The end of free movement: what SMEs need to know
Sport stars, actors and entertainers alike have grown accustomed to “living” in the public eye, but if there is one aspect many wish to keep truly private it is their home.
The process of finding and purchasing your home should be an exciting time, but can often be a daunting process for any buyer. For those in the public eye, the added concern of media intrusion can detract further from this experience. But, is this possible to avoid and are non-disclosure agreements (“NDAs”) the answer?
NDAs (also referred to as Confidentiality Agreements) can clearly define which information is confidential and restrict the perimeters of disclosure. For example, an NDA could oblige a seller to keep the buyer’s identity and the negotiations confidential, but allow the seller to disclose that information to their lawyer, provided it is in connection with the sale. In other words, an NDA can allow someone in the public eye to enter into negotiations and purchase a house, whilst reducing the fear of this becoming public knowledge.
To be effective, the NDA must be proposed and agreed at the outset, before the information is known or indeed disclosed. An NDA that is proposed after the information has been disclosed to a third party is not worth the paper it is written on.
Well, that depends on the question. If you wish to strengthen your position and increase the likelihood of protecting your privacy where possible, NDAs can be very helpful. If you wish to guarantee privacy or keep certain information hidden for good, NDAs are less effective.
NDAs act as a strong deterrent. The parties are well aware of the information that is to be regarded as confidential and have expressly agreed to keep it that way. Indeed in a property transaction that is and should remain non-contentious, it is in all parties’ interests to adhere to the NDA. If they do so, the buyer gets their home, the seller gets their sale and the agents get their commission – everybody wins.
The problem arises when NDAs are breached. As with all contracts, the first remedy is damages. Though the prospect of damages may act as a further deterrent, damages cannot reinstate the information’s confidential nature. There may also be the possibility of seeking an injunction, preventing further disclosure. Though, again, this may not pack a punch. Put simply, once the information is out there, it is out there.
As with all property transactions, some information will always become public. For example, on completion of the purchase you must register the change of ownership at the Land Registry. In doing so, the identity of the owner will be placed on the public register (albeit a small fee is payable if you wish to view this information). An NDA cannot prevent this.
An alternative is to purchase the property as a company, though this has tax implications. It is also becoming increasingly possible to lift the “corporate veil”, with people with significant control or “beneficial owners” being recorded and this information being made accessible. Greater transparency is also being enforced where overseas companies are used to purchase UK property, with the Land Registry already taking action and the Registration of Overseas Entities Bill being recently published.
If implemented at the right time, NDAs can act as an effective deterrent. The confidentiality concerns are clearly highlighted and the pathway to a successful and smooth transaction is made clear. Though they cannot keep some information confidential for good, they can keep information such as the buyer’s identity confidential during the most stressful time, when the purchase and finances are being negotiated.
In addition, it is important for the representing lawyer to achieve an understanding with all parties, to ensure that professionalism is paramount and the NDA is adhered to. Kingsley Napley have acted for those in the public eye throughout its history and truly understands the value of privacy.
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