Archive for the ‘General Advice’ Category
In a previous article in the Newbury Business News, Paul Trincas, a corporate lawyer with Charles Lucas & Marshall wrote about how businesses could secure payment of debts and the types of enforcement mechanisms available. Here, he turns his attention to what is probably the most effective and secure method of ensuring debts are paid – charging orders.
What is a ‘Charging Order’?
A Charging Order is an Order of the Court charging a person’s interest in a property or properties, for the amount of the debt owed. It is therefore a type of security, like a mortgage, for the sum owed.
If a debtor ‘agrees’ to a charge over their interest in any property or properties they own, in respect of debts owed, then this can be achieved by lodging the relevant form with the Land Registry. However, this procedure is dependent upon the debtor agreeing to this being undertaken and in almost 99 per cent of cases, such agreement will not be forthcoming. In which event, a Charging Order will need to be applied for through the courts.
Who can apply for a Charging Order?
Anyone owed money can apply to the court for a Charging Order. However, a Charging Order cannot be applied for unless a judgment for the sum owed is first obtained against the debtor. Further the debt owed must be £1,000 or more.
Therefore, the person owed money must first go through the court system and obtain a judgment, and then, on the back of the judgment being obtained, a Charging Order can be applied for.
What is charged?
Only the debtor’s ‘interest’ in the property or properties can be charged. So, for example, if a husband and wife jointly own property in equal shares, then it is only the debtor’s 50 per cent interest in the property that can be charged.
When is payment made under a Charging Order?
Although a Charging Order on a property secures the amount owed, this does not mean that the monies owed will be paid immediately.
Generally, there are three trigger points when the sum secured by way of Charging Order, will be paid. They are:
- If the debtor dies, provided he/she is the sole owner.
- When the property is sold.
- If the person who has the benefit of a Charging Order applies to the court for an Order for Sale of the property.
Under the first two, it may be years before these trigger points are reached. However, the person owed money will be entitled to interest on the initial sum charged, currently, at 8 per cent per annum, from the date the Charging Order is made.
Under the final trigger point, the courts will generally only order a sale of the property if the amount of the debt is large.
For more information please contact Paul Trincas on 01635 521212 or email@example.com.
Small businesses are generally defined as family businesses or businesses which are owned and managed by a single individual or by a small group of people. Rupert Wright, corporate services lawyer with Charles Lucas & Marshall, provides some pointers for buyers and sellers.
Due Diligence. The small business may not have the time or resources to do a detailed due diligence exercise into the business it is buying. In practice, an accountant often needs to be involved to check accounting issues. However, the due diligence process includes checking supply contracts, the existence of litigation or disputes and employee issues.
Tax issues. Stamp Duty and VAT will need to be checked. In particular, VAT is not charged on assets sold as part of the transfer of a going concern. However, both the seller and the buyer must be registered for VAT purposes.
Stock and work-in-progress. Both parties must agree the value of the stock. The simplest course of action is for the parties to agree on an expert valuer to carry out the stock valuation. The most usual formula is for the valuation to be at the lower of cost and net realisable value.
Business Contracts. The parties need to consider what action needs to be taken to transfer business contracts to the buyer. To the extent that the buyer wants to have the benefit of a contract, this can be assigned to him by the seller. The ideal solution for the seller is to seek to have contracts novated.
Computer Contracts. Most small businesses are dependent on computers for their day to day operation. Computer hardware is frequently leased rather than acquired outright. Software can also pose contractual issues which need to be dealt with. Also, the transfer of the rights in a website to the buyer need to be considered.
Restrictive covenants. The buyer normally needs to have a restrictive covenant to prevent the seller opening a competing business or poaching valuable customers or staff. The timescales for such restrictive covenants would need to be considered and generally two years is a sensible time period.
Employee rights. The rights of employees are governed by the TUPE rules which provide that Contracts of Employment of employees are automatically transferred to the buyer.
Warranties and Vendor protection. The buyer should seek reasonable warranties from the seller. Sellers should ensure that they have protection from potential claims, particularly as to the amount that can be claimed. Also, buyers should seek specific indemnities on key matters.
In summary, it is essential for both sellers and buyers of small businesses to involve a specialist business lawyer to assist with the asset purchase agreement required.
For further information contact Rupert Wright on 01635 521212 or firstname.lastname@example.org