Property Law Practice 2013-14 Report on Legal Liability The WritePass Journal

Property Law Practice 2013-14 Report on Legal Liability A.  Ã‚  Ã‚  Ã‚   Issues: Property Law Practice 2013-14 Report on Legal Liability , 4.7). Limitation of liability cannot occur, because the action will be in nuisance and under the land law. Thus, there needs to be proper designing of the building, which means that ABC will be ultimately liable as it is using an in house architect. Another potential nuisance that may arise is if ABC and XYZ do not minimise the dust and debris from the site (Andreae v Selfridge [1938] Ch1). ABC may delegate these obligations to XYZ and limit liability; however, as the owner occupier there is still a duty to supervise. This means that to limit liability ABC will need to have a supervisory plan in place. F. Occupier’s Liability: Homeless Persons Vacant Site: The frequenting of homeless people may give rise to legal liability if the site is not appropriately secure to prevent access. Section 1(1) of the Occupiers Liability Act 1957 (OLA 1957) provides a duty of care to visitors on the site (Adriaanse, 2010, p. 126).   A homeless person will not be identified as a visitor; rather he/she will be a trespasser. However, the Occupiers Liability Act 1984 (OLA 1984) requires that visitors on a construction site without invitation also have to be protected. It is arguable that the property is not a construction site yet, but this does not mean that there should be no protection for trespassers at all. Rather, there is still an obligation to prevent harm to trespassers. Under s. 1(2) OLA 1957 it provides that there is an obligation to protect licensees. A licensee can be a trespasser who enters the land where the occupier is aware of the trespass and the danger (Lowery v Walker  [1911] AC 10). Without knowledge of the trespass, there will not be a direct obligation (Edwards v Railway Executive  [1952] AC 737). Taylor v Glasgow City Council  [1922] 1 AC 44  indicates that if there is an allurement on the land, such as a vacant property then a license may be implied. This has been limited with OLA 1984, as such there is a reluctance to impute an implied license based on allurement alone (i.e. the imputed knowledge that individuals will enter the land) (Tomlinson v Congleton  [2003] 3 WLR 705). The implication is that the accessibility of the site is not enough to impute occupier’s liability. The failure to prevent the homeless persons would give rise to liability under s. 1(2) OLA 1957. To discharge liability under s. 1(2) OLA 1957, ABC has to take all reasonable acts to make the property safe (s. 2(2) OLA 1957). It is possible for him to discharge liability through a notice, which identifies that no trespassers are allowed (Roles v Nathan  [1963] 1 WLR 1117) and the danger of the site is identified (White v Blackmore  [1972] 3 WLR 296). It may be argued that if no sign is put up, and the danger is obvious then there will not be liability against ABC because the individual has assumed the risk (Darby v National Trust  (2001) 3 LGLR 29). Nevertheless, as the property is boarded up it may not be obvious how dangerous the site is to others. Recommendation: Therefore, a sign that clearly should be posted, which states that: No trespassers are allowed; and The dangers of the site The posting of the sign should be at all possible access points, in order to exclude liability. Liability for Active Construction Site: When the site becomes active, there may be dual liability under OLA 1957 and OLA 1984 for ABC and XYZ. This will depend on the nature of control by ABC and XYZ (Adriaanse, 2010, p. 126). For XYZ to be held as an occupier, it should have a degree of control and supervision (Wheat v Lacon [1966] AC 552). As XYZ is the controlling contractor then it will owe an obligation to prevent visitors, employees and sub-contractors from dangers caused by physical defects on the site (Bunker v Charles Brand [1969] 2 QB 480). It is important to stress that there is an obligation on ABC and XYZ to secure the site, which includes all moveable; otherwise liability may arise from harm that emanates from the site (Jolley v London Borough Council [2000] 1 WLR 1083). Securing of the site is also important, because if children access it and are harmed then there will be liability, even with signage, due to the frivolity of youth doctrine (confirmed in OLA 1984) (Keown v Coventry Trust Healthcare NHS [2006] EWCA Civ 39). If the harm is caused by an adult entering the site when there is clear signage of danger then there is assumption of risk and no obligation is owed (Tomlinson v Congelton). Recommendation: ABC and XYZ will need to ensure that there are special measures in place to secure the property when it is an active construction site. This is because any harm that emanates from the site needs to be reasonably mitigated (s. 2(2) OLA 1957) to protect third parties on the site or passing by the site. Securing the site, in order to prevent children entering is paramount, because signage is not enough. Nevertheless, such signage is important to prevent liability for adult trespassers, such as the homeless persons. G.Obligations under the PWA 1996: There is an obligation under s. 1(1) PWA 1996 that there must be notification of any work on a party wall, or that may affect a party wall (Jessop, 2000, p. 8). In fact, Excavations below the level of the foundations of nearby buildings also require that there are notifications under s. 6 PWA 1996. Finally, ss. 2 to 5 PWA 1996 provides that works directly on the party walls, which pose harm to the neighbour’s wall must be notified (Bickford Smith and Lamont, 2007, p. 2). The failure for ABC to notify those neighbours under the PWA 1996 will result in a civil breach of the act. In addition, any damage that is caused must be rectified (Geoffrey Kaye v Matthew Lawrence [2010] EWHC 2678). The obligations of notification are as follows: There must be at least one month’s notice before the construction starts (ss. 2-3 PWA 1996); The neighbours then have the right to consent, consent with provisos or reject the proposed building (s. 4 PWA 1996); and If the neighbour fails to reply and/or no agreement is made then s. 10 PWA 1996 must be engaged (i.e. the dispute resolution procedure) (RICS, 2011; s. 4.1 PWA 1996). A security may be requested by the affected neighbours in case there is harm to the party walls ( 12(1) PWA 1996), in order to meet the obligation of rectification. The failure to engage the notice procedure is too big a risk, because if notice is not served, and harm occurs then there is a presumption of negligence that cannot be discharged (Roadrunner Properties Limited v (1) John Dean (2) Suffolk and Essex Joinery Limited [2003] EWCA Civ 1816). Recommendation: It is essential that ABC serves notices of all neighbours that fall under the PWA 1996; otherwise, it will be in breach of the act, and if harm occurs, there is a presumption of negligence that cannot be waived. Rather, it is the obligation of ABC to prove they were not liable for the harm, which is difficult due to the nature of the harm. ABC may argue that they are not liable, because such an act is delegated to XYZ and liability limited. However, the PWA 1996 holds the property owner liable, which cannot be delegated. H. Conclusion: To summarise the following recommendations identified in each of the sections highlight that there are obligations that ABC and XYZ will owe. Many of the obligations cannot be excluded through limitation of liability clauses and notices. Those that do allow limitation of liability requires reasonable steps to be taken, in order to notify persons of the potential harm (e.g. proper and sufficient signposting of the danger of the site, prohibition of trespassers and limitation of liability). Thus, the overall advice that is given is that ABC and XYZ do not cut corners and fully comply with the law, especially the PWA 1996 due to the nature of the construction project. References: Adriaanse, J (2010) Construction Contract Law 3rd Edition, Palgrave MacMillan Bickford Smith, S and Lamont, C (2007) â€Å"Party Walls etc Act 1996: Ten Years On† Property Bar Association Mini-Conference 13th November 2007 Dugdale, T (2006) â€Å"The Date of Damage in Defective Property Cases† PN 22(3) 196-199 Jessop, D. (2002) ‘Party Wall Practice Procedure in Brief’, The Journal of the RICS Building Surveying Faculty 4, 8-10 Law Commission (2013) Rights to Light Consultation Paper 210 Lowe, D (2005) Duty of Care Deeds and Commercial Property RICS McGee, A   (2000) â€Å"Economic Loss and the problem of the running of time† (2000) CJQ 19, 39-55 Cases: Abbott v Will Gannon Smith [2005] PNLR 30 CA Andreae v Selfridge [1938] Ch1 Bernstein of Leigh (Baron) v. Skyviews General Ltd. [1978] Q.B. 479 Bunker v Charles Brand [1969] 2 QB 480 D F Estates v Church Commissioners for England and Wales [1989] AC 177 D F Estates v Church Commissioners for England and Wales [1989] AC 177 Darby v National Trust  (2001) 3 LGLR 29 Duke of Westminster v Guild [1985] QB 688 East Ham v Bernard Sunley [1966] AC 406 Edwards v Railway Executive  [1952] AC 737 Geoffrey Kaye v Matthew Lawrence [2010] EWHC 2678 Hedley Byrne v Heller Partners [1964] AC 465 HL Invercargill City Council v Hamlin [1996] 1 NZLR 513 IRC v Maxse (1919) 12 TC 41 Jolley v London Borough Council [2000] 1 WLR 1083 Kelsen v Imperial Tobacco Co [1957] 2 QB 334 Keown v Coventry Trust Healthcare NHS [2006] EWCA Civ 39 Lanphier v Phipos (1838) 8 CP 47 Liverpool City Council v Irwin [1977] AC 239 Lowery v Walker  [1911] AC 10 Michael Hyde and Associates Ltd v JD Williams and Co Ltd [2000] EWCA Civ 211   Midland Bank Trust Co Ltd V Hett, Stubbs and Kemp [1978] 2 WLR 167 Murphy v Brentwood DC [1991] 1 AC 398 Murphy v Brentwood DC [1991] 1 AC 398 Nye Saunders and Partners (a firm) v Alan E Bristow (1987) BLR 92 Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1 Ratcliffe v Sandwell MBC [2002] EWCA Civ 6 (2002) 1 WLR 1488 Roles v Nathan  [1963] 1 WLR 1117 Saif Ali v Sydney Mitchell [1980] AC 198; Taylor v Glasgow City Council  [1922] 1 AC 44 Tomlinson v Congleton  [2003] 3 WLR 705 Turiff Ltd v Welsh National Water Development Authority [1994] Const LY 122 Westminster City Council v Ocean Leisure [2004] BLR 393). Wheat v Lacon [1966] AC 552 White v Blackmore  [1972] 3 WLR 296

buy custom Entrepreneurial Finance essay

buy custom Entrepreneurial Finance essay Venture Capitalists Venture capital is a fund or a capital pool that is established to make early to late stage types of investments in private equities. Venture capitalists in most circumstances invest in small private entrepreneurships with the hope of capital gains after such activities as Initial Public Offerings (Metrick Yasuda 2007, p. 430). Such exit outcomes or acquisitions in most instances happen within three to five years after the investors initial investment. In such situations, the venture capitalists pay comes from the initial investments as well as any profits that the company makes. The profits are therefore split between the given company and the investor. A business venture is a high-risk investment since it happens at an early stage of a business. Venture capital management is carried out by companies with great expertise in the given sector. Venture capitalists act as a great source of funding. In addition, they help manage and develop small companies (ed. Landstrom 2007, p. 70). However, there exists a great deal of risks associated with these types of ventures. Therefore, it is crucial that the venture capitalist adopts mechanisms that can mitigate the expected risks. Mitigation of such risks increases the chances of greater capital returns from the business. This paper intends to explore the risks and possible mechanisms available to venture capitalists for eliminating the risks. Risk and Risk Mitigation Mechanisms used by the Venture Capitalists A person who decides to make an investments in the venture capital often faces several risks. However, it is important that the lender understands possible risks and analyses the available risk mitigation mechanisms. The probable risks form the following list. Risks of the Unknown When choosing a business to invest in, both hi-tech and low-tech options are considered. However, most argue that for the former, understanding of the given product or service qualifies is requied for one to make an investment in such a business. However, ed. Cumming (2010, p. 110) posits that most ventures take a lot of time to become successful and great ideas. The biggest challenge of a venture implementation is in the details as well as execution. For example, an individual with an e-commerce background may find it difficult to make an investment in a devices used for orthopaedics. Such decision may require the e-commerce investor to spend much time in trying to find out the right amount of field trials needed before pitching the venture to the right acquirer. For example, a firms such as Andreessen Horowitz dealing with the line of consumer products as well as services in the United States is a good example of a successful venture in 2014. To achieve such success, the organisati on had to mitigate several risks such as the fear of the unknown. To mitigate such risk, the venture capitalist may only invest in the areas where the venture managers, as well as the fund managers, have reasonable knowledge. In such cases, if the investor has interest in funding and supporting an idea where the funding management has little or no expertise, the fund management team should consider appointing an advisor (Malerba et al. 2015, p. 140). It should be an individual who is equipped with the needed skills and willing to work closely with the investment team. Risk of Running Out of Cash Before getting the right funding, most ventures are in a bootstrapping mode. The spending in such ventures is conservative, and the prediction of expected revenue is optimistic. If an idea of such a business spreads virally, it works. To mitigate a risk of the lack of cash, the venture capitalist should assess how much money is needed according to the most rational forecast. According to Tobin Parker (2009, p. 130), to achieve this aim, the outflow is multiplied by 1.5 and the cash inflows - by 0.5. The company that is suitable for funding is the one with at least a 20% more than the number one arrives at. Essentially, a start-up organisation requires at least 18 months runway. In addition, the venture capitalist can make a syndicate with an individual who can oversee the follow-up of the investment. The Risk of Competition Any venture entering the market has to guarantee profits for its investors and thus outdo the competitors successfully. There are not many fields with barriers to entry, but an example of such sphere may be technology. As such, such kinds of markets and ventures become more attractive for investors as compared to obvious and average products. The technological development in a successful organisation may act as the tool for increasing its competitiveness (eds Lee, Lee Lee 2010, p.767). An example of a successful venture capitalist is Steve Anderson, who decided to invest in Instagram before other bigger venture capitalists, and the decision paid off well with Facebook bought the company. Such an investor had made an assessment of the risk of competition and by investing had mitigated the risk. To mitigate this risk, venture capitalists have a duty of identifying such ventures. In addition, investors can promote and fund technological developments of such businesses. Through applying such mechanisms and increasing competitive edge, the organisation becomes protected from competition. Moreover, most venture capitalists prefer to fund organisations with better quality of science. Due to the risks associated with the competition, venture capitalists at times decide to fund the venture in stages. More investment depends on passing a given milestone (Metrick Yasuda 2007, p. 430). Entrepreneurial Environment and Implementation Risk Venture capitalists have greater interest in companies situated in a favourable entrepreneurial environment. Favourable entrepreneurial environment has a sufficient number of companies with similar products, hence there is a large pool of talent. When there are several small similar companies in the same area, the CEOs can have sessions for sharing ideas and developing given solutions. Such environment also may support a large number of attorneys as well as accountants who are familiar with the venture. Buy custom Entrepreneurial Finance essay