Meet our new Real Estate Partner

The Freeth Cartwright office in Manchester recently welcomed new Real Estate Partner Alaisdhair MacPhie at the beginning of October. We did a quick Q&A with Alaisdhair to get to know a little more about him.

Where did you study law?

At the College of Law Chester after reading history at Cambridge.

Where were you before joining Freeth Cartwright?

Hill Dickinson Manchester office.

What sort of property law do you carry out?

I have carried out development work for developers and landowners and acted in property investment for property investors and occupiers. I also carry out landlord and tenant work for both landlords and tenants.

Have you always worked in property law?

Yes exclusively for the last fifteen years but before that I combined it with some corporate law and other commercial work.

If you weren’t a lawyer what would you have been?

Had I stayed with history I would have probably ended up in the academic world or the teaching profession.

What’s the best thing about your job?

Combining dry technical areas with the real world and making the outcome successful for the client.

What’s the most exciting case/deal you have worked on?

I was involved in the redevelopment of a sporting stadium into a leisure scheme which involved a local authority , an institutional investor, a developer and several land owners. My clients held a significant intermediate leasehold interest at the centre of it. I had to negotiate between a sophisticated institutional investor at one end and small occupiers at the bottom. In the end we managed to do it after a lot of hard work and negotiation which was exhausting but very satisfying!

How can we contact you?

Please feel free to contact me at alaisdhair.macphie@freethcartwright.co.uk

See Alaisdhair’s website profile here:

http://www.freethcartwright.co.uk/person/alaisdhair-macphie

Alaisdhair Macphie small

Alaisdhair MacPhie

Real Estate Manchester

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Landlords Still Demystifying the Tenancy Deposit Scheme – Superstrike Ltd v Rodrigues

A recent Court of Appeal case brought back into the limelight the issue of tenancy deposit schemes. The decision highlights an issue that landlords may not have fully appreciated but that could have a significant impact across substantial and long-established residential property portfolios.

When Superstrike took Rodrigues to court in June, the Court ruled that Superstrike was unable to recover possession under the Housing Act 1988 s.21 because it had failed to protect the tenant’s deposit. The particular issue in this case was that Rodrigues had been granted a one-year assured shorthold tenancy before the tenancy deposit protection scheme came into force in April 2007, but actually continued to live at the property until 2011, when Superstrike served a notice requiring possession of the flat.

umbrella, coins, protecting money, investment

The question was whether Superstrike was entitled to a possession order, even though it had not protected Rodrigues’ outstanding deposit in accordance with the new statutory scheme. Rodrigues contended that Superstrike was obliged to protect the deposit within 14 days of him becoming a tenant under the new statutory tenancy that had come into effect on the expiry of the initial one-year term.

Superstrike argued that as the deposit was received prior to the introduction of the deposit protection scheme, to require landlords seeking possession to make these additional arrangements would be unreasonable. The Court disagreed.

This case highlights the importance of landlords and tenants alike being aware of their rights and obligations when it comes to deposits and the legal consequences of a tenant remaining in occupation of premises beyond the period stated in the agreement.

Landlords should review their portfolios and pay any ‘rolled over’ deposits into a tenancy deposit scheme where they have tenants who occupy under ASTs granted before 6 April 2007 and who have stayed put after the expiry of the initial fixed term, in order to preserve their right to regain possession.

If you have any comments on the above or require any legal advice on any other property matters, then please feel free to contact Richard Holmes on richard.holmes@freethcartwright.co.uk

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Richard Holmes

Manchester Real Estate

Freeth Cartwright wins appeal against fine issued to “spam” texting firm

Christopher Niebel v Information Commissioner – 14 October 2013

We have just succeeded in an appeal to the Information Rights Tribunal against a fine of £300,000 issued by the Information Commissioner against one of our clients for a breach of the Privacy and Electronic Communications Regulations (PECR).

PECR governs the way in which text marketing messages can be sent. The fine was the first of its kind for a breach of PECR and it had been issued for texts that were alleged to have breached the regulations.

Key to the outcome of the appeal was whether the contents of the texts sent were of a kind that was likely to cause “substantial damage” or “substantial distress” to the people who received them. The Tribunal found that whilst it was possible that texts of this kind could lead to recipients incurring charges for texting STOP or receiving texts abroad they were unlikely to cause substantial damage. In giving its reasons why it found no likelihood of substantial damage the Tribunal said “it takes a very short time indeed to give a tut of irritation and delete spam messages such as these”.

Similarly the Tribunal found that the texts were not likely to cause substantial distress. In making its decision the Tribunal stated “Almost all mobile phone users, in our judgement, will recognise these texts for what they are”.

I think this is a sensible judgment from the Tribunal.  People may find texts like these mildly irritating but it is another thing altogether to say they caused substantial damage or distress. In this case the contravention was in respect of only 286 texts yet the Information Commissioner issued a fine of £300,000.

I would welcome your views?

To read the judgment click here:http://www.informationtribunal.gov.uk/Public/search.aspx

For more information on whether “spam” texts are legal see my previous blog post:

https://freethsmanchesterbusinessblog.wordpress.com/2013/05/17/spam-texting-is-it-legal/

Protected conversations- just how “protected” are they??

Computer Security

In the recent raft of Employment law reforms, it is perhaps the introduction of the so-called “protected conversation” that has been most eagerly received by employers. The general idea is that an employer will now be able to have an honest conversation with an employee about performance issues and, in some instances, a possible departure from the company, without worrying that the conversation could be referred to if the matter ever ended up in a tribunal. This goes beyond the current “without prejudice” rules which require a dispute to exist between the parties for discussions to be inadmissible in future proceedings.

The idea behind the legislation makes a lot of sense. There are certainly occasions where an employment relationship has broken down and a protected conversation seemingly allows both parties to be more frank in exploring the issues and potentially agree on an exit (usually via a settlement agreement). If they are carried out properly, employees will not be able to subsequently rely on the conversations as evidence to support a constructive dismissal claim.

However, employers should still treat these conversations with caution, particularly in these early days of the new regime. Firstly, the cloak of confidentiality only applies to “ordinary” unfair dismissal proceedings. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing), or any other claim such as discrimination or breach of contract, the protection will not apply and then conversation will be admissible. Similarly, if an employee alleges that any improper behaviour occurred during the conversation, a tribunal will ask for the contents of the discussion to be disclosed. It is not completely clear yet what constitutes “improper” behaviour. Certainly pinning an employee to the wall and telling them there days are numbered will put the conversation firmly in the “improper” category. However, ACAS guidance suggests “improper behaviour” will also extend to undue pressure, discriminatory comments and all forms of victimisation.

Critically, the employee only has to make an allegation of, say, whistleblowing, discrimination or improper behaviour and a tribunal will ask to hear details of what was supposedly a “protected” conversation.

These limitations to protected conversations are the Government’s response to justified criticisms that the original plans for blanket secrecy would create a “bully’s charter”.  It is therefore understandable that the final version had to be diluted. Employers just need to bear this dilution in mind when holding protected conversations and be aware that they don’t come with absolute guarantees of inadmissibility. As long as they do that, employers should still welcome the conversations as a chance to have candid, grown-up and professional conversations where both sides can either sort out their differences or decide to go their separate ways.