of a case where a buyer has fallen into the “registration gap”.– Link Here –

It seems to me that three firms of solicitors have between them, or each, made a mess of their tasks.

First of all a purchaser P paid for a transfer of land which should have reserved rights of way for the neighbour over a “shared” access, but did not. Then P’s solicitors messed about and did not get on with the job of registering that title, and in the meantime the sellers sold another plot to purchasers P2 and did grant them rights to use the accessway.

Then P2 got their title registered whilst P was dithering, within the Registration gap.

By the time P got their title registered, the rights of way of P2 were on their title.

I would be interested in knowing a bit more background to the case and its actual consequences. It seems to me that if P had actually been registered with a title which showed that no one else was able to share their accessway, this would have been something the Seller did not intend: it was the Seller’s mistake. It would have given P the right to claim money for granting the right of way to P2.

As it is, P finds himself unable to claim the benefit of what would have been a mistake anyway. Does he have a claim against anyone? Perhaps the registration gap has worked in an unusually benign way.

But no doubt some Solicitor will have pay compensation to some-one.

Plus ça change, plus c’est la même chose, innit.

Music – link here

And, as always, please remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Advertisements

Don’t do professional favours for your friends. Just Don’t, OK.

Don’t do professional favours for your friends. Just Don’t, OK.

And if I may add, as a general rule, don’t accept favours either. Certainly not from the Godfather –

“Some day, and that day may never come, I will call upon you to do a service for me. But until that day, consider this justice a gift on my daughter’s wedding day.”
— Don Corleone, The Godfather

I mean, when he puts it like that, it’s fairly clear you’ve crossed a line I think.

I wrote this Blog link here last year. As I said then, the facts of this case follow a classic chain of events which could well be the plot of a film – although thankful no horses have been harmed.

It has the trope of – man and wife M&W ask friend F for a favour. “You are an Expert Architect, could you just have a look at a quote I’ve got from a contractor it seems too high to me”

[And I wonder, when a friend asks you “Could you just”? – Why do they put it like that?

[As if they are describing the favour they are asking as a mere triviality which it would be churlish of you to refuse and is to them not really a priority in the slightest?

[When of course, what they mean is – “This is of the utmost importance to me and you are the only person in the world who can help me but I don’t want to let you know that and I certainly don’t want to pay you”.]

And F gets involved and before you know it woohoo M&W and F are no longer friends at all and there is a court case Link here about a claim for £265,000.00.

In the 2016 case judgment the Judge found that F was fully entangled in the case and that her duty of responsibility was notwithstanding that she had not been paid a penny and concluded – “However, [nothing] should discourage the parties from seeking to settle their differences. I cannot think of a more appropriate case to which mediation is suited.”

Yeah right, fat chance of that between ex-friends.

So this year F has lost her appeal, – the 2017 case report Link here seems little more than a repetition of what the Judges told her last year. Of course, the Court fees will have increased hugely.

It all boils down to – if you are approached to assist anyone, by your best friend or by a stranger, who is asking you to help because you have skill and ability which they lack, then to the extent that you do so, whether or not any contract is written, you are responsible for acting with “reasonable skill and care”. Working for nothing does not change that.

Except to the extent that it might make you loathe your former friends even more.

Of course, it is in the nature of non-psychopathic humans, to wish to help their friends.

And don’t think its only Architects who need to be on their guard.

And not only, don’t do favours. Also, Don’t assume in professional life that you can trust your friends and relax your standards.

Here is a link to a case in which a Solicitor has been ordered to pay £7,500.00 plus costs of £32,469.86. Because, he made a mistake in “lowering his guard” when acting in a new matter for a family he had acted before on several previous occasions. So, because he trusted them, he failed to be as thorough as his professional rules require, indeed he himself described his work as sloppy.

A case where no fraud actually took place. Simply where, if it had, the Solicitor’s involvement would not have revealed it or stopped it. If I may compare it to the cliché, a case where the Solicitor left the stable door unbolted. The fact that the horse stayed in the stable, is deemed to be neither here nor there.

As a general rule of thumb, if in doubt, perhaps we should always ask ourselves – what would Ted Hastings* do? – Yes, “Follow the Law to the Letter. To the Letter, Mind.

“Now we’re sucking on diesel. OK, Stand Down.”

And, as always, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

*He’s in Line Of Duty. He’s the Good Guy. So far.

Hot News from the Bolivian Consulate. Well, Sort Of.

Hot news from the Bolivian Consulate. Well, sort of.

That’s an attention grabbing way to turn off 99% of my Blog audience I’m guessing.

Certainly most of my clientele with business in South America are dealing with Brazil or Argentina, and Bolivian requirements and practice are perhaps a somewhat niche interest in Leeds.

But of course, all the more useful, if you do have interests there, to know that there is the necessary expertise here in Leeds, at AtkinsonNotary. [As, if I may say so, there is regarding all the Countries of the World]

As to the actual hot news, to begin with, you must proceed as before. Your document – contract, deed, assignment of copyright, etc., will require stamping as previously. First with the Notarial seal, in respect of my certification that you have signed in my presence. Secondly with the British Foreign and Commonwealth Apostille stamps, whereby the British Government certify and warrant that I am a properly qualified and insured Notary Public in England. And thirdly, with the stamp of the Bolivian Consulate.

I am at a loss for an actual reason for step three, mind, but step three is nevertheless essential.

And my news relates to step three.

Because now, in order to get step three achieved, your document must be translated into Spanish. And that translation Notarised. And Legalised. And submitted for Consular stamp.

So, after the English language document is signed and notarised, the translator must make a translation into Spanish, then appear before a Notary, to make a formal declaration that they have the necessary expertise to perform translation, and that document A [the Translator’s document written in Spanish] is a true translation into the Spanish Language of document B [the attached copy of your document.]

And then, that translator’s notarised certificate must also be endorsed with the Apostille stamp of the British Foreign and Commonwealth Office, and the Bolivian Consular stamp also.

Clearly the fees involved in dealing with the translation into Spanish will likely exceed the fees for the notarisation and stamping of the original substantive document.

What to do?

First, contact me, we can arrange for the necessary translations at relative short notice, or perhaps better still, do not write your original documents in English!

The Bolivians will only insist upon the translation into Spanish, in respect of non-Spanish texts.

So if you arrange to have the terms of your Bolivian documents, once agreed, translated into Spanish before you sign them, then the documents you are submitting to the Consulate are in Spanish. And no translation palaver is required.

I think this is an example of how it can save money, if individuals and companies bear in mind the Notarisation formalities and requirements of each Country in which you are doing business, as integral to the process of document preparation.

If you – as most do – go down the route of preparing the documentation in English text for signing and witnessing by a “deadline day”, and then looking around to see what legalisation process is needed thereafter, you are pretty much guaranteeing wasted time and money.

Come see us first. And that goes for anywhere, not just Bolivia!

And, as always, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com