New companies must consider numerous issues, such as whether to buy a freehold or lease property, planning permission and their businesses structure, says David L P Salamons, consultant at Cubism Law Starting a business is more topical than ever, given the economic downturn and Gordon Brown's plans for a new state-backed bank to address the funding gap for new start-up companies. But there are many hurdles to overcome before pursuing your dream and sound legal advice is essential.
One of the first considerations is are you buying an existing business or opening a new one? If you're buying a new business you need to make sure that you are actually paying value for money. You will need to check their accounts, look at their turnover and then decide if it really represents your best opportunity of running a profitable business. Buying an existing business means that many of the existing systems necessary to running it will already be in place.
Starting your own business means no premium at entry and you can build it from the ground upwards although you must make sure that your passion does not blind you to sensible and professional advice on all matters outside your own specific areas of knowledge.
Leasehold or Freehold
You may well need premises from which to run your business, unless of course it is a home run business. You will need to decide whether to invest a large capital sum and buy a Freehold property or whether, like most start up businesses, you plan to take a leasehold property. The majority of commercial leases are within the terms of the Landlord and Tenant Act 1954. This means that at the end of the lease (bar a few exceptions) you will have the opportunity to renew your lease on acceptable terms. My advice is with start-up businesses, a relatively short lease within the terms of the act is quite beneficial, because if things don't work out and you can't sell the lease your liability will at the worst be limited to the term of the lease.
Planning
With your new premises, you will need to consider what kind of planning is required and check whether the premises that you are taking already has this use. These uses are prescribed by the Town & Country planning orders. It is vital not to take a lease of premises that has the wrong use as you will simply be unable to trade without planning permission and your lease may prohibit you from making a planning application.
Staff
If you are acquiring an existing business, you may be required to take over the existing staff. Be aware that you will also be taking over liability for all their rights of redundancy and unfair dismissal. You will need to look at how long they had been with the previous business and calculate what the cost to you might be. In general, when staffing a new business you will have a number of considerations but be wary of taking on too many employees until it is warranted by your new business as the cost both financially and emotionally of terminating people's employment is very high.
Business structure
You need to decide on the best and most suitable business structure. Examples are:
Ordinary partnership
This is a comparatively simple arrangement between two or more parties trading for profit. There are certainly some tax and financial advantages and it is quite flexible. There are also huge disadvantages insofar as the parties are personally liable, not only for each other but also for the business if it makes a loss. However, if you are in a simple business providing services with really no real exposure to any debts there are still advantages to using this business format
Limited Company
This is perhaps the most common business structure. The disadvantages are that it is perhaps not as flexible as a partnership or a sole trader and for customers of the business there are no partners or individuals who have personal liability towards them as in the case of a partnership. However it is a much safer proposition for the owners of the business as they do not have personal liability, except where they have taken on some form of guarantee, such as a lease or a personal guarantee to the bank
Limited Liability Partnership
This is a comparatively recent business structure that in effect has many of the flexible advantages of a partnership but also has many of the elements of protection for the proprietors contained in a limited company.
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