The changes proposed by the latest Budget will largely do away with these tax allowances and will begin to impact immediately. The question to be asked is whether a taxpayer has a legitimate expectation that these allowances would be available for as long as the Government initially stated, and on the basis of which the taxpayer made the decision to invest in the property. Whelan Solicitors are aware of submissions having been made to the Department of Finance on this point and are monitoring the position.

In August 2010, DePuy Orthopaedics reported a worldwide recall of two particular types of hip replacement implants. The medical devices were recalled because as many as 15 per cent required replacement within five years. There are also concerns about certain materials used in the manufacture of the implants.

It is estimated that approximately 3,600 people received the implants in Ireland. The HSE is currently supervising a nationwide recall of persons who underwent treatment using these implants.

Whelan Solicitors advise anyone who may be affected by this issue to get legal advice as soon as possible. The Statute of Limitations affects cases such as these, so act early in order to protect yourself or your loved ones before time runs out.

For advice on this issue or any other issue concerning health or personal injury, contact John Whelan at 021-4271269, john@ whelans.info, for a free consultation.

This is not a legal interpretation. Well, it is, but only in an extremely limited and general way. If you want specific advice, come talk to us.

1.    NAMA is a deal between the Banks and the Government. Although it necessarily involves Borrowers (and indeed all citizens), the purpose is to take bad loans off the Banks so that their finances look better, they don’t crash and burn and they are able to borrow money again, which they can then lend on to people for mortgages, business loans, car loans and so on.

2.    What goes into NAMA is loans, not people. The Banks tell NAMA about their qualifying loans (over €5 million, for development purposes) and then NAMA decide whether to take them over or not. This is NAMA’s decision, not the Banks.

3.    If a Bank gave a qualifying loan for €10 million, NAMA does not pay €10 million for it. They apply a “haircut” to the loan, depending on various factors, so that the Bank will probably receive between 40% and 60% for that loan. However, NAMA can still go after the Borrower for the full €10 million.

4.    Can NAMA do anything to a Borrower that the Banks couldn’t do? Yes and no. Yes, as NAMA has more powers than the Banks in terms of property given as security (like vesting other lands, if necessary) and no, as NAMA can only go after a Borrower for money under the same terms as the Banks lent in the first place.

5.    NAMA acquires both performing and non performing loans. This may seem unfair but the purpose of NAMA is to try to recover as much money for the taxpayer as possible so it would be unfair if they were stuck with all the rotten loans.

6.    The loans to go into NAMA are spread out between Ireland, Northern Ireland, the UK, US and Europe. This means that NAMA will get in loans in, for example, London, where property prices are now on the increase.

7.    When NAMA gets in a loan, the Borrower is asked to provide a Business Plan. The indications are that if the Plan is realistic and the Borrower co-operates in making information available, then NAMA will try to work with the Borrower. If, however, the Borrower does not co-operate, NAMA will not waste any time on those loans, which will most likely proceed directly to enforcement, i.e. calling in the loan and going after the Borrower and his/her assets.

8.    NAMA must get all loans in by February 2011, in accordance with EU directions.

9.    NAMA is supposed to publish Codes of Conduct but these have not issued as at May 14 2010.

10.    If you are buying property from someone from hereon in, you should always ask if that person is a NAMA Debtor or Associated Debtor. This is because NAMA must consent to the sale in certain circumstances.

11.    Below is a link to a speech given recently by Frank Daly, Chairman of NAMA, which is worth reading.

http://www.nama.ie/Publications/2010/FrankDalyAddressLeinsSocCharAccts.pdf

The Nursing Homes Scheme Act 2009 revises the legal position in relation to these issues.  Essentially, the person requiring care contributes 80% of their income and 5% of their assets and the State makes up the balance.  The 5% can be deferred using an excellent addition to the process known as the HSE Nursing Home Loan.  Basically, once a determination has been made as to how much the State will pay towards Nursing Home costs and how much is payable by the person or their family, they can then apply for an interest free loan from the HSE.  This loan is secured against the person’s property by way of a mortgage.

One difficulty which often arises is that the person who requires care has not full mental capacity to apply for the Nursing Home Loan or to the consent to the HSE mortgage on their house or other property.  In the past, the only way around this was to have the person made a Ward of Court, which was a very cumbersome process.  Now, the person’s carer or other family member, can apply to the Circuit Court to be appointed a Carer’s Representative, and can then sign the necessary documents on the person’s behalf.

For any queries, please contact Cathal O’Sullivan on 021 4271269 or email cathal@whelans.i n f o 

More information is available from the Department of Health and Children at the following link:  http://www.dohc.ie/issues/fair_deal/guidance_full.pdf?direct=1

If you wish to enforce a valid Retention of Title clause in respect of any goods supplied by you will need to be able to provide the following evidence to a liquidator or receiver:-

1.        Copies of all invoices and signed delivery notes in relation to the outstanding balance.

2.        Copy of the terms and conditions that cover the transactions.

3.        The date on which you introduced the terms and conditions.

4.        The date on which you commenced business with the Company.

5.        Documentary evidence that the terms and conditions applied to these transactions and that the Company agreed to the said terms and conditions.

6.        Details of how your goods can be identified against those of other suppliers.

It is imperative that you ensure that you do the following:-

a. Carry out a review of your terms and conditions to ensure that it has a valid Retention of Title clause.

b  Send the  existing terms and conditions or new terms and conditions to any company you are doing business with.

c.  Ensure that the company signs and dates the terms and conditions and their agreement to be bound by them.

d. Ensure that your goods can be easily identified against those of other suppliers.

e. Ensure that all invoices are maintained.

f. When goods are delivered insist that a delivery note is signed by the company before they accept the goods.

If you require any assistance with regard to the above please let us know and we will be more than happy to advise you further in regard to reviewing your Terms and Conditions and maintaining a valid Retention of Title claim against any liquidator or receiver.

If you have any queries on this or related articles please contact us on 021 4271269

In launching the Code the Minister warned that if the Codes standards are not met and implemented countrywide he will commence Section 9 of the Intoxicating Liquor Act 2008 which imposes structural restrictions on off licensed premises.

RRAI Code of Practice

• Display of Alcohol

Alcohol products will, as far as possible, be displayed only in a part of the premises through which customers do not have to pass in order to obtain access to other beverages and food products (except where, for security reasons, such products are displayed behind the counter but not in a window).

Alcohol products will be confined to that one part of the premises and will, as far as possible, be separated from other beverages and food products.

• Advertising

In-store advertising of alcohol products is confined to the area in which they are displayed and will not be placed in windows or at internal locations where it is intended to be seen from outside the premises. Advertising materials produced by retailers will not be aimed at minors and will not seek to glamorise alcohol consumption or encourage excessive consumption.

• Sale of Alcohol

The sale of alcohol products is permitted only between 10.30am and 10.00pm on weekdays & Saturdays and between 12.30pm and 10.00pm on any Sunday or St. Patrick’s Day (sales are not permitted on Christmas Day and Good Friday).

Alcohol products will be sold only at clearly designated check-out points by persons over the age of 18 years.

Check-out points at which alcohol products are sold, or alternatively the display area, will be monitored by CCTV.

The sale of alcohol products by unsupervised self-service means is not permitted.

The sale of alcohol products on a “pay-on-delivery” basis is not permitted.

• Proof of Age

Production of a proof-of-age document will be demanded in all cases where the customer appears to be under the age of 21 years or otherwise where there there is a doubt about his or her age.

The Garda Age Card is the preferred proof-of-age document.

• Staff Training

Licence holders will ensure adequate training of staff members engaged in the sale of alcohol products and, in particular, that such staff members have an adequate knowledge and understanding of relevant areas of licensing law.

• Independent Audit

Compliance with this Code of Practice is subject to independent audit and verification on an annual basis. The Code will be up-dated from time to time.

RRAI Code Implementation

1. Display of the Code

The laminated copy of the Code sent to every participating retailer must be placed in a conspicuous space, in clear sight of every customer who visits the store.

In larger stores a number of laminated copies may need to be displayed.

The laminated copy represents the commitment of the licence holder to implement the standards of the Code and abide by its provisions. It alerts customers to the standards, which they are entitled to expect. We have provided space on each laminated copy of the Code for each store to attach a printed label with the name and address of the licence holder. It is essential that this is correctly filled in, especially in the event of a customer complaint. In addition the address and website details of the RRAI will be pre-printed on each laminated copy of the Code.

2. Display of Alcohol

Where possible the display of alcohol products should be in an area of the store that customers do not have to pass through in order to gain access to other beverages and food products. Ideally they should for security reasons where such products are displayed behind a counter, but not in a window.

In as far as possible they need to be separate from other beverages and food products.

3. Advertising of Alcohol

In-store advertising of alcohol products should be confined to the area in which alcohol products are displayed. It should not be placed in windows or at internal locations where the intention is to display the product to people outside the store. Advertising (point of sale) materials produced by retailers must not:

• Be aimed at minors.
• Seek to glamorise alcohol consumption.
• Encourage excessive consumption.

4. Sale of Alcohol

The sale of alcohol products is permitted only between 10.30am and 10.00pm on weekdays & Saturdays and between 12.30pm and 10.00pm on any Sunday or St. Patrick’s Day (sales are not permitted on Christmas Day and Good Friday).

Alcohol products will be sold only at clearly designated checkout points by persons over the age of 18 years.

Checkout points at which alcohol products are sold, or alternatively the display area, will be monitored by CCTV. The sale of alcohol products by unsupervised self-service means is not permitted.

The sale of alcohol products on a “pay-on-delivery” basis is not permitted.

5. Proof of Age

Production of a proof-of-age document must be demanded in all cases where the customer appears to be under the age of 21 years or otherwise where there may be a doubt about his or her age.

The Garda Age Card is the preferred proof-of-age document.

6. Staff Training

Store Managers and/or Licence Holders will ensure adequate training of staff members engaged in the display and sale of alcohol products and, in particular, ensure that such staff members have an adequate knowledge and understanding of the relevant areas of licensing law and of the Voluntary Code of Practice.

7. Independent Audit

A national independent audit will be carried out under the auspices of the RRAI for verification of compliance with the Voluntary Code of Practice. This audit and verification process will be carried out on an annual basis. The Code will be up-dated from time to time. The outcomes of the annual audit will be included in the independent Chairperson’s report to the Minister of Justice, Equality and Law Reform. The first report on Code compliance will be made to the Minister of Justice, Equality and Law Reform by the independent Chairperson in September 2009.

If you have any queries on this or related articles please contact us on 021 4271269

Minister for Justice, Dermot Aherne, tabled an amendment on Thursday 25 June 2009 to the Land and Conveyancing Law Reform Bill, which is currently at Committee Stage.  Mr. Aherne has decided to introduce legislation banning the practice of upwards only Rent Review Clauses in Commercial Leases.  Under the amendment, upwards only rent reviews will, in effect,  be prohibited in all new leases.  Any rent review claue in such a leae will now have to provide that the rent can go up, down or remain the same by reference to the rent immediately payable before the rent review date.

There have been a number of significant developments in the area of landlord and tenant law over the course of the last number of months.  These developments have been brought about by both changes to legislation in the area and also by decisions which have issued from the High Court.

Renunciation of Right to Renew Tenancy after 5 Years:

Pursuant to Section 47 of the Civil Law (Miscellaneous Provisions) Act 2008 a Business Tenant is now in a position to contract out of its renewal rights.  Prior to the enactment of the Civil Law (Miscellaneous Provisions) Act 2008, a business tenant automatically acquired the right to a new lease after the period of five years had expired.  Tenants could not agree with the landlord to contract out of their rights, as this would not be recognised by the law and was not, therefore, enforceable.  In many cases this left the landlord with no other option but to ensure that the tenant vacated the premises before the period of five years had expired so that they could ensure that the tenant did not gain renewal rights.  This in turn meant that many tenants would not make any significant investment in the premises that they were leasing, given that the term of their lease was inevitably for a period of less than five years.

While Business Tenants still retain the right to acquire a new lease after a period of five years has elapsed, it is now open to a landlord to negotiate with the proposed tenant, prior to signing a tenancy agreement, to see if the tenant will agree to sign a Deed of Renunciation, waiving any such rights to a new lease.  This will be sufficient to prevent the tenant from acquiring statutory rights to a new tenancy after a period of five years have elapsed, provided the tenant has received independent legal advice prior to executing the Renunciation.

It is now, therefore, open to landlords and tenants to agree commercial terms which reflect their intentions and, for example, to enter into a tenancy for a period of in excess of 5 years, or to extend any tenancy beyond the initial five year term, without worrying about the subsequent repercussions.

In respect of existing tenancy agreements, where such Renunciations have not been signed by the tenants prior to the commencement of the tenancy it would appear that it is still open to a tenant to execute a Renunciation during the course of their tenancy.  Section 47 does not specify that the Renunciation is to be signed prior to the commencement of the tenancy.  This interpretation has not, been tested by the Courts to date.

Upward Only Rent Review Clauses:

The Decision of the Master of the High Court, Edmund Holohan SC in the case of Anthony Kidney and Ronan NcNamee v Julian Charlton and Edward Charlton (Record No. 2088/657) which issued on the 22nd January 2009 has caused some concern to landlords who may have upward only rent clauses in leases of commercial buildings.

Mr. Holohan indicated that upward only rent review clauses may be set aside by the High Court and that the economic downturn ought to be considered when upward-only rent review clauses for commercial buildings were being interpreted.

Rent Review Clauses invariably provided that on the rent review date the rent shall be reviewed upwards only and in any event shall never fall below the rent that applied at the time of the review.  The Defendants in this case are seeking direction from the High Court as to the legality of such  “upward only” clauses.

Mr. Holohan said that it was a “common mistake by valuers to read an upward only cause as precluding any reduction in rent”.  He went on to say that “a Court will not be easily persuaded to accept an interpretation which clearly has the effect of unjustly enriching either party”.

Mr. Holohan said that “In the present climate, it would be well to note also that the Courts’ decision will be informed by public policy.  Even in the case in which the drafted meaning is clear and unambiguous, the device of severance of an offending clause will be employed by the Court where performance would be contrary to public policy.”

A decision of the High Court on this case is however awaited, and while Mr. Holohan’s comments are to be noted, it is not until a decision by a Judge of the High Court has issued, will the matter be clarified.

If you require any further information or advice contact us at:  021 4271269

The change will only affect new leases signed after the legislation comes into effect. The legislation is expected to come into affect in late July of this year. It has been stated that this new law cannot be applied retrospectively to existing leases.

 Mr. Aherne stated that he hoped the amendment would give a “clear signal” to the market that the existing practice of upwards only rent review clauses must change.

In relation to existing leases which have upwards only rent review clauses, please see below the decision of the Master of the High Court in the case of Anthony Kidney and Ronan McNamee -v- Julian Charlton and Edward Charlton.

To obtain a BER Certificate you will need to employ the services of a specially trained BER assessor who will issue the BER Certificate by using various calculation methods and software. 

The BER assessor will inspect the energy efficency of your building and will issue an energy rating.  The BER scale ranges from A1 being the most efficient to G, being the least efficient.  The BER assessor will also issue a report which will detail what steps can be taken by you to improve the energy performance of your building.

There is no set fee for a BER assessment and our advice would be to shop around to obtain the best price.  

*Please contact us for a list and details of some BER Assessors that you may wish to contact to obtain a quotation.

A BER Certificate is valid for up to 10 years provided that there is no material change to the building that could effect its energy performance.

Implementation Dates:

New Residential Buildings:                       

• Since 1st of January 2007 all new residential buildings for which planning permission was applied will require a BER certificate when they are offered for sale or for rent.

New Non-Residential Buildings:

• Since 1st of July 2008 BER Certificates are required for all new non-residential buildings.

Existing Buidings (residential and other buildings):

• When offered for sale or let on or after the 1st of January 2009.

For further information and advice contact us :  061 4271269

Lending Institutions are required to comply with this Code as a matter of law.  The Code does not relieve a borrower from his/her duties to repay their mortgage, however it does place certain obligations upon a lender in circumstances were mortgage repayments fall into arrears.

At present there is a moratorium on repossession proceedings being taken by the Lending Institutions within the first six months of arrears and in the case of Allied Irish Bank and Bank of Ireland this is twelve months.

If you have encountered difficulties in repaying your mortgage, we can advise you on how best to deal with your lending institution, the options available to you and also explain the duties imposed upon the lending institutions pursuant to this Code of Conduct where mortgage repayments have fallen into arrears.

For further information and advice contact us :  021 4271269

The ruling was handed down on Thursday April 16th by judges in Sweden, where a number of entertainment companies including Warner Bros, Sony Music Entertainment, EMI and Columbia Pictures were awarded damages in the amount of approximately €3million.

Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde were found guilty of breaking copyright law and were sentanced to a year in jail.

The ruling may have far reaching implications for websites such as Pirate Bay, who do not carry actual content, but host “torrent” links to TV, film and music files held on its users’ computers.  Effectively, the defence put forward by Pirate Bay was that they merely pointed interested users in the direction of their desired content.

The ruling comes at a time when more and more internet users have access to film, tv and music without payment.  While it is certainly welcome news for content producers, there is still much doubt as to whether such forms of copyright abuse can be effectively policed.

Speaking to the BBC, the chairman of industry body, the International Federation of the Phonographic Industry (IFPI), John Kennedy said the verdict sent out a clear message.  “These guys weren’t making a principled stand, they were out to line their own pockets.  There was nothing meritorious about their behaviour, it was reprehensible.  The Pirate Bay did immense harm and the damages awarded does not even get close to compensation but we never claimed it did.  There has been a perception that piracy is ok and that the music industry should just have to accept it.  This verdict will change that.” he said.

The defendants, Pirate Bay have indicated that they will appeal the decision.