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Business Law

From May, 2012 a new body, the Property Services Regulatory Authority (PSRA) has been set up to regulate the provision of property services in Ireland.

This new body covers auctioneers/estate agents, property management service providers, and letting agents.

licensed-property-service-provider

Anyone providing property services in Ireland requires a licence and is leaving themselves open to up to 5 years in prison and an unlimited fine if they provide property services without one.

 

A separate licence is required for each property service.

 

There are a number of different application forms depending on whether you are a sole trader, independent contractor, company or partnership.

 

The Property Services (Regulation) Act 2011 is the relevant piece of legislation which you can find at www.IrishStatuteBook.ie and the PSRA (www.NPSRA.ie ) have produced a booklet explaining the whole procedure together with the application forms and notes to help you with filling out the application.

 

Sole Trader/Independent Contractor Example

The following comprises the main requirements for a sole trader/independent contractor but is not comprehensive or exhaustive.

Please refer to the guide here. ..Guide to Becoming a Licensed PSP

(Solicitors Dublin)

Your application would be as a sole trader or independent contractor (depending on whether you have employees or not) and the main requirements are as follows:

  • A completed and signed Application Form (PSRA/LA 3)
  • Evidence of your qualification(s) or necessary experience (see below)
  • Evidence that the required level of Professional Indemnity Insurance, which covers both the employer and employees, is or will be available to you,
  • Accountants Report,
  • Tax Clearance Details,
  • Certificate of Business Name Registration (only required if you intend using a business name-it is not necessary to trade under a business name but if you choose to do so the business name will have to be registered),
  • Prescribed Licence Fee (€1,000),
  • Passport size photograph,
  • Compensation fund contribution of €200.

licensed-property-service-authority

 

The necessary experience required is that you have held an auctioneer’s licence for three out of the last five years.(This is not now the case-see the amendment below which points up the difference between the booklet published by PSRA and the published regulations covering the qualifications requirement)

The level of professional indemnity insurance cover which must be provided for is as follows:

“the amount insured for each and every claim (exclusive of defence costs)

must be at least twice the business’s annual fee turnover (exclusive of VAT)

in the previous fiscal year subject to a minimum cover of €500,000 (five

hundred thousand euro), with no limit on the number of claims in any one

year.”

Hopefully this article together with the guide above will give you a good understanding of what is now required to become a licensed property services provider in Ireland.

Update 18th June, 2012

The PROPERTY SERVICES (REGULATION) ACT 2011 (QUALIFICATIONS) REGULATIONS 2012 sets out the qualifications requirements for applicatnts for the various licences and were published on 5th June 2012.

These regulations appear to different significantly from the booklet published by the PSRA as the regulations now give some discretion to the PSRA in relation to the applicant proving he/she has attained the minimum qualification requirements.

Here is an extract:

“minimum qualification requirements”, in relation to an application for a
licence, means—
(a) the applicant has, in respect of the subject areas specified in the Schedule, successfully completed a course of studies which has led to the
awarding to him or her, by a nationally recognised awarding body or
awarding bodies, of 120 ECTS compatible higher education and training credits at levels 6 to 10 of the framework of qualifications (in this
definition referred to as the “Irish framework”),

(b) the applicant has, in another jurisdiction, in respect of the subject
areas specified in the Schedule, successfully completed a course of
studies which has led to the awarding to him or her, by a body or
bodies in that jurisdiction that is or are equivalent to a nationally
recognised awarding body or awarding bodies, credits, under a framework in that jurisdiction that is equivalent to the Irish framework,
equivalent to levels 6 to 10 of the Irish framework,
(c) the applicant has lawfully engaged in, and for periods amounting
together to not less than 3 years of the 5 year period immediately
preceding the making of the application, the provision of the property
service for which he or she is seeking the licence, or
(d) the applicant has such other qualifications or experience, or both,
which, although not falling (or fully falling) within paragraph (a), (b)
or (c), satisfies the Authority that the applicant is suitable to provide
the property service for which he or she is seeking the licence

The PSRA application form for a sole trader/independent contractor now refers to “evidence of my engagement full time in the provision of Property Services for 3 of the last 5 years” which is a significant difference from page 13 of the PSRA booklet which states:

In the case of a Sole Trader or Independent Contractor evidence that the applicant was the holder of a licence or permit issued under the Auctioneers and House Agents Acts 1947 to 1973 for three of the five years immediately preceding the making of the application.

By Terry Gorry Google+

This piece will give you some essential information about copyright law in Ireland, copyright infringement, what is copyright and so forth.

Infringement of copyright is common nowadays, particularly with the growth of publishing on the internet leading to image copyright breach amongst other common breaches.

copyright-infringement

What is copyright?

 

Copyright is the legal term, which describes the rights given to authors/creators of certain categories of work.

 

 

Copyright protection extends to the following works:

 

1.original literary, dramatic, musical or artistic works sound recordings, films,broadcasts, cable programmes

2.the typographical arrangement of published editions,computer programmes,

3.original databases.

 

The owner of copyright is the author and within the Copyright and Related Rights Act, 2000 the author has a very specific definition

 

21.—In this Act, “author” means the person who creates a work and includes:

(a) in the case of a sound recording, the producer;

(b) in the case of a film, the producer and the principal director;

(c) in the case of a broadcast, the person making the broadcast or in the case of a broadcast which relays another broadcast by reception and immediate retransmission, without alteration, the person making that other broadcast;

(d) in the case of a cable programme, the person providing the cable programme service in which the programme is included;

(e) in the case of a typographical arrangement of a published edition, the publisher;

(f) in the case of a work which is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken;

(g) in the case of an original database, the individual or group of individuals who made the database; and

(h) in the case of a photograph, the photographer

 

copyright-law

 

For example a photographer is the owner in the case of a photograph.

 

However, as copyright is a form of property, the right may be transferred to someone else, for example, to a publisher. Where an employee in the course of employment creates the work, the employer is the owner of the copyright in the work, unless an agreement to the contrary exists.

 

Copyright is a property right and the owner of the work can control the use of the work, subject to certain exceptions. The owner has the exclusive right to prohibit or authorise others to undertake the following:

 

1. copy the work

2. perform the work

3. make the work available to the public through broadcasting or recordings

4. make an adaptation of the work.

 

Copyright takes effect as soon as the work is put on paper, film, or other fixed medium such as CD-ROM, DVD, Internet, etc.

 

No protection is provided for ideas while the ideas are in a persons mind; copyright law protects the form of expression of ideas, not the ideas themselves.

Rights related to Copyright

Rights are not restricted just to the creators of the works themselves but certain other rights may apply.

 

For example, the record company has certain rights in a sound recording of the performance of a song, in addition the author(s) of the lyrics and the music will also have certain copyrights. Similarly performing artists have certain rights in their performances. The legislation also provides for moral rights, such as the right to be acknowledged as the author of a particular work and also the right to object to derogatory treatment of that work.

 

The primary legislation governing copyright in Ireland is the Copyright and Related Rights Act, 2000 (No. 28 of 2000)

 

Copyright Protection

 

In Ireland, there is no registration procedure for owners of a copyright work.

 

Basically the act of creating a work also creates the copyright, which then subsists in the physical expression of the work.

 

Copyrights are protected by law and illegal use of these rights can be contested in the Courts, the technical term for this misuse is infringement.

 

The legislation provides for criminal offences and consequently infringers could face both civil liability and criminal convictions.

 

Professional advice should be sought by copyright owners with regard to the options and the remedies available where infringement of their work occurs.

 

It is most important that the originator of a work can show subsequently when the work and the consequential copyright were created as it may be necessary to commence or defend infringement proceedings, at some later stage.

 

One way of doing this is to deposit a copy of the work with an acknowledged representative who may be a bank or solicitor in such a way as to allow the date and time of the deposit to be recorded or notarised.

copyright-protection

Alternatively, one may send a copy of the work to oneself by registered post (ensuring a clear date stamp on the envelope), retaining the original receipt of posting and leaving the envelope containing the copyright work unopened thus establishing that the work existed at that date and time.

The Copyright Notice and Symbol ©

It is important to show that copyright is claimed in a work. Works should be clearly marked to show who the copyright owner is and the date from which copyright is claimed.

 

The internationally recognised symbol © is normally used to indicate that a work is protected by copyright.

 

Example:

 

© Copyright Business and Legal 2009.

 

Examples of more detailed copyright notices may be found in published versions of literary works. The inclusion of a copyright notice does not legally constitute proof of ownership, but does indicate a claim to copyright, which may prove useful if it is necessary to defend that claim or to deter possible infringement.

 

It is usually necessary to obtain permission to use copyright material. Persons with a copy of a work can look for an indication on the work regarding copyright. This can assist making contact with the author/ original creator of the work in order to obtain their permission to use the work for any act, which is prohibited by copyright legislation.

 

Length of Copyright Protection

 

The duration of copyright protection varies according to the format of the work. In respect of the following works the term of protection is:

Literary, dramatic, musical and artistic works

Copyright protection expires 70 years after the death of the author/creator

 

Films

Copyright protection expires 70 years after the last of the following dies, the director, the author of the screenplay, the author of the dialogue of the film, or the author of the music composed for use in the film.

 

Sound recordings

Copyright protection expires 50 years after the sound recording is made or if it is made available to the public then 50 years from the date it was made available to the public.

 

Broadcasts

Copyright protection expires 50 years after the broadcast is first transmitted

 

The typographical arrangement of a published edition

Copyright protection expires 50 years after the date it is first made available to the public

 

Computer-generated works

Copyright protection expires 70 years after the date it is first made available to the public

 

Chapter 3 of the Copyright and Related Rights Act, 2000 (No. 28 of 2000) deals in greater detail with the duration of copyright in Ireland.

 

Benefits of Copyright Protection

 

Copyright protection provides a vital incentive for the creation of many intellectual works. Without copyright protection, it would be easy for others to exploit these works without paying any royalties or remuneration to the owner of the work. Copyright therefore encourages enterprise and creates a favourable climate to stimulate economic activity.

 

Copyright protection provides benefits in the form of economic rights which entitle the creators to control use of their literary and artistic material in a number of ways such as making copies, performing in public, broadcasting, use on-line, etc. and to obtain an appropriate economic reward. Creators can therefore be rewarded for their creativity and investment.

 

Copyright also gives moral rights to be identified as the creator or author of certain kinds of material (known as the paternity right), and object to the distortion and mutilation of it. An author’s right to object to the modification or derogatory action in relation to his or her work is known as an integrity right. Chapter 7 of the Copyright and Related Rights Act, 2000 (No. 28 of 2000) deals in greater detail with moral rights applicable in Ireland.

By Terry Gorry Google+

Franchising can be a great way to start your own business.And the failure rate for franchises is much less than for non franchise start-ups.

franchise-agreement

Franchise Opportunities

But you still need to do your homework and assess any franchise opportunities presented to you and ask and be satisfied about many questions which you might not think about in your enthusiasm to start your own business.

 

The franchise agreement from a major franchisor will generally be on a take it or leave it basis.

 

That is to say the franchise agreement will not be negotiable as the franchisor can’t afford to negotiate individual franchise agreements with each franchisee.

 

But that does not mean that you should not ask the right questions and satisfy yourself that the situation that arises when there is a dispute or the franchisee is incapacitated or dies is provided for.

 

Here are thirty questions you should ask and satisfy yourself about before signing a franchise agreement.

 

1. What law governs the franchise agreement?

 

Many successful franchises in Ireland are not Irish companies………..the law applicable for an international franchise may well be another jurisdiction.

 

2. What happens if the franchisee dies?

 

Is there provision in the franchise agreement for the franchisor to provide staff to run the business to keep the show on the road?

 

3. Is there a renewal option when the franchise agreement ends?

 

If there is are you happy to commit to sign a franchise agreement in say, 10 years time, having no opportunity to see the new agreement? What are the terms?

 

4. Can you sell the business? Can the franchisor veto your purchaser?

 

5. When the franchise agreement is terminated is there a non compete clause? For how long?

 

6. If the franchise agreement is terminated and the premises is yours, how much will it cost to debrand?

franchise-ireland

7. Is the training and system manual up to date? When was it last updated?

 

8. Is there an advertising fee payable? Can it be justified? Is there marketing spend on the brand?

 

9. Is there a management services fee? How is it calculated?

 

10. Does the franchisee have to inform the franchisor of any improvements he has made to the system?

 

11. Is the franchisor the owner of the trademark? And if not will he provide a licence to the franchisee for the use of any trademarks and intellectual property?

 

12. Who will own the premises? Will the franchisor provide any advice in relation to location and premises? Is this provided for in the franchise agreement?

 

13. How long has the franchisor been carrying on business? How many company owned outlets?

 

14. If the franchisor is supplying goods is there a credit limit? Will a minimum stock of products be imposed? Is a vehicle required? Will it have to be branded?

 

15. What books and records will the franchisee have to supply to franchisor?

 

16. Will a confidentiality agreement be required?

 

17. Who will pay for initial and ongoing training?

 

18. Is there a territory? Is it exclusive? Is it stipulated in the franchise agreement?

 

19. How long will the franchise agreement last? Is it compliant with competition law requirements?

 

20. Is training provided for staff? Is it ongoing?

 

21. Is more than 10% of the initial fee for use of the name and trademark? Can this be justified?

 

22. What initial stock will be needed? Will the franchisee have to purchase equipment, stationery from the franchisor?

franchise-opportunities

23. What ongoing obligations has the franchisor as per the franchise agreemtent in relation to problem solving, management, finance and marketing, provision of staff in an emergency, research and development and maintaining and improving the manual?

 

24. Will franchisee be required to advertise locally?

 

25. Does the franchisor have the right to communicate with the franchisee’s customers?

 

26. Has the franchisor the legal right to purchase the franchise from the franchisee? On what terms? Is that in the franchise agreement?

 

27. Is the franchisor entitled to appoint a manager if the franchisee dies or is incapacitated?

 

28. Who is entitled to terminate the franchise agreement? On what terms? What events will bring this about?

 

29. What will happen when a dispute arises? Is arbitration provided for in the franchise agreement? Litigation?

 

30. Does the franchisee have to enter into any restrictive covenants in the franchise agreement?

 

When looking at a franchise agreement with a view to buying either a new franchise or an existing franchise, a close perusal of the franchise agreement with these questions foremost in your mind is a good starting point.

 

But only a starting point. You will need to engage a solicitor before signing any franchise agreement but these questions may assist you in deciding whether to go that far or not.

By Terry Gorry Google+

The need for a written partnership agreement in any partnership is crucial.

Because if you do not have one, then the Partnership act 1890 will govern your relations with your partner.

partnership-law-ireland

Partnerships are an important part of business life in Ireland for a number of reasons.

 

1) any time 2 or more people come together to carry on business and do not form a company the law assumes they are in partnership.They are then subject to partnership law which dates back to the Partnership Act of 1890.

 

2) Professionals such as doctors,lawyers,dentists,vets,accountants are not allowed to form companies.

 

3) There are advantages over forming a company from the point of view of tax, accounting and disclosure requirements.

Unlike a company a partnership is not a separate legal identity which means that partners have unlimited liability, unlike directors or shareholders in companies.

 

And partnerships do not have to go through any registration process to be formed.

 

The downside is that each partner is liable for the losses of his co-partner in carrying on the partnership business, even where the other partner has defrauded clients of the business.

partnership-law-ireland1

What is a Partnership?

Partnership Act 1890 defines a partnership and essentially states that where 2 or more people carry on business with a common view of profit, then a partnership exists.

 

A written partnership agreement is not necessary.

 

And where 2 or more companies come together to carry on business to make a profit then unless they have set up a special purpose joint venture company a partnership will be deemed to exist.

 

However it is important to note that Co-ownership of property alone does not mean that a partnership exists; there must be a sharing of any profits between partners.

Generally the maximum number of partners allowed is 20;however there are exceptions made for solicitors and accountants.

Why is it important to have a written partnership agreement?

 

Because if there is not either an implied or express agreement the partnership will be considered in the eyes of the law a partnership at will and will be governed by an act from 1890….which in most cases is wholly inappropriate for modern business.

 

For example without a written partnership agreement the 1890 Partnership act will mean that

1)there is no right to expel a partner

2)any partner may dissolve the partnership

3)if a partner dies, the firm will automatically dissolve

4)there is no power to retire under the Partnership act.

 

These are pretty crucial reasons for partners to set down their agreement and understanding in a written partnership agreement.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
member-of-the-law-society