Category: leases
“Game, set but not quite match” following the C of A decision re rents in administration – 11 Stone Buildings
‘Many commercial landlords will be delighted with the Court of Appeal’s unanimous decision in Jervis v Pillar Denton Limited (Game Station) and Others [2014] EWCA Civ 180, overruling the decisions in Goldacre and Luminar. The Court of Appeal held that, applying the Lundy Granite principle, the question of whether quarterly rent due under a lease was an administration expense or a provable debt depended not on whether the rent fell due during the period of the administration, but whether the property had been used for the benefit of the administration. Sarah Clarke gives the background to these cases, sets out the Game appeal decision and highlights its consequences as well as the real concerns for officeholders.’
11 Stone Buildings, February 2014
Source: www.11sb.com
Getting section 146 notices right: Anders v Haralambous – Hardwicke Chambers
‘Despite the 146 notice having been around, in one form or another, for more than 130 years, it is still causing as much angst as ever. The High Court appeal in Anders v Haralambous [2013] EWHC 2676 (QB), in which John de Waal QC acted for the Respondent, highlights the added complication of the interaction between s146 and the determination of breach pursuant to s168 of the Commonhold and Leasehold Reform Act 2002.’
Hardwicke Chambers, 4th February 2014
Source: www.hardwicke.co.uk
Fixed term tenancies: How hard can it be for a social landlord? – Hardwicke Chambers
‘In November 2010 the Housing Minister Grant Shapps identified what he perceived to be a problem with social housing:
“For far too long in this country there has been a lazy consensus about the use of social housing, which has left one of our most valuable resources trapped in a system that helps far fewer people than it should. This out-of-date approach has seen waiting lists rocket and is unfair to people who genuinely need social homes. They trap existing tenants in poverty, often in homes that aren’t suitable for them.”
After consultation the Government came up with some proposed solutions which involved a radical re-think of the way social housing was to be allocated and administered. The ideas included: flexible tenancies, fairer allocations, greater mobility, fairer provision for homeless, affordable rents and tenants’ powers of scrutiny.’
Hardwicke Chambers, 12th February 2014
Source: www.hardwicke.co.uk
Cramaso LLP v Ogilvie-Grant (Earl of Seafield) and others – WLR Daily
Cramaso LLP v Ogilvie-Grant (Earl of Seafield) and others [2014] UKSC 9; [2014] WLR (D) 64
‘A contracting party could be liable in negligence for a representation made in pre-contractual negotiations which induced the conclusion of the contract by someone other than the original representee.’
WLR Daily, 12th February 2014
Source: www.iclr.co.uk
Cramaso LLP (Appellant) v Ogilvie-Grant, Earl of Seafield and Others (Respondents) (Scotland) – Supreme Court
Supreme Court, 12th February 2014
Helman v Keepers and Governors of the Possessions, Revenues and Goods of the Free Grammar School of John Lyon – WLR Daily
‘Where the tenant of a long lease became bankrupt, a notice claiming to exercise the right of enfranchisement, pursuant to Part I of the Leasehold Reform Act 1967, served in the name of the bankrupt tenant by a receiver, appointed by a sub-chargee of the property, was invalid as by the time the notice was served the tenant was no longer the tenant as his tenancy had vested in his trustee in bankruptcy.’
WLR Daily, 22nd January 2014
Source: www.iclr.co.uk
Guarantor was released from obligations when alterations to property were made without its consent, Appeal Court confirms – OUT-LAW.com
‘The guarantor of an insolvent commercial tenant cannot be held liable for outstanding obligations if changes were made to the lease without its consent which had the “potential” to increase the burden on the guarantor, the Court of Appeal has confirmed.’
OUT-LAW.com, 23rd January 2014
Source: www.out-law.com
Buzzoni and others v Revenue and Customs Comrs – WLR Daily
Buzzoni and others v Revenue and Customs Comrs [2013] EWCA Civ 1684; [2014] WLR (D) 13
‘Whether property disposed of by way of gift was enjoyed to the entire or virtually entire exclusion of any benefit to the donor by contract or otherwise, and whether it constituted property “subject to a reservation” within the meaning of section 102(1)(b) of the Finance Act 1986 for the purposes of inheritance tax under the Inheritance Act 1984, depended not on whether the donor had obtained a benefit from the gifted property but whether the donee’s enjoyment of that property remained exclusive. If the benefit to the donor had no impact on, was irrelevant to and made no or virtually no difference to the donee’s enjoyment, the donee’s enjoyment was to the entire or virtually entire exclusion of any benefit to the donor and, therefore, the gifted property would be an exempt transfer and not subject to inheritance tax.’
WLR Daily, 19th December 2013
Source: www.iclr.co.uk
Don’t Think Twice, It’s All Right (To Manage) – NearlyLegal
‘The right to manage provisions in Commonhold and Leasehold Reform Act 2002 have been an incredibly fertile source of litigation. Thanks Parliament. No, really, thanks a lot. One reason might be the drafting of the legislation itself (as J has said, you could never accuse it of being user friendly) The challenges have focused on the two key elements – the qualifying criteria (or what I am loosely calling “qualifying criteria”) and the procedural requirements. The judicial trend in respect of both has been in favour of allowing the right to manage to be acquired, so far as possible (Exhibit 1 for qualifying criteria: Gala Unity v Ariadne Road; Exhibit 2 for procedure: Avon Freeholds v Regent Court RTM).’
NearlyLegal, 16th December 2013
Source: www.nearlylegal.co.uk
Breaking bad – Hardwicke Chambers
“The serving of a bad or defective notice has produced a wealth of litigation over the years. The fact that no-one has been misled, confused or in any way disadvantaged has never deterred those who want to take the point, particularly where the stakes are high. And, they are usually not higher where commercial leases are concerned and the tenant wants to break the lease. Where there may be grotesquely disproportionate and serious consequences for the party (or its adviser) who gets it wrong, a range of different responses has evolved in order for the courts to produce a more just outcome.”
Hardwicke Chambers, 4th November 2013
Source: www.hardwicke.co.uk
Rent recovery after exercising a break clause – New Square Chambers
“A tenant’s option to determine a commercial lease (a ‘break clause’) is a common feature of the modern landlord and tenant relationship. As a result of the weak economy and the ability of tenants to determine unilaterally an unfavourable lease on terms, there have recently been a number of reported decisions concerning the disputed exercise of break clauses. The typical interests in conflict have been described in Canonical UK Ltd v TST Millbank LLC [2012] EWHC 3710 (Ch) by Vos J (para 3): ‘This is a hard case for both sides. The tenant company … needs to know if it has successfully broken the lease because its future business depends on using its resources elsewhere. The landlord in these poor economic times seeks to use any argument it properly can to keep its building tenanted.'”
Full story (PDF)
New Square Chambers, 31st October 2013
Source: www.newsquarechambers.co.uk
High Court decision is a reminder of the dangers of a lengthy holding over period followingon lease expiry, says expert – OUT-LAW.com
“A recent High Court decision should act as a reminder to both landlords and
tenants that the frequent practice of the tenant continuing in occupation of
commercial premises (holding over) after the expiry of some leases can lead to
unexpected consequences, an expert has said.”
OUT-LAW.com, 18th October 2013
Source: www.out-law.com
Flats less risky – NearlyLegal
“At least less risky for property investors. That is the basis of the Upper Tribunal’s decision in Voyvoda v Grosvenor West End Properties, which we have managed to miss reporting because of the Summer break.”
NearlyLegal, 3rd September 2013
Source: www.nearlylegal.co.uk
“Back to the Future” – The Retrospective Variation of Leases of Flats under the Landlord and Tenant Act 1987 – Tanfield Chambers
“Sometimes the draftsman gets it wrong. Sometimes his only mistake is to fail to predict the future. Either way a landlord can face a serious shortfall if the combined percentages of service charges payable under the leases for the block do not add up to 100%. While at first blush, the landlord’s shortfall is the tenants’ windfall, defective leases can seem a much less attractive prospect if the result is that the landlord is reluctant to provide services.”
Full story (PDF)
Tanfield Chambers, 27th July 2013
Source: www.tanfieldchambers.co.uk
DV3 RS Ltd Partnership v Revenue and Customs Comrs – WLR Daily
DV3 RS Ltd Partnership v Revenue and Customs Comrs [2013] EWCA Civ 907; [2013] WLR (D) 311
“Where a vendor contracted to sell a chargeable interest to a company and the company made a sub-sale to a partnership (of which the company was a member), both contracts being completed at the same time with sequential transfers, the partnership, as taxpayer, acquired a chargeable interest liable to stamp duty land tax.”
WLR Daily, 25th July 2013
Source: www.iclr.co.uk
Court of Appeal overturns tax tribunals’ findings in favour of SDLT avoidance scheme – OUT-LAW.com
“The Court of Appeal has ruled against a stamp duty land tax (SDLT) avoidance scheme involving the interaction of the sub-sale and partnership rules, overturning earlier decisions by the First Tier and Upper Tax Tribunals.”
OUT-LAW.com, 30th July 2013
Source: www.out-law.com
Giving tenants a break – Hardwicke Chambers
“A recent case in the Chancery Division is the latest in a series concerning payment of rent as a condition of exercising a break clause: Marks & Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2013] EWHC 1279; [2013] 22 EG 92. In this series of cases, tenants have sought to overcome the apparent unfairness of paying quarterly rent due in advance as a condition of exercising a break clause part way through a quarter, leading to an overpayment of rent when compared pro rata to the period of actual occupancy.”
Hardwicke Chambers, 15th July 2013
Source: www.hardwicke.co.uk
Property tribunals combine in new first-tier chamber – Law Society’s Gazette
“A new consolidated property tribunal came into existence today with a single set of procedural rules aimed at simplifying the process.”
Law Society’s Gazette, 1st July 2013
Source: www.lawgazette.co.uk
