Gareth O’Hara, Managing Partner at The Wilkes Partnership and motor industry specialist, provides a guide on what to look for when buying a new dealership for Motor Finance Magazine

When expanding a business through acquisition, it is vital to understand the full facts surrounding the business being purchased. The car acquisitions market for car dealerships is no different.  Having conducted more than 40 deals in this sector, we have a keen insight into the way that businesses are bought and sold.

Before even starting a buying process, having a thorough understanding of the market and assessing the factors impacting it, is vital to deciding whether it is the right time to do a deal. In this rapidly fluctuating industry – which can be susceptible to factors including labour costs, property costs and the revolution of electric and hybrid vehicles – it takes research and a keen business mind to succeed.

In fact, some fantastic deals have been conducted in a down market and many of today’s largest dealerships formed, established and thrived through the recession. So, regardless of whether we’re worried about recession or Brexit uncertainty, there are always opportunities. What really matters comes down to grasping opportunity and making the best deal for the right price and reacting to the market, rather than fearing it. To make the best choice, regardless of economic climate, here is a useful checklist to follow dealing with major issues that need to be covered in the legal documentation.

Business

  1. Ensure the customer database is transferred and live on completion. Sometimes data can be transferred or held by the data supplier on behalf of the buyer before the deal is complete and held ready to release
  2. Are employee terms and benefits consistent with what you expect, have employees been properly consulted and notified in accordance with relevant legislation?
  3. Do any family members that are no longer active or want to be active in the business post sale need to resign?
  4. Are you happy with the quality and age of the vehicle stock and particularly the parts stock that you are paying for? Have you checked it thoroughly?

Property

  1. Does the title plan match the property itself? Are there any unexpected rights of way or shared occupation issues?
  2. Do you actually want everything on the site? Many dealerships have shared facilities with other neighbouring sites. A survey and valuation may be required particularly if finance is involved from a third party.
  3. Do you need to keep the business separate from the property using a property holding company?

Legal

  1. Have you agreed the terms of any new franchise agreement?
  2. Are you buying the telephone numbers and domain names of the business? This will be crucial if it is a shared site, or the number is for another dealership on the same site
  3. Are there any assets included that shouldn’t be part of the business? Can these be bought out by the sellers pre deal?
  4. Has all litigation or disputes with customers been settled? If not, make sure appropriate indemnities are included in the contract. How will you deal with these going forward?
  5. Are all the cars you are buying with the franchise as described? Have you checked them all? Do you understand the finance position on any vehicles? Does any finance need repaying on completion?
  6. Has a principle been agreed for any remedial works to vehicles that have been sold and subsequently come back with complaints? An hourly rate and a cost for parts will need to be agreed, this is usually at a discounted rate for carrying out the work
  7. Ensure that a procedure is in place for sharing any profit on vehicles ordered but not yet delivered

The Sale

  1. On completion, will someone from your team be on site to collect property keys, alarm codes, laptops and mobile phones and be able to check that everything agreed in the sale is on the premises?
  2. Is new insurance in place on the business and its assets?
  3. If it is an asset purchase, are all charges released? If it’s a share purchase, are relevant charges in place and are they in line with existing facilities?
  4. What promises have been made to customers? For example, servicing and free MOTs or any warranties provided that could be called on in the future. How are you dealing with this?
  5. Ensure someone from your existing business is on hand for the first few weeks to deal with any issues that may arise.

To get the best deal for both the buyer and the seller all aspects need to run smoothly to ensure every eventuality is prepared for. Understanding and dealing with the issues makes for a smoother acquisition for all parties, and more importantly a seamless service for existing customers.

The right legal expertise assists in the process and more importantly ensures that all of the issues are dealt with properly in advance of completion. This means that the buyer can concentrate on the business going forward and the seller knows that he has disclosed any issues that could result in a claim against him.

For more information about how The Wilkes Partnership can help you with your business please contact Gareth O’Hara on 0121 710 5904 or email gohara@wilkes.co.uk. To find out more about our Corporate Team click here.

Amanda Holden, Partner in our Residential Conveyancing team warns that conscientious homeowners wanting to reduce their carbon footprint by installing solar panels could encounter unforeseen difficulties when they come to sell their house.

In addition buyers need to be aware it might be difficult to get a mortgage on a property they have set their heart on with solar panels on the roof.

When solar power government incentives were introduced in 2010, start- up companies cashing in on these generous feed- in tariffs offered homeowners free installation and low energy bills in return for a 25-year lease of the air space above their roof. These companies then received the feed- in tariffs themselves for the period of the lease after which the ownership of the panels and roof returned to the homeowner who would then receive the feed- in tariffs themselves.

In 2013 the Council of Mortgage Lenders and the Building Societies Association introduced a contract for solar panel companies to enter into with stringent rules put in place to ensure that any damage to the property would be repaired. However anyone having solar panels installed in this way in those interim three years are not protected by this contract and may find it difficult to sell their home.

Installation costs have now gone down dramatically and so have the feed- in tariffs.  These will in fact be abolished altogether for solar panels installed after 31 March this year. If you are hoping to get in quick with plans to meet this deadline then be careful that you are fully aware of what you are entering into.  The 25-year leases are registered against the title to the property regardless of who owns it and you will have to find a buyer willing to take on the remaining years of any existing lease. Even if your buyer is happy their proposed mortgage lender may have additional requirements in this respect.

If you are determined to do your bit for the planet in this way then be sure to familiarize yourself with all of the implications. Your solar panel provider will need to obtain permission from your mortgage company to grant consent for the lease of the air space above your roof .

Even if you own your home outright then you should still seek legal advice before agreeing to such a lease otherwise you could be compromising your ability to sell.

If you would like to discuss any conveyancing matter in more detail please contact Amanda Holden on 0121 733 8000 or aholden@wilkes.co.uk.

You can find out more about our conveyancing team here.

The Wilkes Partnership and Coley & Tilley, have announced a merger creating a 185 person strong firm with a turnover of £12 million a year.

This expansion will significantly enhance our offering for corporate clients and expand our expertise in a range of areas including, commercial property, dispute resolution, corporate & commercial, employment, family, residential conveyancing and probate law. The personal injury team will stay under the Coley & Tilley brand as a recognised market leader in the Midlands.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “This merger continues the long term growth plans that we have for the firm and by joining with Coley & Tilley we have added considerable legal experience in a range of practice areas. We want to provide the best quality legal services to clients and through this merger we are doing that.

We set out with an ambition to continue growing and delivering expertise that is recognised both regionally and nationally. This merger is a huge step in the right direction of realising those ambitions.”

In 2013, The Wilkes Partnership merged with Solihull-based Williamson & Soden, and continued its growth with several promotions in 2018, as well as expanding its senior team by appointing a HR & Compliance Director, Head of Contentious Probate and two new Managing Partners.

James Leo, Managing Partner at Coley & Tilley, added:  “Through discussions with Nigel and other board members at Wilkes we quickly realised that bringing the two firms together would both complement and enhance our offering to clients. We have similar ambitions to deliver quality work that is industry leading and we have taken care that our clients will see a seamless transition to the new firm with their original points of contact.

“This is the start of a new chapter for both Wilkes and Coley & Tilley and one that provides fresh opportunities to expand and grow together.”

For more information please contact rreid@wilkes.co.uk

Kevin Lynch, Partner in our Contentious Probate department advises that it is vital to consider your options where the validity of a will is doubted or the person intending to take out a grant of probate in a deceased person’s estate is unsuitable.

It may be appropriate to file a Caveat to prevent the grant of probate from being extracted so that you can consider instructing solicitors to investigate the matter further. The problem facing most people is knowing whether it is appropriate to file a Caveat.

A caveat is used to prevent a grant of probate in a deceased person’s estate being extracted. Naturally, this will prevent the estate administration and stop the appointed executor from administering the estate. A caveat is a particularly useful tool when investigating the circumstances surrounding the preparation and execution of a Will if you think that it may be invalid. Preventing the grant may also be useful if you believe that the appointed executor should not be dealing with the estate for any reason i.e. they are unsuitable to take out the grant and administer the estate because they have had their ‘hands in the till’.

Filing a Caveat is relatively simple and can be done so with the Probate Registry along with the appropriate fee (currently £20). Once filed and sealed by the Probate Registry, the Caveat will remain in place for six months. It can then be extended for a further six months (provided that this is done at least a month before its expiry) for as long as necessary. If the Caveat is not renewed, it automatically expires.

This may sound simple enough. However, Caveats can become very difficult to deal with if you do not have proper grounds to enter it, or it is opposed. In order to lodge a Caveat, the Caveator must have a contrary interest in the estate i.e. you are a child of the deceased who has been disinherited. A Caveat is not a tool to be used in the event that you are a third party without an interest (and never has) in the estate.

If the Caveator receives a Warning from a party opposing the Caveat, the matter can become very complicated. It is at this stage that the Caveator must consider entering an Appearance (to solidify the Caveat and lock it into place) or allow it to fall away. Entering an Appearance can have serious costs consequences in the event that litigation ensues and the Caveat has been unduly or incorrectly entered.

Even if you believe that there are reasonable grounds for entering a Caveat, it may be the case that your concerns are misplaced or you have not understood the rules in relation to entering a Caveat correctly. It is always prudent to seek independent legal advice when considering potential challenges to a Will or if you have been notified of a Caveat against an estate to which you are an executor or personal representative. Dealing with these issues is not easy and, if done incorrectly, can lead to serious costs consequences.

The Contentious Probate Team at The Wilkes Partnership advises those disputing the validity of a Will and the suitably of the intended executors/administrators.  If you wish to discuss any aspect of these issues, please get in touch with Kevin Lynch on 0121 233 4333 or via email on klynch@wilkes.co.uk.

We are delighted to have launched our new website, fresh for 2019, that will allow visitors and clients to interact with Wilkes in a smoother and more efficient manner across all devices.

Our new website has been designed to offer the ultimate user-friendly experience with improved navigation and functionality whilst allowing visitors to find out about the full range of services here at Wilkes, and the skilled teams that deliver them.

The site’s new and improved news section will provide visitors with an up-to-date, reliable source of legal news for both businesses and individuals.

We will also be maintaining our German website and are in the process of working towards a site wide translation tool that should be available from the Spring.

We would love to hear your thoughts on our new website. Please get in touch on Twitter @WilkesLaw or email us on marketing@wilkes.co.uk with your comments and feedback.

The weather has been unusually mild so far this winter but as is typical of the UK, it could turn for the worse at any time. The Met Office currently predicts that as we head into the New Year, there is the chance of high pressure becoming established close to the UK, with an increasing chance of some snow showers.

Over the last few winters, spates of bad weather caused major disruption to businesses across the UK; the estimated cost to the UK economy is £230 million per day of disruption.

Pam Sidhu, Head of Employment at Wilkes, advises that employers should have a Bad Weather Policy as part of the usual suite of employment policies in the company handbook, so that employees clearly understand what is expected of them in such circumstances and what the ramifications are if they are unable to attend work due to extreme adverse weather.

Traditionally, there appears to be a culture within much of the UK whereby employees consider such weather events to be an opportunity to take a ‘duvet day’ for which they will receive full salary. However, the fact of the matter is that employees are not automatically entitled to pay if they are unable to get into work due to bad weather.

Pam explains that a sensibly drafted Bad Weather Policy would go some way to dispelling  any myth that employees can take paid time off and provide advance clarification to the workforce as to the employer’s expectations in these circumstances.

The fundamental principle of any such policy would be that in the first instance employees are required to make reasonable efforts to attend work. This may include attending a different office that is more easily accessible.

Employers should also be as flexible as possible in their approach and where possible should consider allowing employees to work remotely from home. This  is becoming more and more feasible nowadays, with the increased use of mobile devices and accessibility of work emails from home computers and laptops. It may also be reasonable to allow employees to take annual leave at short notice or even unpaid leave.

Where an employer feels that the policy is being abused they could introduce disciplinary sanctions to counteract this, where for example it is clear that the employee has failed to make any effort to attend work. The employer will need to be careful to ensure that they are consistent in their approach in this respect.

They will also need to consider the personal circumstances of each employee. Some may live in a very accessible area close to their workplace, whereas others may live some distance away or in more rural locations.

Pam explains that ultimately an employer has a duty of care towards the health and safety of its employees and if through threats of disciplinary sanctions, employees are unreasonably forced to make potentially hazardous journeys then this may expose the employer to risk.

Additionally, it should be noted that employees have the right to reasonable unpaid time off to care for various dependants in emergency situations and not be subjected to any detriment in employment as a result. As such, an employee with young children whose school has closed due to the conditions is likely to be entitled to time off to care for them.

Strictly speaking, the right to time off is unpaid but not all employers will take this approach.  If the employer pays, it is important that it adopts a consistent approach to all staff including those without children.

Pam advises that whilst there will never be a perfect solution to the disruption caused by bad weather to the workplace, good planning and communication by the employer will go some way to alleviating the situation when it does arise.

For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or  psidhu@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

A Race Disparity Audit conducted in 2017 found large variations in pay and opportunities between white British people and ethnic minorities. For instance, it was concluded that around 1 in 10 adults from a Black, Pakistani, Bangladeshi or Mixed origin were unemployed compared with 1 in 25 White British adults.

Against this background, the Government are currently in consultation over introducing the compulsory disclosure of information on pay gaps for employees from different ethnic groups. It is hoped that this may improve equal opportunities in the workplace which, in turn, is likely to benefit Britain’s economy. As part of the consultation, which is due to close on 11 January 2019, businesses are able to share their views as to what information should be published.

Lisa Moore of the Wilkes Employment Team comments, “It is anticipated that the extended reporting obligations will operate in a similar way to gender pay gap reporting. Nevertheless, it appears that reporting on race pay will be a more complex exercise and, as things stand, there as a lack of clarity as to what exactly would need to be reported.”

Amongst other things, the consultation raises the following questions:-

  • Which employers will be bound by the new reporting obligations? Whilst it is most likely that this will apply to employers of 250 workers or more, it has previously been suggested that this could be extended to employers with as few as 50 workers.
  • How do employers collect the requisite data? Accurate reporting will require individuals to divulge all necessary information to their employers. Individuals may not, however, wish to engage with the process. Care will also need to be taken by employers in collating such data to comply with any data protection obligations.
  • How will ethnic groups be classified? The Office for National Statistics classifies individuals into 19 distinct groups. Alternatively, 5 more general groups are commonly used, namely, White, Asian, Black, Mixed and Other.
  • What approach will be taken to reporting the data? This could be as simple as producing one figure comparing average hourly earnings of groups of employees or could compare earnings by pay band or quartile.
  • What other contextual information should be disclosed? Specifically, information like age, gender and location of workers is likely to be highly relevant.
  • Will an action plan be required where employers reveal disparities? If the template for gender pay reporting is adopted, there is no obligation for employers to produce any sort of action plan or narrative in relation to the data published.

Lisa Moore comments, “It is commendable that the Government is attempting to target discrimination against ethnic groups in the workplace. However, it remains to be seen if or how any disparities identified will be tackled and therefore if any improvements to equal opportunities are realistic.”

“There is also a question mark as to how accurate and meaningful any data published will be. In particular, the reporting requirement will not identify why certain ethnic groups might not be applying for particular jobs in the first place nor will it account for discrimination that may occur during recruitment processes.”

Please look out for further updates on this topic in due course.

To discuss anything arising from this update, please contact Lisa Moore on 0121 710 5847 or via email at lmoore@wilkes.co.uk. You can also contact any other member of the Employment Team on 0121 233 4333 

 It is almost that time of year again. The traditional Christmas party is an event that is eagerly anticipated in the majority of workplaces. It can take many forms, in or outside the office premises, during or after work time, informal or formal.

It is also an event that can leave participants with more than just a sore head from one too many at the free bar.

Let’s face it, it is the time of year when as well as free flowing booze, often participants can get carried away and end up letting more than just their hair down. One thing that is certain, according to Sarah Begley, Employment Solicitor at The Wilkes Partnership, is that incidents that occur during this time can potentially land the employee and/or employer in trouble. A lot of trouble.

Workplace behaviour and what is deemed acceptable has been closely followed by the media in the wake of high profile scandals allegedly involving the likes of Harvey Weinstein and Sir Philip Green to name just two.

Now is the time for employers to get their house in order. It is important to remember that employment laws apply even where a party takes place off work premises and outside working hours. Employers could be liable for acts of discrimination, harassment, assault or other unwanted conduct by employees.

Whilst most parties pass with no more than a dodgy dance move or two and a fair share of hangovers, employers should bear in mind some simple measures to help the event pass without incident and reduce the potential risk.

Avoiding Discrimination

The first issue for an employer to consider comes in the planning stage of the party.

Arrangements for the party should be non-discriminatory. If the party is away from office premises, the employer should ensure it has suitable access for disabled staff.

Staff of all religions should be considered. Some religions do not celebrate Christmas and employees of those religions may not want to attend the party and should not be pressured to do so or disadvantaged by not doing so.

Additionally, certain religions forbid the drinking of alcohol or the eating of particular foods. Employers therefore need to ensure soft drinks are equally available and the menu options suitably varied where possible, so as to make the event as inclusive as possible.

If there is an over demand for annual leave requests the day following the party, employers should avoid automatically giving priority to those attending the party.

Acceptable Standards of Behaviour

Drink fuelled behaviour is the root cause of many tribunal claims every year. Employers should remind employees prior to the party that they are representing the organisation and set the boundaries in terms of what are acceptable/unacceptable standards of behaviour.

Employers should make clear to employees that any misconduct at the party will be deemed to be misconduct at work, highlighting the fact that disciplinary sanctions may follow if any employees are guilty of inappropriate behaviour.

It is also worth ensuring that the company’s own policies and procedures in this regard are up to date and encourage all staff to familiarise themselves with the policies prior to the party taking place.

Harassment

Remember that employers may be liable for incidents of harassment that take place at work related social events and could face tribunal claims.

Whilst the Christmas party has often been viewed as the opportunity to pursue that office crush, if the feelings are not reciprocated then the recipient of that advance may, with some justification, feel that they have been subjected to harassment.

Fundamentally an employer needs to be aware that they can be vicariously liable for the actions of an employee in this respect, advises Sarah. There are however simple steps an employer can take to mitigate this risk.

There’s no harm, and indeed every benefit, in employers reminding employees of the need to behave and treat each other with respect. An up to date harassment policy, which is brought to the attention of all staff, will also help to reduce the risk of harassment occurring and go some way to protect the employer.

Additionally, employers should investigate any complaints received promptly.

Absence

Finally there comes the morning after the night before.

Where the Christmas party takes place on a working night, there is always the possibility that employees will “pull a sickie” the next day as a result of over-exuberance.

It is a good idea to warn staff in advance that unauthorised absence the day after the Christmas party may result in disciplinary action. To mitigate this risk, employers could encourage employees to book annual leave, subject to maintaining adequate staff levels.

Where an employer has a suspicion that the real reason for unauthorised absence is too much alcohol the night before, they must ensure this is in fact most likely the case before taking any action and apply any sanction consistently in line with other cases.  Failure to do so could potentially result in unsafe disciplinary action.

Ultimately the Christmas party is about rewarding and thanking your staff for their efforts over the preceding year. Following the basic steps above in advance of the party will only serve to enhance everyone’s enjoyment of it.

If you have any query arising from this update, please contact Sarah Begley on 0121 733 4312 or sbegley@wilkes.co.uk or any member of the Employment team.

The Wilkes Partnership has advised Smarts Plumbing Specialists Limited, a leading Midlands-based provider of plumbing and heating services, in raising a £3.5million term loan to support the next phase of growth.

As part of the deal Rick Smyth, Jeremy Parkin and Sana Ikhlaq from the Wilkes Corporate Team worked alongside Roy Farmer & Harvey Austin from Dains Corporate Finance, Sean Brophy & Harry Jeffrey of Caple and Ash Middleton of Close Brothers.

Smarts, based in Heath Hayes, was formed in 1972 by John Smart, and then subsequently acquired by his three sons Alan, Kevin and Chris in 1993.Smarts installs plumbing and central heating systems into new build residential properties and has developed complementary business streams in the areas of maintenance and boiler servicing.

Smarts has longstanding relationships with all of the major national housebuilders including Barratts, Persimmon, Taylor Wimpey and Redrow and prides itself on providing a quality service and high levels of aftercare, thereby maintaining its excellent reputation in the market.

Commenting on the deal, Managing Director Alan Smart said: “The company was formed over 45 years ago by my father John, and me and my brothers continued to develop the business following dad’s retirement.  We are a fiercely proud family-run business with a strong culture and over the years have built a loyal and experienced team who we regard as our extended family.

I am very excited about the future, and myself and my brothers will continue to drive the business forwards whilst developing the management team and bringing them into the ownership of the business.

Alan further commented – “We felt confident throughout the negotiations that Rick and the team were completely on top of the deal and helping to drive the process to completion. We are grateful for their help, expertise and energy.  ”

Commenting on the deal Rick said: “It was a real pleasure working with the team at Smarts. It’s great to be a part of their success story.  We look forward to a continued relationship with Alan and the team during the next phase of the company’s development.”

The deal was the latest in a string of substantial transactions completed by the Corporate team in Q3 – demonstrating the range of expertise that we have at Wilkes to deliver these sorts of transactions.

For help and advice relating to your business get in touch with Rick Smyth on 0121 710 5932 or via email at rsmyth@wilkes.co.uk.

Selling a business is often the culmination of years of hard work. Most entrepreneurs will only go through this process once and it is important to get it right first time. Here we address the typical questions that owners might ask, when they are thinking about selling up.

What price can I expect? There are different ways of valuing a business. A valuation might be based on underlying profitability or net asset value. The simple fact though, is that a business is only worth what someone will pay for it. The price is a matter for negotiation and the figure you command may well depend on the level of interest in your business. An experienced adviser can make a huge difference here – they can help present your financials in the best light, gauge interest from potential buyers and help you navigate through the negotiations.

When should I sell? The timing will depend on your reasons for selling. You may want to retire, embark on another project or simply cash in on your investment. Whatever motivates you, start planning early. Having a well-considered exit strategy can help you successfully market your business and achieve a better price. Can you demonstrate that the business is on the up? Are profits growing and are there opportunities for expansion? Will the business be able to survive without you? Do you have mangers who will preserve relationships with clients, customers and suppliers long after you have gone? If the business relies on you, a buyer may be less willing to pay all the cash up front. You might be asked to  sign up to an “earn-out” requiring you to stay working in the business to achieve certain profit forecasts that will then dictate the price you ultimately receive.

What preparations do I need to make? Be prepared to get your house in order. A buyer will want to carry out due diligence on your business. They want to understand what they are buying and what risks and liabilities they may be taking on. To secure a good price, you will need to provide healthy financials, detailed information on your staff, properties and assets and evidence of compliance with key legislation. Your advisers can help you prepare this information and present it in the best light. Starting this process early can also help identify issues that need rectifying. You may choose to disclose major issues to the buyer upfront to avoid price chipping later on.

What will the legal process entail? Once you have found a buyer, you will enter into heads of terms. These provide a “route map” for the transaction by setting out the key commercial terms. The buyer will then commence their due diligence. You should make sure the buyer has signed a confidentiality agreement before they begin this process so that they cannot misuse the information you provide. You will then enter into a detailed sale agreement negotiated by your lawyer. The buyer will ask for a series of protections in the sale agreement and your lawyers will be instrumental in helping you ensure that your liability is kept to a minimum and that you cannot be pursued for any claims after the sale.

If you would like to speak to someone about selling your business, please contact Lucy Freeman on 0121 710 5907 or lfreeman@wilkes.co.uk