Year: 2020

We wish to extend our warmest thanks to our clients, colleagues, staff and friends who contributed so generously to the recent sleep-out by our partners Jerome O’Sullivan, David Pearson and John Fuller as part of the Focus Ireland Shine a Light Campaign. Having set a target to raise €5,000 we were simply overwhelmed by the flood of donations which has yielded in excess of €18,000. This is a testament to your appreciation of the tremendous work being done by Focus Ireland to combat homelessness in Ireland.

We also wish to sincerely thank Christine Moloney and her team at St. Peter’s Church for allowing us to do the sleep-out on the grounds of St. Peter’s.

On Friday 16^th October, Jerome O’Sullivan, David Pearson and John Fuller (Team JWOD) will be leaving the comfort of our beds for one night to sleep-out in the grounds of St Peter’s Church, North Main Street, Cork on Shine a Light Night to support people experiencing homelessness and raise vital funds for Focus Ireland. Whilst you are tucked up in bed, we will be sleeping on cardboard battling Ireland’s cold and possibly wet weather with just a sleeping bag and a cup of soup. We greatly appreciate the generosity of the team at St Peters Church in facilitating us on their grounds

The Covid-19 pandemic has been a huge challenge for us all, and it has been particularly challenging for the many men, women, families and children who are homelessness or at risk of homelessness. Focus Ireland relies heavily on support from business leaders on Shine a Light Night to raise vital funds for their work, and we need to support them now more than ever.

People experiencing homelessness are among the most vulnerable in society and Focus Ireland have seen a 49% increase in the demand for their services throughout the pandemic. People experiencing homelessness are more likely to have an underlying health issue and are unable to follow basic COVID-19 recommendations to stay at home and keep socially distant from other people.

We were shocked to realise that there are over 8,728 people homeless in Ireland and over 2,650 are children. We have signed up to host a virtual sleep-out so we as individuals and J W O’Donovan can play our part in helping Focus Ireland provide vital prevention services and change people’s lives. Focus Ireland believe that homelessness can be ended and work to break the cycle of homelessness by giving people access to information, housing, childcare and a range of education services throughout Dublin, Cork, Kilkenny, Limerick, Sligo, Waterford, Clare and Wexford.

As a valued client we are now asking for your help. You can help to end and prevent homelessness in Ireland by sponsoring me to take part in the virtual sleep-out. We have committed to raise €15,000 by 16^th October, so please demonstrate your solidarity by sponsoring Team JWOD today.

To sponsor us, go to our fundraising page or send a cheque to us made payable to ‘Focus Ireland.’

Please give what you can as every donation is greatly appreciated; together we can help to change the homeless landscape across Ireland and be a part of the difference in people’s lives.

Kind Regards

JW O’Donovan LLP

 

The Government has published a Code of Conduct between Landlords and Tenants for Commercial Rents as a response to the impact of COVID-19 on the economy and the resulting difficulties experienced by many businesses in meeting their lease obligations in rented property.  This Code of Conduct appears to be very similar to the Code of Practice for Commercial Property Relationships during the COVID-19 Pandemic published by the UK Government in June.

Why have a Code of Conduct and what will it achieve?

The stated intention of the Code is to “promote and reinforce good practice in landlord and tenant relationships as they deal with income shocks caused by the pandemic”.  It is important to note that it is a voluntary code with no statutory basis.  Landlords and tenants both remain obliged to comply with the contractual obligations in the relevant leases and the underlying principles of Landlord and Tenant law.  In theory therefore, both parties can choose to ignore the Code, and landlords in particular are not prevented from pursuing debt recovery, ejectment and other proceedings where tenants have not complied in full with lease obligations.  It is likely however that when any such proceedings come before the courts, regard may be had to the extent to which either or both parties acted in accordance with the Code.  For example, a landlord seeking an ejectment order against a tenant may find that the court allows the tenant some leniency in the form of additional time to meet its obligations in circumstances where the landlord has not engaged with the tenant as envisaged by the Code.

What is in the Code?

In many respects, the principles outlined in the Code could be considered to reflect a “common sense” approach to negotiations between landlords and tenants.  Commercial landlords recognise that it is not to their benefit that the business of their tenants should fail, so there is a mutual interest in agreeing revised terms that work for both parties.

Some of the principles outlined in the Code are as follows:

• • Tenants who are in a position to pay in full should do so.
  • Landlords should provide assistance to a tenant where reasonably possible having regard to their own financial responsibilities.
  • It is recognised that landlords may be constrained by their own financial obligations, and any concessions to tenants would require the consent of lenders.
  • Both parties should act reasonably swiftly, transparently and in good faith in order to identify and implement mutually beneficial solutions.
  • Alternative dispute resolution mechanisms should be used if necessary.

The Code suggests a number of possible arrangements that might be availed of and many of these, such as rent-free periods, rent deferrals, rent variations and turnover rents, are already being implemented in many landlord and tenant arrangements.

The Code recognises that service and insurance charges arrangements are not profit-making, and such charges need to be paid in full, although landlords are encouraged to take measures to reduce such charges wherever possible, and also to vary payment arrangements if possible to aid tenant cashflow.

Will the Code have any effect?

It remains to be seen whether the publication of this Code will have any material impact on dealings between landlords and tenants.  Most landlords have already recognised that many of their tenants need assistance to survive and it is likely that that this commercial reality will continue to be the greater influencing factor.

Link to the Code: https://dbei.gov.ie/en/Publications/Code-of-Conduct-between-Landlords-and-Tenants-for-Commercial-Rents.html

For further information on this topic, please contact Jerome O’Sullivan (josullivan@jwod.ie) or Ciara McDonnell (cmcdonnell@jwod.ie)

The Residential Tenancies and Valuation Act 2020 (the Act) was enacted on 1 August 2020. The Act was introduced in response to the difficulties encountered by both landlords and tenants of residential properties during the Covid-19 crisis and aims to balance the conflicting rights of both parties during these times. 

The Act alters the position previously introduced under the Emergency Measures in the Public Interest Act 2020, which created a blanket ban on evictions and rent increases during the emergency period from 27 March 2020 to 1 August 2020. While the prohibition on rent increases is provided for in the new Act, the blank ban on terminating tenancies is not and landlords can now terminate a tenancy from the 10 August 2020 where they have followed all procedures to do so. 

Protection for ‘Relevant Persons’: 

The Act introduces a system where certain tenants who qualify as ‘relevant persons’ under the Act will be protected from evictions and rent increases while landlords will have the right to enforce such rights in respect of other tenants who do not qualify as a ‘relevant person’.

Section 4(6) of the Act defines a ‘relevant person’ as a person who is not able to comply with his or her obligations to pay the rent due by reason of them receiving or having received the Temporary Wage Subsidy, supplementary welfare allowance or any other payment out of public moneys paid for the purpose of alleviating financial hardship resulting from the loss of employment during the Covid-19 crisis. 

To receive protection under the Act as a ‘relevant person’ such persons must notify both the Residential Tenancies Board and their landlord that there is a significant risk that their landlord will terminate their tenancy as a result of non-payment of rent. They will then be protected from evictions and rent increases during the new ‘emergency period’ and will be entitled to receive advice and support from the Residential Tenancies Board. The ‘emergency period’ commenced on 1 August 2020 and will last until 10 January 2021. 

Increased Notice Periods: 

Section 5 of the Act provides that any notice of termination served on a ‘relevant person’ for non-payment of rent during the emergency period must provide for a 90-day notice period. It further prohibits landlords serving a notice of termination on a tenant where the termination date falls earlier than 11 January 2021. 

In addition to this increased notice period, Section 12 of the Act requires landlords to notify their tenant that they have 28 days’ notice to discharge any rent arrears before they serve a notice of termination. The landlord must also serve this 28-day notice on the Residential Tenancies Board who will then liaise with the tenant and offer them advice and support. If the tenant fails to pay the arrears in 28 days, the landlord is entitled to serve a notice of termination on the tenant, which must also be served on the Residential Tenancies Board at the same time. Failure to serve the Residential Tenancies Board will render the 28-day notice and any subsequent Notice of Termination invalid. 

Prohibition on Rent Increases: 

Section 6 of the Act prohibits landlords giving effect to any rent increases that would otherwise take effect during the emergency period and landlords may not increase the rent retrospectively in respect of the emergency period. Effectively, landlords are prohibited from giving effect to any rent increase until at least 11 January 2021. 

The Act strives to balance the rights and interests of both landlords and tenants effectively and aims to ensure that the most vulnerable tenants have increased protection while ensuring that the constitutional property rights of landlords are still recognised. 

J.W. O’Donovan LLP is constantly monitoring updates in this area and if you would like further information in relation to any of the above, please contact Colm Tobin, Associate Solicitor of J.W. O’Donovan LLP, Solicitors, 53 South Mall, Cork or by email at ctobin@jwod.ie 

J.W. O’Donovan LLP has pledged its name to the Law Society of Ireland’s Gender Equality, Diversity and Inclusion Charter. By pledging our name to the Charter, we are committed to promoting gender equality, diversity and inclusion for the benefit of all members of the solicitor’s profession, trainees, staff, clients and the wider public at large.

At J.W. O’Donovan, we are committed to treating individuals and groups fairly, in light of their particular needs, in areas of gender, civil status, family status, sexual orientation, religion, age, race, class, disability or membership of the Traveller Community. In this, J.W. O’Donovan will: –

• Recognise the individual needs of our employees and support them to develop to their full potential.
• Ensure equal access to opportunities for all of our employees.
• Ensure our policies, procedures and processes promote gender equality, diversity and inclusion.
• Carry out our work without bias, in a respectful and non-discriminatory manner.
• Build awareness and understanding of the benefits of promoting gender equality, diversity and inclusion.

Ciara McDonnell, Partner, leads the commitment to the Charter in J.W. O’Donovan. Should you be aware of an event or measure that we could engage with to further advance the goals of the Charter, please contact Ciara McDonnell by email at cmcdonnell@jwod.ie.

For more information on the Law Society’s Charter, please see: https://www.lawsociety.ie/Solicitors/Running-a-Practice/diversity-and-inclusion/

It is part of the human condition to believe we might be the ones to escape ill-health, infirmity, mental and physical incapacity. However, if misfortune should strike – whether through illness, an accident or elder infirmity – is it not preferable that we would each have chosen a person who we trust  to be the guardian of our best interests if we are no longer capable of doing so for ourselves. Whilst the EU and UK recently wrangled and posturized about a ‘backstop’ of wholly different proportions, executing an Enduring Power of Attorney is a choice and provision each of us can make to protect ourselves, our interests and our assets into the future.

An Enduring Power allows you to choose a person or persons to manage your property, financial affairs and/or personal care decisions should you ever become mentally incapable of doing so.

The person or persons you choose to act on your behalf are known as Attorneys and, although you are free to appoint a number of Attorneys, one has to be conscious of practical difficulties and differing opinions when a number of individuals are involved. Further, in choosing your Attorney(s) you should be confident of their trustworthiness and in their skills to manage both your assets and personal care decisions whilst being mindful of the responsibility you will be placing upon them.

The Enduring Power may give a general authority to your Attorney(s) to do all lawful acts on your behalf or it may limit authority to specific acts or particular assets. It may include financial decisions such as responsibility for your income or pension, any business(es) you may be involved in, shares you hold, your property, payment of bills and/or investing your money. The duties may also be extended to permit your Attorney(s) to make Personal Care choices for you including decisions on where you might live, the training or rehabilitation you receive and housing, social welfare and other benefits for you . The scope of the powers granted to an Attorney and any limitations thereon should be determined by you, your own wishes and circumstances and therefore it is important that the Enduring Power is tailored to your individual requirements.

Upon the initial appointment of your Attorney(s), they do not possess any immediate power, rights or authority over your assets or affairs and indeed will not ever have such authority unless or until you become mentally incapacitated and the Enduring Power is activated. The Enduring Power is activated once it is successfully registered in the Wards of Court Office. The legislation goes to significant lengths to provide sufficient safeguards to ensure an Attorney cannot register the Power and assume control of your affairs without legitimate cause and unless a Medical Doctor certifies you are, or are becoming, mentally incapable of managing your affairs . You will be notified that any such steps are being taken.

One of the additional safeguards is that at the execution of the Enduring Power, you will have chosen a minimum of two persons to act as your Notice Parties. The role of these Notice Parties is that they must be notified if the Attorney(s) ever seeks to register the Enduring Power and take over the management of your affairs. Should such an application for registration ever proceed, it is open to the Notice Parties to object if they believe same is not in your best interests at that time or if they believe the Attorney is no longer suitable for such a role.

A further part of the human condition is that circumstances and lives change over time or we simply just change our mind. It is therefore reassuring to note that the Enduring Powers may be revoked at any time up until same is registered and whilst you have mental capacity to so do. To that extent, these Powers can evolve with your life and allow for  new Attorneys, adapted circumstances or wishes.

For those individuals that choose not to execute an Enduring Power of Attorney there is some comfort that the law still provides a procedure to step in and protect an individual and their assets in the event they become incapacitated. This is achieved by an application before the President of the High Court to make an individual a Ward of Court, bring the assets of the Ward under the control of the Court and appoint a Committee to act on their behalf. The main grievances individuals appear to have with this procedure is the lack of control over decisions and assets as the Committee has no inherent authority or power – it may only do as the Court authorises and permits. Further as the Committee is appointed by the Court, it may or may not involve persons the incapacitated individual would have chosen to act on their behalf. Whilst this procedure is no doubt more cumbersome, lengthy and expensive than registering an Enduring Power it does at least ensure that for those who choose not to execute an Enduring Power they and their assets may still be protected during any period of incapacity or infirmity.

In reality, an Enduring Power of Attorney is executed with the hope that it will remain in the dusty confines of a Solicitor’s safe and never see the light of day but it is a document which is absolutely invaluable when needed and ensures that you have a say in your future no matter what that may hold.

Should you require any information please contact Niamh O’Connor of J.W. O’Donovan LLP, 53 South Mall, Cork or by email at noconnor@jwod.ie

Estate planning can be described as planning for the transfer of assets to the future generations in the most tax efficient way, while talking account of the personal circumstances and the legal and moral obligations to dependants either by way of lifetime gift or will.

A trust is a legal instrument whereby a person (known as the ‘Settlor’) places ownership of assets under the control of another person (known as the ‘Trustee’) for the benefit of someone else (known as the ‘Beneficiary’) or for a specified purpose. A trust can be set up either by lifetime deed or by will.

Commonly used types of trust include:

• Fixed Trusts in which each Beneficiary has a fixed entitlement to a specific share or interest in the trust property. For example, the Trustees might hold property equally between children of the Settlor to be paid to them upon reaching 25 years of age.
• Interest in Possession Trusts, for example a life interest in the trust property. This type of trust may be appropriate in the context of a second relationship or marriage where the Settlor is anxious to provide for his or her new partner while at the same time protecting the assets for the benefit of his or her children.
• Bare Trusts arise where property is held by the Trustees as nominees for the Beneficiary, for example an asset acquired by a parent for a minor child who, because of his or her minority, may not hold the assets directly.
• Discretionary Trusts arise where the trust property is held by the Trustees on trust for the benefit of the members of a specified class of Beneficiaries. Effectively the trustees have a discretion as to which beneficiary will receive trust assets and when. The Beneficiaries have no interest in the trust fund for legal or taxation purposes. They merely have the right to be considered favourably by the trustees for an appointment of property or income from the trust fund.

Trusts in general and discretionary trusts in particular are very useful vehicles which can assist greatly in succession planning. They offer a large degree of flexibility in particular in providing for young children, beneficiaries with disabilities, vulnerable adult beneficiaries or situations where there are subsequent relationships.

Because the Beneficiaries of a discretionary trust have no interest in the trust fund the placing of assets in a discretionary trust does not give rise to a charge to Capital Acquisitions Tax (CAT). It is only when assets are appointed out of the trust to a particular Beneficiary that a charge to CAT arises.  Discretionary trusts are accordingly particularly useful for the following:

• Ring-fencing and protecting certain assets.
• To hold asset for young children (assets either passing on death or during lifetime).
• Preserving assets for future generations – rather than passing all assets to the next generation only.
• Providing for children with disabilities.
• Providing for children who cannot manage their own affairs (for reasons other than a disability e.g. addiction).
• Providing for a non-marital partner.
• Maximising tax planning opportunities by allowing time to satisfy the conditions of various reliefs.

It is usual for the Settlor of a Discretionary trust to write a letter of wishes to the Trustees providing the Trustees with guidelines as to how he or she would like the trust fund to be distributed. While such a letter is not Binding on the Trustees, the Trustees will usually take into account the Settlor’s wishes. This is particularly useful in the case of trusts for very young children where it is difficult to know at the time creating the trust what their individual needs might be years into the future as it allows the Trustees flexibility in making fair and equitable provision for the children in light of each of their needs and circumstances.

Because the charge to CAT only arises when assets are appointed out of a discretionary trust such trusts were often used to defer the CAT liability. To counteract this Discretionary Trust Tax (DTT) was introduced in 1984.

The tax comprises an initial charge of 6% and an annual charge of 1%. If however the trust is wound up within a period of five years half of the initial charge is refunded, reducing it to 3%.

The charge to DTT in respect of a discretionary trust arises on the later of the death of the Settlor or the date on which there are no “principal objects” under the age of 21 years, principal objects being the spouse, children or minor children of a predeceased child of the Settlor. There are also, subject to certain conditions, exemptions available in respect of discretionary trusts for the benefit of persons with disabilities and vulnerable adults.

The charge to DTT will if the Settlor is dead arise when the youngest child turns 21. The charge could be avoided by appointing all of the assets out of the trust or changing the terms of the trust in advance of this. Alternatively, a view could be taken that the tax is a worthwhile cost in ensuring that a child does not come into significant assets at too young an age.

If you would like more information on this topic or on estate planning in general, please contact Patrick Bradley, Partner, by email at pbradley@jwod.ie.

Booking Deposit

When a Purchaser has an offer on a house accepted by the Auctioneer on behalf of the Vendor the first step is that he pays what is known as a “booking deposit.”

This booking deposit does not impose any obligation on either the Vendor or the Purchaser and is “subject to contract” and fully refundable (until a binding contract is in place) if the Purchaser or the Vendor declines to progress with the sale.

Contract

Contracts are drafted by the Vendor’s Solicitors and typically (unless the contract provides otherwise) do not become binding until signed by both the Vendor and the Purchaser, the contract deposit (10% of the purchase price including the booking deposit) paid to the Vendor’s Solicitor and contracts exchanged by the parties.

Until contracts are signed and exchanged either party can withdraw from the sale at any point.   Any deposit paid will be refunded in this event.   The parties may have incurred legal and engineering fees which will of course require to be paid.

Once contracts are signed and exchanged both parties are bound to complete the purchase/sale and can be compelled to do so on foot of a court order for specific performance in default and/or forfeit the deposit paid.

Loan Clause

Many purchasers finance their purchase by way of mortgage.   In that event the contract should contain the standard Law Society special condition permitting the Purchaser to withdraw from the contract without penalty if they encounter any difficulty drawing down the mortgage.   This might arise for example where there is a change in the valuation of the property or the Purchaser cannot satisfy the Lender’s requirements regarding house insurance or life assurance.   If that occurs, and such a loan clause is provided within the Contract, the Purchaser is entitled to withdraw and to a full refund of the deposit.

Help to Buy Scheme

For first time buyers of new houses with Help to Buy Scheme approval this allowance is paid directly to the Builder as part of the contract deposit.  Therefore, the amount required to be paid by the Purchaser from their own funds is reduced accordingly.

Completion

Completion is provided for by the contract and typically is within 2-4 weeks from exchange of contracts.    However, a shorter period might be agreed or provided for in the contract especially for example if the property is vacant.

COVID 19 Crisis

Due to potential unavailability of third party services, for example the Property Registration Authority (Land Registry) and Companies Registration Office, normal conveyancing practice may be delayed and it has become common practice to include a special condition in the contract to ensure that neither the Purchaser nor the Vendor will be penalised for any delay outside their control.

 

In the event of any queries please contact Kim Walley from our Property Team at J.W. O’Donovan by email at kwalley@jwod.ie.

In these difficult and uncertain times companies will be taking a forensic look at all options available to them in order to maximize cash-flow for the purpose of continuing trade.  Even where hard decisions are taken to keep the show on the road in the short term, some will look at the information gathered in their review and consider longer terms options to maintain the viability of their businesses.  One of these options may be to place the Company into Examinership.

 

What is Examinership

Examinership is a corporate recovery process which allows a company that is in financial difficulty but which has a sound underlying business model to apply to the courts for an examiner to be appointed. If the courts approve the petition for examinership, the examiner is appointed to the company with a view to formulating a proposal to ensure the company’s survival. During the period of the examiner’s appointment, the company is protected from its creditors.

 

The Examinership Petition

In order to petition for examinership, the company must be insolvent but it must have a reasonable prospect of survival and sufficient cash flow to trade during the period of the examinership.

Application is made to the court on an ex parte basis, without any notice being given to creditors or other interested parties. Save in exceptional circumstances, application must be supported by an Independent Expert’s Report which sets out the conditions needed for the company’s survival and must state that in the expert’s opinion the company (or part of its undertaking) has a reasonable prospect of survival if these conditions are met.

If the court is satisfied that statutory tests for the appointment of an examiner have been met, it will fix a date for a hearing to confirm the appointment of the examiner. Notice of the confirmation hearing must be given to creditors and other stakeholders so that they may support or oppose the examiner’s appointment. The period of court protection begins on the date of the initial ex parte application and application can be made for the examiner to be appointed on an interim basis pending the confirmation hearing.

 

The Examinership Process

The protection of the court runs for 70 days initially and can be extended on application to 100 days (but no longer). During the period of examinership, the directors of the company remain in place and carry on the day to day running of the company’s business.

Once appointed, the examiner will review the company’s affairs with a view to formulating a scheme of arrangement whereby the debts of the Company are settled, usually with a write down of debts owed to certain classes of creditors. This may include negotiating rent reductions with landlords or, where reductions cannot be agreed, applying to the court to repudiate leases. In order for an examinership to be successful, the company will generally require fresh investment from existing shareholders or from a third party and the examiner will advertise seeking expressions of interest from investors.

 

Exiting Examinership

The examiner’s proposed scheme of arrangement must be approved by a majority in number representing a majority in value of one class of creditors and no class of creditors can be unfairly prejudiced (i.e. they must not receive less than they would in the event that the company were liquidated). If external investment has been secured an investment agreement will need to be prepared and executed.

Once approved by at least one class of creditor, the scheme of arrangement is presented to the court. If the court is satisfied it will make an order approving the scheme of arrangement and the examinership will end.

 

Key Considerations

• • A petition will be refused if a resolution to wind up the company has been passed, an order has been made for the winding up of the Company or a receiver has been appointed over any of the Company’s undertaking and assets and has been in place for three days prior to the petition being made.

• • The costs of applying for examinership are substantial. While most SMEs will meet the criteria for examinership through the Circuit Court, the costs of the Independent Expert’s Report and bringing the petition will be in the region of €15,000 – €20,000. Larger companies must petition the High Court with much higher associated costs. As a result, it is important to initiate the process at an early stage while the company still has sufficient cash available to fund the application.

• • In order to maintain cash flow during the protection period, and to secure the approval of the scheme of arrangement, the support of key customers and suppliers is vital if an examinership is to succeed.

• • An external investor will have a limited period of time in which to carry out due diligence on the company so work should commence immediately on gathering the relevant information that an investor is likely to require.

• • An external investor is likely to seek a substantial equity stake in the Company in return for their investment which can lead to the existing shareholders’ stake being effectively wiped out. As a result, it may be preferable for existing shareholders to source funds themselves and advance them to the company.

 

In J.W. O’Donovan we have both the experience and expertise across our various departments including Corporate and Commercial, Litigation and Property to guide you through the Examinership process from start to finish.  Should you wish to discuss the process in more detail then please don’t hesitate to contact either John Sheehan or John Fuller of our Corporate Department, details for whom can be found on our website www.jwod.ie