For many years Samuel Phillips Law Firm has retained a strong and successful working relationship with...
Samuel Phillips Law Firm's family law department is widely recognised as one of the leading teams of experts in Newcastle.
Starting or growing a business can give the owners an enormous sense of pride and satisfaction.
Samuel Phillips Law Firm can count a number of north east educational establishments as regular clients. From this experience we understand the language and priorities of the education sector and can therefore deliver bespoke solutions that precisely meet the needs of the organisation.
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In addition to offering our business clients legal advice and support our team has the experience and capability to offer a range of complimentary services.
Of course you don’t need to be an existing client to benefit from the support of the Samuel Phillips business support team. We’d be delighted to talk to you and understand how we can help you.
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The right to advertise a business is an aspect of the goodwill of the business, and goodwill is an asset which transfers upon completion of the sale. Your buyer cannot therefore advertise the business without your consent prior to completion. In view of this you should consider first of all writing to your buyer asserting your ongoing rights in the goodwill, and asking him to refrain from holding himself out as the proprietor of the business. If this fails to have any effect then you could potentially pursue a court action against the buyer for passing himself off as the owner of your business and breaching your intellectual property rights. However it would be preferable to try to negotiate a solution with your buyer if you still intend the sale of the business to proceed.
At law, if a partner retires from a partnership then this brings the partnership to an end. However a standard Partnership Agreement will usually displace this presumption, to allow the partnership to continue notwithstanding the retirement of a single partner, as it is recognised that the remaining partners will usually want to carry on the business after someone leaves. The Partnership Agreement should also provide for what happens to the business after one partners retirement, for example in relation to decision-making procedures and the valuation of the remaining partners shares in profits and partnership assets. However the partnership will not be able to endure if a partner retires from a partnership of two, irrespective of the contents of the Partnership Agreement, as there can be no partnership of one. Instead the remaining partner will become a sole trader.
A Limited Liability Partnership (LLP) is essentially a hybrid of a company and a partnership. Therefore converting an existing partnership into an LLP would involve establishing a new legal entity separate from the individual partners, which would then assume liability for the partnerships obligations and debts. However in order to for such limited liability to be possible, the partners would need to register and file accounts with Companies House. On the other hand, the partners would remain individually liable to pay tax on their share of partnership profits, as is the case with an ordinary partnership. This contrasts with the position of a company, where the company pays corporation tax (although shareholders in the company might pay income tax on their dividends).
If your tenant were to set up a company to run his business then this could constitute an assignment of his lease to the company. Under most standard commercial leases the tenant can only assign with the landlords consent, and the landlord will be entitled to impose reasonable conditions on the assignment. If this is the case you should therefore insist on the tenant obtaining your formal consent to an assignment of his lease if he wants the company to run his business. If you don’t, and you knowingly allow the companys occupation of the premises (for example by accepting rent from the company), then you could find yourself at risk if the tenant defaults on the rent in future. Under such circumstances, you may have to seek recovery of any arrears from the company, and the company may not have the assets to settle them.
These depend largely on the content of the lease. A standard commercial lease will usually grant the landlord the right to forfeit the lease if any one of a number of specified insolvency events occurs (for example the appointment of a receiver). This would allow you to recover possession of the premises and install a new tenant. At the same time you could seek to prove in the tenants insolvency for any arrears of rent. If however forfeiture is unsuitable or not permitted by the lease, then you will need to consider negotiating a solution with the tenants receiver or administrator. This could involve the lease being voluntarily disclaimed (surrendered), or alternatively you might have to buy out the tenants interest in the premises, depending on market conditions.
You might be able to register your business name as a trademark. In order to qualify as a registrable trademark your business name must be distinctive and not merely descriptive of the goods or services you supply (although nor can it be deceptive by giving a false impression of what your business offers). You will also need to take care to ensure that the business name does not infringe someone else’s intellectual property rights. Alternatively, even if you cannot register your business name as a trademark, then it may still be possible to bring an action in passing off against a rival business which is using your business name, if that business is causing you loss by giving the impression that the goods or services it is selling are actually yours.
February 1, 2019
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