M221 Business Law LLB : Real Estate and Property Management

Then Jeremy Hunt, the former Health Secretary, offered junior doctors an 11 per cent rise in basic pay and new safeguards to prevent them working dangerously long hours, in an attempt stop the strike.

However, proposed industrial action and subsequent discussions failed to break the deadlock and the British Medical Association has described the new contract as “fundamentally unfair”.

With specific reference to Hogg v Dover College [1990] ICR 39 EAT, examine the legal implications of the proposed contract. 

Task 4

East London Tours has been contracted to provide an educational tour of Oxford University to a number of college students and teachers. The company provided a coach for the tour, but the driver, Ade was reckless and crashed the coach on the way to Oxford. The crash was due to Ade’s dangerous driving.

Ade had instructed all the passengers to fasten their seat belts before they set off. During the journey, however, Charles, one of the teachers, had unfastened his seat belt because he felt uncomfortable. Charles was severely injured in the crash. There was evidence to show that  his injuries would have been minor if he had worn his seat belt. Shanice, another teacher,  was uninjured in the accident and remained seated until the paramedics arrived. She told the paramedics that she wished to leave the coach to get some fresh air. The paramedics warned Shanice that for her own safety she must not leave the coach until they had examined her. Against this advice, she attempted to exit the coach. Because the passenger door was unusable due to the collision, she used the rear door, which had a very high step down to the ground. As she was stepping down she fell and suffered a broken hip. Both Charles and Shanice are planning to sue East London Tours (or their insurers). Advise them of any claims they may have and any defences they may be met with.

Answer:

Task 1

Real Estate and Property Management

Real estate is a land with all the structures on it. The law of real estate controls a person who owns and uses the land. However, real estate concept has a wide range of different legal regulations. Real estate may get regarded as commercial or residential property. Conversely, land can be sold or bought, but because of its value, various laws used to ensure that its transactions are appropriately done and documented. The national and local governments have regulations that govern the purpose for which the land can get operated (Faustma, 2017). Real estate laws encompass the right to use, possess, take pleasure in land and control the permanent structures attached to the land. These laws affect homeowners, tenants, landlords, brokers, and home buyers. In Stratford, there are state, federal, and municipality laws that govern real estate. These laws may include Landlord and Tenant Laws, Discloser Laws, Zoning and Land Use Laws, Implied Warranties and Contract Laws.

Landlord and Tenant Law (Implied Warranties)

There are various rights and responsibilities of landlords and tenants as far as Real Estate are concerned. Therefore, it is vital for each party to know their rights and the rights other parties involved. Landlords have rights that safeguard them from the damages on the rented property. They are entitled to collect rent from the tenants, but if the tenant failed to pay as per the contract, the landlord can evict the tenant with an ease. However, the process can sometimes be complicated. Additionally, landlords are liable for the damage caused by ordinary tear and wear ('on the record' 2014). On the other hand, tenants have the right to a livable habitat while the landlords are required to ensure that the apartments they rent to tenants are habitable. Moreover, tenants are legally protected from unfair eviction. Landlords cannot evict tenants before the expiry of the lease agreement unless if the tenant breaches a major term of the accord. Tenants can breach the contract by not paying the rent, causing serious damage to the property, engaging in activities that affect other tenants, performing illegal activities on the property, among others ('on the record' 2014).

Disclosure Laws

Disclosure laws are set of regulations dealing with the condition, property restrictions, and location. The seller of the real estate is required by law to faithfully tell the buyer about the problems in the property that the buyer cannot easily detect on his own. In any case, the seller fails to disclose such defects; he or she will be held liable for any damage that such defects may cause to the buyer, together with the cost of repairing the fault. Also, failure to disclose such faults could result in him being liable for punitive damages.

Zoning and Land Use

Zoning regulations control the kind of structures that are accepted in various plots, depending on where they are located in the municipality. The Local government laws and the state laws determine how the zoning and land use are imposed. Zoning laws dictate whether the property can be used for business purposes and sometimes the kind of business to be done on it (Ingber, 2014).

Contract Laws

Rental and Leases are lawfully binding contracts designed by either party and is acknowledged by both. However, these documents must be properly structured and include very rigid conditions in order to prevent any compromise. Common law requires an acceptance to reflect the terms of the offer for it to get legally recognized and accepted.

Task 2

Breach of Contract

There are various rules that control buyer’s performance in a business in relation to buying and selling goods. These rules may include payment, rejection, revocation and inspection (Easley, 2014). On the other hand, sellers also have rights to cure goods delivered to a buyer that are non-conforming. Additionally, there are various legal effects in a business where there is a contract. These legal effects may include breach of contract, remedies, the sale of non-conformity products, the sale of defective products, among others.  

In this case, there are many ways through which breach of contract has occurred. For instance, Rashid sold a nonconforming, defective products and stolen products to Naseem, which is contrary to what was in the agreement. It shows Rashid breached the contract in various ways. Once there is a breach of contract the law provides the buyer with two remedies. The buyer may cancel the sale and return the goods to the seller or he may retain the goods and ask for damages of the non-conformity (Fandl, 2016). If the informal attempts to solve the case between Naseem and Rashid failed, Naseem can decide to sue Rashid for the damages. The following are some of the remedies that Naseem might have against Rashid.

Remedies for Breach of Contract

Damages

Naseem can ask for payment of damages through (1) Compensatory damages, which aims at putting the injured person back to the position he was in before the breach. (2) Punitive damages, which are payments that the breaching person must make for full compensation of the injured person. These damages are meant for punishing the wrongful party for certain wrong actions. However, they are rarely awarded in the business contracts set up. (3) Nominal damages, which are the token given to the non-breaching party when a violation occurred, but there was no loss of funds to the non-breaching party was confirmed.

Restitution

Furthermore, non-breaching party has the right to cancel the contract and sue the breaching party for restitution if he had received any benefit from the affected party. Under contract remedy, restitution is a term used to refer to putting the injured back to the position he was in before the breach. On the other hand, cancellation of the contract stops the contract and relieves the parties involved of any responsibility under the accord.

Buying of the Defective Goods

Additionally, Rashid also supplied defective products to Naseem. According to Sales of Goods Act, if the buyer purchased a faulty item, he is entitled to compensation from the seller (Legislation.gov.uk, 2017). Generally, if what the seller supplied to the buyer does not reflect the implied or express terms of what the buyer ordered in terms of quality, quantity, fitness, or performance, the buyer is entitled to sue the seller. On the other hand, if the fault is a breach of a fundamental term of the deal, the buyer can treat it as an event that voids the agreement (Breach of Contract/Fraud, 2013). The buyer can decide to refuse or return goods that have a defect and the seller should refund the money. If the fault is a misrepresentation of what the seller promised, then he is obligated to either replace or repair the commodity (Anzivino, 2015).

Furthermore, the Sales of Goods Act provides a seller with three legal responsibilities to their customers, even if the product had a specific warranty.  First, sellers are required by law to sell commodities that are duly fit for their purpose. Importantly, the product that the buyer purchased must work correctly the way it was supposed to work. This is evident when Rashid sold watches that supposed work digitally but failed. He also supplied a Mercedes van that was not roadworthy; hence, he broke the law under Sales of Goods and should, therefore, compensate Naseem. Second, if the buyer bought a product based on the description, in this case, Mercedes van, the vehicle must be a Mercedes, not any other model. (Negligence/Fraud/Breach of Contract 2014).

Task 3

The Case between the Government and the Junior Doctors

When a contract of employment has been issued, the parties involved are bound by it and neither of them can vary it without the agreement of the other. If the employer tried to oblige a unilateral change to a contract, they will be breaching the contract. However, to decide whether they are breaching the contract or not, the following question may appear.

• are they changing a contract term
• If they are changing the contract term, does the employer have the right to unilaterally change it?

In contracts, the terms and the conditions bind both parties. Therefore, if the terms being altered are within the contract, it is advisable for employers to agree with their employees on the changes to avoid any potential claim of breach of contract (Linder Myers Solicitors, 2010). After knowing hat the contract terms that employer wishes to change are contractual, the next question is to determine if the employer has the right to unilaterally vary it.

However, in most cases, the contract between employers and employees shows that the employer has the right to unilaterally change terms and conditions. Although it is their right to change the terms and conditions, there is no guarantee that the tribunal will enforce such rights (Linder Myers Solicitors, 2010). The court is more likely to enforce the rights where the term is not too harsh. For example, even where the employer has the contractual right to change the terms, the court cannot allow 50 percent salary decrease of the employees, as that will be treated as a breach of contract.

Conversely, if the employer has no legal rights to change the contract unilaterally, they still have other options: First, the employer could get in agreement with the employee. It is where there is a voluntary agreement between the employer and the employee. However, if the employee can prove that they were put under threat, then it cannot be said that they agreed voluntarily (Linder Myers Solicitors, 2010). Second, the employee can use implied agreement by the conduct of the employee. It usually happens if the employer is trying to change the contract unilaterally by imposing new conditions and terms. But if the employee is dismissed because of refusing to accept the new contract, it could be unfair to either party depending on the circumstances. However, the dismissal can be unfair if the employer decided to impose the change without prior extensive consultation with the employee (Linder Myers Solicitors, 2010).

Therefore, if the junior doctors cannot agree with the changes that the government is making on the contract, then they can do the following:

• They can stay and do their work by protesting; thus, bringing the claim for breach of contract.
• If it is a fundamental breach of the contract, then the employees should resign and claim constructive dismissal
• If the proposed changes to the contract lead to fundamental alteration to their roles, they can carry on with their work under the new contract and claim for unfair dismissal in reference to the old contract.
• The employees can refuse to operate under the new terms, but this is likely to lead to sacking which may or may not be unjust depending on the circumstances.  

Task 4

Accidents happen every day, people get injured and the properties are lost or damaged. Every time there is an accident, the first question people as is: Who caused it? Such question gets addressed with the concepts of contributory and comparative negligence. The terms show that a party might contribute to negligence or can be comparatively negligent for their injuries.  

Injury Claims

For Charles and Shanice to have injury claims against East London Tours, they will have to prove that:

1. East London Tours owed a duty towards them. For example, they owed both Charles and Shanice reasonable care for their safety.
2. East London Tours breached its duty or failed to act reasonably. For example, if the driver was reckless.
3. If the accident caused by East London Tours driver was the actual cause of Both Charles and Shanice injuries.
4. East London Tours breach was the proximate cause of Charles and Shanice injuries.
5. Both Charles and Shanice suffered actual injuries that can make them claim for damages.

Contributory Negligence Defense

The defenses that both Charles and Shanice may have vary depending on the contributory negligence and comparative fault doctrines. Firstly, one of the most common uses of defense is to show contributory negligence on the side of the plaintiff. Being that Charles failed to fasten his belt, and Shanice failed to listen to what paramedics told her to do, it is evident that they contributed to their injuries. Technically, their negligence for their safety is the proximate cause of their injuries (Linder Myers Solicitors, 2010). Therefore Charles and Shanice can still be liable for causing their own injuries. On the other hand, Charles and Shanice could claim that their safety was to be guaranteed by East London Tours by providing a careful driver. They can claim that their injuries were as a result of reckless driving. Shanice could have used the right exit door from the coach while Charles could not havenot got injured if the driver could have driven carefully.

Comparative Negligence Defense

The policy of comparative negligence decreases the appellant’s recovery by the percentage in which the appellant is at fault of his injuries. The three major comparative negligence defenses include pure, modified and slight-gross (Linder Myers Solicitors, 2010). Under pure, Charles and Shanice can be awarded a certain percentage of the damages for which East London Tours is responsible. Other than that, under Modified, they can be awarded damages only if their negligence is the same or less than the East London Tours negligence. Lastly, under slight-gross, they can be awarded the damages only if their negligence is viewed as slight and the East London Tours negligence is viewed as Gross.

References:

Anzivino, R 2015, 'The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud', Marquette Law Review, 99, 1, pp. 179-207

Breach of Contract/Fraud. (2013). Business Torts Reporter, 25(8), 208-212.

Consumer Protection/Breach of Contract. (2016). Business Torts Reporter, 28(4), 85-88.

Easley, D. F. 2014. Florida's New Jury Instructions in Contract and Business Law Cases: A Primer. Florida Bar Journal, 88(4), 40-44.

Fandl, K. J. 2016. Cross-Border Commercial Contracts and Consideration. Berkeley Journal Of International Law, 34(2), 1-54.

Faustma, M. (2017). 5 Laws Every Commercial Real Estate Owner Needs To Know About. [online] Available at: https://5 Laws Every Commercial Real Estate Owner Needs To Know About/

Legislation.gov.uk. (2017). Sale of Goods Act 1979. [online] Available at: https://www.legislation.gov.uk/ukpga/1979/54/section/14 [Accessed 22 May 2017].

Linder Myers Solicitors. (2010). When is it lawful to change terms and conditions of employment? -. [online] Available at: https://www.lindermyers.co.uk/when-is-it-lawful-to-change-terms-and-conditions-of-employment/

Ingber, M. (2014). Protecting the Benefit of a Seller's Bargain in Real Estate Contracts. Touro Law Review, 30(3), 761-787.

Negligence/Fraud/Breach of Contract. (2014). Business Torts Reporter, 26(10), 273-276.

'on the record' 2014, Fairfield County Business Journal, 50, 5, p. 22,