Nee Hao Magazine kicks start a new feature which is about legal queries specific to the British Chinese and East Asian culture. We have asked Solicitor Leon Chua from Maxwell Alves Solicitors of London, to answer selected questions submitted by our readers.
Do you have a legal question or dilemma? If you do, then send your query to [email protected] If your question is interesting we will ask Solicitor Leon Chua to answer it. We will not reveal your name or any personal details. All answers in this feature are from a fully qualified solicitor, but only acts as a generic guidance as every case is bespoke.
Here we have 2 legal queries, one from a student who wishes to have indefinite leave as she has been in the UK for a number of years, and the other is from a Chinese take away boss who has changed his mind about selling his business and wonders whether he can return the deposit without consequences.
First legal query is from a student who has been studying in the UK for a number of years, she is from China.
I am a student studying in UK from Mainland China. I have been here for 10 years. I wish to apply for PR but I overstayed my visa a few years ago by 30 days due to a mistake. Would this affect my application?
Solicitor Leon Chua answers…
To get indefinite leave to remain (PR) using the long residence route, you need to have 10 years continuous lawful stay in the UK. The fact that you have at some stage overstayed means that the 10 years continuous residence is broken and you are not qualified for the 10 year stay application. It does not matter whether it was 30 days or 1 day. However, we note that your overstay was the result of a mistake. We need to understand the nature and the reason of having a mistake. We have dealt with an application in which our client has 3 gaps including (a) overstay and (b) left the country for too long. The reason for his overstay was a careless mistake made by his school. We are pleased to say that we have been successful in this application on behalf of our client. Although it does complicate matters, it does not necessary mean that you will not be successful with your application.
Second legal query is from a Chinese take away boss who has changed his mind on selling his business.
I am a take away owner, I have recently agreed to sell my take away. We agreed verbally and the person wishing to buy it paid me £2,000 deposit in cash, and then a date was decided to go to the solicitor to sort out the legalities. I have since changed my mind and do not wish to sell anymore. Can I just give back the money without any repercussions? Nothing was signed.
Solicitor Leon Chua answers…
It seems that the first issue that you have to look at is whether you have to continue with the conveyancying process so that you are bound to conclude the sale. The answer is no. Under section 2 of the Law of Property (Miscellaneous) Provisions Act 1989, any transaction relating to land / property must be in writing, incorporate all terms and be signed by the parties. This essential requirement is missing and hence you have no obligation to complete the sale.
In terms of the arrangement with the £2000 deposit, it will be dependent on the precise agreement on under what circumstances that the deposit is to be forfeited or to be refunded. In general, parties are allowed to enter into contract based on whatever terms and conditions that they can agree. It may be the case that if you simply change your mind, you may return the deposit to him or may be to return double. It all depends on the intention of the parties at the time when your verbal agreement was made. On one practical point, evidence is important to decide the intention of the parties at the time when contract was entered. If evidence is not clear and that the dispute goes to court, it is important to bear in mind that the burden of proof lies with the person who asserts. For example, if the buyer says that it was agreed that double the deposit is returnable when you change your mind, he will have the burden to proof that this was the case.
Leon Chua, Solicitor
Maxwell Alves Solicitors
75 Farringdon Road
DDI: +44 (0)20 7632 6954
Mob: +44 (0)75 3018 2211
E-mail: [email protected]