SI 2009/1482 Real Estate Investment Trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009
Issuing department: HM Revenue and Customs
Abstract: These regulations amend Finance Act 2006, schedule 16, governing Real Estate Investment Trusts, so that property letting is excluded from the regime where it would fall in accordance with generally accepted accounting practice to be described as owner-occupied
Full text:
Made: 12 June 2009
Laid before the House of Commons: 15 June 2009
Coming into force: 6 July 2009
The Commissioners for Her Majesty's Revenue and Customs make the following Regulations in exercise of the power conferred on them by paragraph 14(b) of Schedule 16 to the Finance Act 2006:
Citation and commencement
1. These Regulations may be cited as the Real Estate Investment Trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009 and shall come into force on 6th July 2009.
Amendment of Schedule 16 to the Finance Act 2006
2. In Schedule 16 (excluded business and income) to the Finance Act 2006--
(a) for paragraph 3 substitute--
"3.--(1) Letting of property if the property would fall in accordance with generally accepted accounting practice to be described as owner-occupied.
(2) For the purpose of sub-paragraph (1), no account shall be taken of the fact that a property may fall to be described as owner-occupied by reason only of the provision of services to an occupant who--
(a) is in exclusive occupation of the property, and
(b) is not connected with a member of the group (within the meaning given by section 839 of ICTA)."
Bernadette Kenny
11th June 2009
Dave Hartnett
12th June 2009 Two of the Commissioners of Her Majesty's Revenue and Customs
Explanatory note (This note is not part of the Regulations)
Part 4 of the Finance Act 2006 sets out the structure of the Real Estate Investment Trusts regime and the types of activity and business that qualify for REIT status. Part 1 of Schedule 16 to that Act excludes certain classes of business from qualifying.
Regulation 2 replaces paragraph 3 of Schedule 16 to the Finance Act 2006, so that property letting is excluded from the regime where it would fall in accordance with generally accepted accounting practice to be described as owner-occupied.
A full and final Impact Assessment has not been produced for this instrument as a negligible impact on the private or voluntary sectors is foreseen.
Explanatory memorandum to the real estate investments trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009, SI 2009/1489
1. This explanatory memorandum has been prepared by HM Revenue and Customs and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instrument
2.1 The regulations amend legislation governing Real Estate Investment Trusts (REITs). REITs do not pay Corporation Tax on their property rental profits. Proposals were made to HMRC that were designed to circumvent the exclusion of owner occupied property from the regime. The intention of the REIT regime was that owner occupied properties were not to be included in the tax exempt part of the REIT, this instrument reinforces the original intention of the regime
3. Matters of special interest to the [Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments]
3.1 None
4. Legislative Context
4.1 Schedule 16 Part 3 to the Finance Act 2006 gives HM Revenue and Customs power to amend Schedule 16. (Schedule 16 details the types of business and income that are excluded from the REIT regime). The power in Schedule 16 has not been used before, (the Schedule was previously amended by Finance Act 2007 Section 52 and Schedule 17 paragraph 15).
4.2 The instrument is being made so that the regime excludes owner occupied properties as was intended by the original legislation.
5. Territorial Extent and Application
5.1 This instrument applies to all of the United Kingdom.
6. European Convention on Human Rights
The Economic Secretary to the Treasury has made the following statement regarding Human Rights:
In my view the provisions of the Real Estate Investment Trust (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009 are compatible with the Convention rights.
7. Policy background
7.1 The REIT regime allows qualifying property rental companies to be exempt from Corporation Tax on the profits from their property rental business. On joining the regime there are conditions relating to the types of company and the nature of their business. One of the conditions is that owner occupied property is not included as part of the REITs tax exempt business.
7.2 Owner occupied properties were excluded from the regime in Schedule 16(3). This schedule, in part, relied on members of a group of companies not being allowed to let properties to other members of a group.
7.3 Proposals were made by groups that circumvented the exclusion of owner occupied properties so that properties could be let by one member of a group to another member of the group and be within the REIT regime. These proposals involved artificial de-grouping of part of the business with the effect that owner occupied properties were able to be within the tax exempt regime. As announced at PBR 2008 the Government has decided it is appropriate to counter such proposals.
8. Consultation outcome
8.1 The regulations have been informally shared with stakeholders and are available on the HMRC website, amendments have been made in the light of comments received.
8.2 The principal concern was in respect of intra group letting where the tenant was a third party. The regulations were amended to address this concern.
9. Guidance
9.1 The GREIT (Guidance on Real Estate Investment Trusts) manual will be amended and draft amendments shared with stakeholders.
10. Impact
10.1 An Impact Assessment has not been prepared for this instrument as there is no impact on business, charities or voluntary bodies.
11. Regulating small business
11.1 The legislation does not apply to small business.
12. Monitoring & review
12.1 None required.
13. Contact
Tony Linehan at HM Revenue and Customs Tel: 020 7147 0527 or email: tony.linehan@hmrc.gsi.gov.uk can answer any queries regarding the instrument.
Published date: 16/06/2009
Statutory instruments
Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009LNB News 02/06/2009 35
Published date: 2 June 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/Draft
Commencement date: 1 September 2009
Legislation affected: SI 1981/1518 revoked
Enabling power: Tribunals, Courts and Enforcement Act 2007, sections 30(1), (4), 31(2), (9), 37(1)(a), 38
Abstract: SI 2009/Draft: People can be appointed by the Secretary of State to decide Estate Agents Appeals on his behalf from 1 September 2009
Summary: Transfers the function of the Secretary of State to decide appeals under the Estate Agents Act 1979, section 7(1) to the First-tier Tribunal. Provides for persons appointed by the Secretary of State to decide Estate Agents Appeals on his behalf. Provides for proceedings which have started at the date of transfer to the First-tier Tribunal; new proceedings will be started in the First-tier Tribunal. In transferred cases the following provisions apply: a hearing which has already been commenced but not completed will need to be completed in the First-tier Tribunal but comprised of the same persons; directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the First-tier Tribunal; the First-tier Tribunal will be able to disapply Tribunal Procedure Rules, or apply provisions of the Estate Agent (Appeals) Regulations 1981, to Estate Agents Appeals as they applied to such appeals prior to transfer, to ensure that proceedings are dealt with fairly; time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and the First-tier Tribunal will only be able to make a costs order if and to the extent that the Secretary of State could have made such an order.
Real Estate Investment Trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009
LNB News 16/06/2009 93
Published date: 16 June 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/1482
Commencement date: 6 July 2009
Legislation affected: Finance Act 2006
Enabling power: Finance Act 2006, schedule 16, paragraph 14(b)
REIT -
Abstract: SI 2009/1482: Owner-occupied property lettings not able to qualify for REITs corporation tax exemption
Summary: Amend the Finance Act 2006 to reinforce the original intention of the regime, namely that owner-occupied properties were not to be included in the tax exempt part of the Real Estate Investment Trusts (REITs).
REITs do not pay Corporation Tax on their property rental profits. Proposals were made to HMRC that were designed to circumvent the exclusion of owner occupied property from the regime.
Replace the Finance Act 2006, schedule 16, paragraph 3 so that property letting is excluded from the regime where in generally accepted accounting practice it would be described as owner-occupied.
Land Registration (Proper Office) Order 2009
LNB News 15/06/2009 32
Published date: 15 June 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/1393
Commencement date: 1 October 2009
Legislation affected: SI 2008/3201 revoked
Enabling power: Land Registration Act 2002, section 100(3)
Abstract: SI 2009/1393: New list of designated offices for land registration applications
Summary: Designates particular offices of Land Registry as the proper office for the receipt of specified descriptions of application under the Land Registration Act 2002. Replaces the Land Registration (Proper Office) Order 2008, SI 2008/3201.
Combines the Land Registry's Birkenhead (Old Market) and Birkenhead (Rosebrae) into one office: Land Registry, Birkenhead Office, to operate out of the Rosebrae office.
Replaces the Land Registry's Nottingham (East) and Nottingham (West) Offices will with one office: Land Registry, Nottingham Office. The Nottingham Office will initially be administered from the current sites.
Articles
I want to break free
LNB News 29/05/2009 50
Published date: 28 May 2009
Author: Natasha Dunn
Journal name: Solicitors Journal
Journal date: 19 May 2009
Journal citation: Solicitors Journal, 19 May 2009, 9
Jurisdiction: England; Wales
Abstract: Solicitors Journal, 19 May 2009: What practitioners acting for both landlord and tenant need to know about break rights.
Summary: Looks at the factors practitioners should consider when acting for both landlords and tenants looking to gain an advantage from their break rights. As the recession deepens, both landlords and tenants are turning their attention to existing break rights. Tenants are tempted to view them as the answer to their problems while landlords will seek to achieve the opposite objective.
Property / landlord and tenant: nothing going on but the rent
LNB News 15/06/2009 55
Published date: 15 June 2009
Author: James Driscoll
Journal name: New Law Journal
Journal date: 12 June 2009
Journal citation: 159 NLJ 848
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7373: When is it reasonable to make a possession order?
Summary: Where a landlord seeks to recover possession against a tenant who has been in occupation of premises for substantial periods of time the interest of the tenants may well prevail however compelling the landlord's case may be. In order to recover possession against a tenant with security of tenure, it is a fundamental principle that the ground for possession must be proved and also, crucially, that it is reasonable to make an order. The issue may be particularly complex where the landlord seeks possession by offering alternative accommodation to the tenant as opposed to alleging a beach of the tenancy agreement.
Third time lucky for the assignee
LNB News 03/06/2009 43
Published date: 2 June 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 109
Jurisdiction: England; Wales
Related cases: Landlord Protect Ltd v St Anselm Development Company Ltd [2009] EWCA Civ 99, [2009] 08 EG 115 (CS)
Abstract: Estates Gazette, 16 May 2009: When it is reasonable to refuse conditions or attach a consent to assign to a lease?
Summary: Examines the case of Landlord Protect Ltd v St Anselm Development Company Ltd, which addressed the issue of whether it is reasonable to refuse conditions or to attach a consent to assign. The Court of Appeal concluded that the prospective assignee could pull out of the deal, with the judge ruling that it is clear that a landlord can reasonably refuse consent or impose conditions so as to prevent its contractual rights under the lease from being prejudiced by an assignment or sublease. Further, it will not normally be reasonable for a landlord to impose a condition that enhances its rights under the lease.
Journals
Damage nature at your peril
LNB News 03/06/2009 42
Published date: 2 June 2009
Author: Caroline May and Charlotte Peterson
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 108
Jurisdiction: England; Wales
Related legislation: SI 2009/153
Abstract: Estates Gazette, 16 May 2009: How will the Environmental Damage (Prevention and Remediation) Regulations affect property developers, owners and occupiers?
Summary: Examines the changes brought about by the Environmental Damage (Prevention and Remediation) Regulations 2009, which came into force on 1 March. Under the new regime, active steps have to be taken to prevent damage to the environment and to make restitution for any damage caused. The regulations impose obligations on parties that 'operate or control economic activities' which includes property developers as well as owners and occupiers carrying out commercial activities.
Complete debacle
LNB News 03/06/2009 40
Published date: 2 June 2009
Author: Hamish Lal
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 106
Jurisdiction: England; Wales
Abstract: Estates Gazette, 16 May 2009: The problems that can arise if 'practical completion' is not defined expressly in building contracts.
Summary: Argues that 'practical completion' needs to defined expressly in building contracts so as to avoid the complications that can arise over its exact meaning. One misconception is that a building can contain patent defects, but so long as these are 'trifling' practical completion can be certified. Of greater concern to developers and purchasers, however, is if there are non-trifling patent defects but practical completion has been certified.
A passion for progress
LNB News 03/06/2009 37
Published date: 2 June 2009
Author: Tina Desai
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 102
Jurisdiction: England; Wales
Abstract: Estates Gazette, 16 May 2009: How far has the outgoing president of the RICS achieved his term objectives?
Summary: Discusses the progress the outgoing president of the RICS, Peter Goodacre, has made during his 2008/9 term. When he became president of the RICS Goodacre has three objectives in mind, creating a new associate membership grade, improving relationships with universities and establishing the RICS in India. With members in 146 the RICS is a 'truly global brand', but the RICS has been criticised for placing too much emphasis on overseas members.
Calling for back-up
LNB News 03/06/2009 25
Published date: 2 June 2009
Author: Michaela Ulrici
Journal name: Legal Week
Journal date: 30 April 2009
Journal citation: Legal Week, 30 April 2009, 26
Jurisdiction: England; Wales; Netherlands
Abstract: Legal Week, 30 April 2009: How innovative ING rescue could provide a solution to banks facing issues with mortgage-backed securities portfolios.
Summary: Looks at the Dutch state's rescue of ING and explains the innovative structure of the acquisition. The plan, the first of its kind, allows ING to take a large portion of 'toxic' assets off its balance sheet so that no further downgrade is needed to calculate the market value of these assets. On the other hand, the Dutch state's acquisition of an 80% interest in ING's Alt-A bond portfolio does not increase Dutch national debt.
Waiving goodbye
LNB News 02/06/2009 32
Published date: 27 May 2009
Author: Alison Rivers
Journal name: Estates Gazette
Journal date: 28 March 2009
Journal citation: Estates Gazette, 28 March 2009, 92
Jurisdiction: England; Wales
Abstract: Estates Gazette, 28 March 2009: Forfeiture will be uppermost in landlords' minds in an economic downturn, but the law is in dire need of reform.
Summary: Considers a recent Court of Appeal decision that has highlighted the idiosyncrasies of the law of forfeiture and the pressing need for reform. In today's economic climate, increasing numbers of tenants are going into administration. Once administrators are appointed, a statutory moratorium prevents forfeiture from taking place without the permission of the administrators or the court.
A responsibility that is best avoided
LNB News 26/05/2009 23
Published date: 25 May 2009
Author: Michelle Stevens-Hoare and Dianne Boniface
Journal name: Estates Gazette
Journal date: 2 May 2009
Journal citation: Estates Gazette, 2 May 2009, 95
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 2 May 2009: What steps can landlords take to minimise utility bills on occupied properties?
Summary: Looks at the potential liabilities landlords face for utility bills on vacant properties. In the current economic climate, tenant insolvency, the forfeiture of leases as a result of rent arrears or tenants not wanting to renew existing leases coupled with a shortage of new tenants, mean that landlords are left with more empty properties in their portfolio. In the course of managing their portfolio a landlord may contact the supplier to ensure that minimum charges arise while a property is unoccupied, but they may not always take such steps.
Continue reading
Issuing department: HM Revenue and Customs
Abstract: These regulations amend Finance Act 2006, schedule 16, governing Real Estate Investment Trusts, so that property letting is excluded from the regime where it would fall in accordance with generally accepted accounting practice to be described as owner-occupied
Full text:
Made: 12 June 2009
Laid before the House of Commons: 15 June 2009
Coming into force: 6 July 2009
The Commissioners for Her Majesty's Revenue and Customs make the following Regulations in exercise of the power conferred on them by paragraph 14(b) of Schedule 16 to the Finance Act 2006:
Citation and commencement
1. These Regulations may be cited as the Real Estate Investment Trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009 and shall come into force on 6th July 2009.
Amendment of Schedule 16 to the Finance Act 2006
2. In Schedule 16 (excluded business and income) to the Finance Act 2006--
(a) for paragraph 3 substitute--
"3.--(1) Letting of property if the property would fall in accordance with generally accepted accounting practice to be described as owner-occupied.
(2) For the purpose of sub-paragraph (1), no account shall be taken of the fact that a property may fall to be described as owner-occupied by reason only of the provision of services to an occupant who--
(a) is in exclusive occupation of the property, and
(b) is not connected with a member of the group (within the meaning given by section 839 of ICTA)."
Bernadette Kenny
11th June 2009
Dave Hartnett
12th June 2009 Two of the Commissioners of Her Majesty's Revenue and Customs
Explanatory note (This note is not part of the Regulations)
Part 4 of the Finance Act 2006 sets out the structure of the Real Estate Investment Trusts regime and the types of activity and business that qualify for REIT status. Part 1 of Schedule 16 to that Act excludes certain classes of business from qualifying.
Regulation 2 replaces paragraph 3 of Schedule 16 to the Finance Act 2006, so that property letting is excluded from the regime where it would fall in accordance with generally accepted accounting practice to be described as owner-occupied.
A full and final Impact Assessment has not been produced for this instrument as a negligible impact on the private or voluntary sectors is foreseen.
Explanatory memorandum to the real estate investments trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009, SI 2009/1489
1. This explanatory memorandum has been prepared by HM Revenue and Customs and is laid before Parliament by Command of Her Majesty.
2. Purpose of the instrument
2.1 The regulations amend legislation governing Real Estate Investment Trusts (REITs). REITs do not pay Corporation Tax on their property rental profits. Proposals were made to HMRC that were designed to circumvent the exclusion of owner occupied property from the regime. The intention of the REIT regime was that owner occupied properties were not to be included in the tax exempt part of the REIT, this instrument reinforces the original intention of the regime
3. Matters of special interest to the [Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments]
3.1 None
4. Legislative Context
4.1 Schedule 16 Part 3 to the Finance Act 2006 gives HM Revenue and Customs power to amend Schedule 16. (Schedule 16 details the types of business and income that are excluded from the REIT regime). The power in Schedule 16 has not been used before, (the Schedule was previously amended by Finance Act 2007 Section 52 and Schedule 17 paragraph 15).
4.2 The instrument is being made so that the regime excludes owner occupied properties as was intended by the original legislation.
5. Territorial Extent and Application
5.1 This instrument applies to all of the United Kingdom.
6. European Convention on Human Rights
The Economic Secretary to the Treasury has made the following statement regarding Human Rights:
In my view the provisions of the Real Estate Investment Trust (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009 are compatible with the Convention rights.
7. Policy background
7.1 The REIT regime allows qualifying property rental companies to be exempt from Corporation Tax on the profits from their property rental business. On joining the regime there are conditions relating to the types of company and the nature of their business. One of the conditions is that owner occupied property is not included as part of the REITs tax exempt business.
7.2 Owner occupied properties were excluded from the regime in Schedule 16(3). This schedule, in part, relied on members of a group of companies not being allowed to let properties to other members of a group.
7.3 Proposals were made by groups that circumvented the exclusion of owner occupied properties so that properties could be let by one member of a group to another member of the group and be within the REIT regime. These proposals involved artificial de-grouping of part of the business with the effect that owner occupied properties were able to be within the tax exempt regime. As announced at PBR 2008 the Government has decided it is appropriate to counter such proposals.
8. Consultation outcome
8.1 The regulations have been informally shared with stakeholders and are available on the HMRC website, amendments have been made in the light of comments received.
8.2 The principal concern was in respect of intra group letting where the tenant was a third party. The regulations were amended to address this concern.
9. Guidance
9.1 The GREIT (Guidance on Real Estate Investment Trusts) manual will be amended and draft amendments shared with stakeholders.
10. Impact
10.1 An Impact Assessment has not been prepared for this instrument as there is no impact on business, charities or voluntary bodies.
11. Regulating small business
11.1 The legislation does not apply to small business.
12. Monitoring & review
12.1 None required.
13. Contact
Tony Linehan at HM Revenue and Customs Tel: 020 7147 0527 or email: tony.linehan@hmrc.gsi.gov.uk can answer any queries regarding the instrument.
Published date: 16/06/2009
Statutory instruments
Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009LNB News 02/06/2009 35
Published date: 2 June 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/Draft
Commencement date: 1 September 2009
Legislation affected: SI 1981/1518 revoked
Enabling power: Tribunals, Courts and Enforcement Act 2007, sections 30(1), (4), 31(2), (9), 37(1)(a), 38
Abstract: SI 2009/Draft: People can be appointed by the Secretary of State to decide Estate Agents Appeals on his behalf from 1 September 2009
Summary: Transfers the function of the Secretary of State to decide appeals under the Estate Agents Act 1979, section 7(1) to the First-tier Tribunal. Provides for persons appointed by the Secretary of State to decide Estate Agents Appeals on his behalf. Provides for proceedings which have started at the date of transfer to the First-tier Tribunal; new proceedings will be started in the First-tier Tribunal. In transferred cases the following provisions apply: a hearing which has already been commenced but not completed will need to be completed in the First-tier Tribunal but comprised of the same persons; directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the First-tier Tribunal; the First-tier Tribunal will be able to disapply Tribunal Procedure Rules, or apply provisions of the Estate Agent (Appeals) Regulations 1981, to Estate Agents Appeals as they applied to such appeals prior to transfer, to ensure that proceedings are dealt with fairly; time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and the First-tier Tribunal will only be able to make a costs order if and to the extent that the Secretary of State could have made such an order.
Real Estate Investment Trusts (Amendment of Schedule 16 to the Finance Act 2006) Regulations 2009
LNB News 16/06/2009 93
Published date: 16 June 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/1482
Commencement date: 6 July 2009
Legislation affected: Finance Act 2006
Enabling power: Finance Act 2006, schedule 16, paragraph 14(b)
REIT -
Abstract: SI 2009/1482: Owner-occupied property lettings not able to qualify for REITs corporation tax exemption
Summary: Amend the Finance Act 2006 to reinforce the original intention of the regime, namely that owner-occupied properties were not to be included in the tax exempt part of the Real Estate Investment Trusts (REITs).
REITs do not pay Corporation Tax on their property rental profits. Proposals were made to HMRC that were designed to circumvent the exclusion of owner occupied property from the regime.
Replace the Finance Act 2006, schedule 16, paragraph 3 so that property letting is excluded from the regime where in generally accepted accounting practice it would be described as owner-occupied.
Land Registration (Proper Office) Order 2009
LNB News 15/06/2009 32
Published date: 15 June 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/1393
Commencement date: 1 October 2009
Legislation affected: SI 2008/3201 revoked
Enabling power: Land Registration Act 2002, section 100(3)
Abstract: SI 2009/1393: New list of designated offices for land registration applications
Summary: Designates particular offices of Land Registry as the proper office for the receipt of specified descriptions of application under the Land Registration Act 2002. Replaces the Land Registration (Proper Office) Order 2008, SI 2008/3201.
Combines the Land Registry's Birkenhead (Old Market) and Birkenhead (Rosebrae) into one office: Land Registry, Birkenhead Office, to operate out of the Rosebrae office.
Replaces the Land Registry's Nottingham (East) and Nottingham (West) Offices will with one office: Land Registry, Nottingham Office. The Nottingham Office will initially be administered from the current sites.
Articles
I want to break free
LNB News 29/05/2009 50
Published date: 28 May 2009
Author: Natasha Dunn
Journal name: Solicitors Journal
Journal date: 19 May 2009
Journal citation: Solicitors Journal, 19 May 2009, 9
Jurisdiction: England; Wales
Abstract: Solicitors Journal, 19 May 2009: What practitioners acting for both landlord and tenant need to know about break rights.
Summary: Looks at the factors practitioners should consider when acting for both landlords and tenants looking to gain an advantage from their break rights. As the recession deepens, both landlords and tenants are turning their attention to existing break rights. Tenants are tempted to view them as the answer to their problems while landlords will seek to achieve the opposite objective.
Property / landlord and tenant: nothing going on but the rent
LNB News 15/06/2009 55
Published date: 15 June 2009
Author: James Driscoll
Journal name: New Law Journal
Journal date: 12 June 2009
Journal citation: 159 NLJ 848
Jurisdiction: England; Wales
Abstract: New Law Journal, Issue 7373: When is it reasonable to make a possession order?
Summary: Where a landlord seeks to recover possession against a tenant who has been in occupation of premises for substantial periods of time the interest of the tenants may well prevail however compelling the landlord's case may be. In order to recover possession against a tenant with security of tenure, it is a fundamental principle that the ground for possession must be proved and also, crucially, that it is reasonable to make an order. The issue may be particularly complex where the landlord seeks possession by offering alternative accommodation to the tenant as opposed to alleging a beach of the tenancy agreement.
Third time lucky for the assignee
LNB News 03/06/2009 43
Published date: 2 June 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 109
Jurisdiction: England; Wales
Related cases: Landlord Protect Ltd v St Anselm Development Company Ltd [2009] EWCA Civ 99, [2009] 08 EG 115 (CS)
Abstract: Estates Gazette, 16 May 2009: When it is reasonable to refuse conditions or attach a consent to assign to a lease?
Summary: Examines the case of Landlord Protect Ltd v St Anselm Development Company Ltd, which addressed the issue of whether it is reasonable to refuse conditions or to attach a consent to assign. The Court of Appeal concluded that the prospective assignee could pull out of the deal, with the judge ruling that it is clear that a landlord can reasonably refuse consent or impose conditions so as to prevent its contractual rights under the lease from being prejudiced by an assignment or sublease. Further, it will not normally be reasonable for a landlord to impose a condition that enhances its rights under the lease.
Journals
Damage nature at your peril
LNB News 03/06/2009 42
Published date: 2 June 2009
Author: Caroline May and Charlotte Peterson
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 108
Jurisdiction: England; Wales
Related legislation: SI 2009/153
Abstract: Estates Gazette, 16 May 2009: How will the Environmental Damage (Prevention and Remediation) Regulations affect property developers, owners and occupiers?
Summary: Examines the changes brought about by the Environmental Damage (Prevention and Remediation) Regulations 2009, which came into force on 1 March. Under the new regime, active steps have to be taken to prevent damage to the environment and to make restitution for any damage caused. The regulations impose obligations on parties that 'operate or control economic activities' which includes property developers as well as owners and occupiers carrying out commercial activities.
Complete debacle
LNB News 03/06/2009 40
Published date: 2 June 2009
Author: Hamish Lal
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 106
Jurisdiction: England; Wales
Abstract: Estates Gazette, 16 May 2009: The problems that can arise if 'practical completion' is not defined expressly in building contracts.
Summary: Argues that 'practical completion' needs to defined expressly in building contracts so as to avoid the complications that can arise over its exact meaning. One misconception is that a building can contain patent defects, but so long as these are 'trifling' practical completion can be certified. Of greater concern to developers and purchasers, however, is if there are non-trifling patent defects but practical completion has been certified.
A passion for progress
LNB News 03/06/2009 37
Published date: 2 June 2009
Author: Tina Desai
Journal name: Estates Gazette
Journal date: 16 May 2009
Journal citation: Estates Gazette, 16 May 2009, 102
Jurisdiction: England; Wales
Abstract: Estates Gazette, 16 May 2009: How far has the outgoing president of the RICS achieved his term objectives?
Summary: Discusses the progress the outgoing president of the RICS, Peter Goodacre, has made during his 2008/9 term. When he became president of the RICS Goodacre has three objectives in mind, creating a new associate membership grade, improving relationships with universities and establishing the RICS in India. With members in 146 the RICS is a 'truly global brand', but the RICS has been criticised for placing too much emphasis on overseas members.
Calling for back-up
LNB News 03/06/2009 25
Published date: 2 June 2009
Author: Michaela Ulrici
Journal name: Legal Week
Journal date: 30 April 2009
Journal citation: Legal Week, 30 April 2009, 26
Jurisdiction: England; Wales; Netherlands
Abstract: Legal Week, 30 April 2009: How innovative ING rescue could provide a solution to banks facing issues with mortgage-backed securities portfolios.
Summary: Looks at the Dutch state's rescue of ING and explains the innovative structure of the acquisition. The plan, the first of its kind, allows ING to take a large portion of 'toxic' assets off its balance sheet so that no further downgrade is needed to calculate the market value of these assets. On the other hand, the Dutch state's acquisition of an 80% interest in ING's Alt-A bond portfolio does not increase Dutch national debt.
Waiving goodbye
LNB News 02/06/2009 32
Published date: 27 May 2009
Author: Alison Rivers
Journal name: Estates Gazette
Journal date: 28 March 2009
Journal citation: Estates Gazette, 28 March 2009, 92
Jurisdiction: England; Wales
Abstract: Estates Gazette, 28 March 2009: Forfeiture will be uppermost in landlords' minds in an economic downturn, but the law is in dire need of reform.
Summary: Considers a recent Court of Appeal decision that has highlighted the idiosyncrasies of the law of forfeiture and the pressing need for reform. In today's economic climate, increasing numbers of tenants are going into administration. Once administrators are appointed, a statutory moratorium prevents forfeiture from taking place without the permission of the administrators or the court.
A responsibility that is best avoided
LNB News 26/05/2009 23
Published date: 25 May 2009
Author: Michelle Stevens-Hoare and Dianne Boniface
Journal name: Estates Gazette
Journal date: 2 May 2009
Journal citation: Estates Gazette, 2 May 2009, 95
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 2 May 2009: What steps can landlords take to minimise utility bills on occupied properties?
Summary: Looks at the potential liabilities landlords face for utility bills on vacant properties. In the current economic climate, tenant insolvency, the forfeiture of leases as a result of rent arrears or tenants not wanting to renew existing leases coupled with a shortage of new tenants, mean that landlords are left with more empty properties in their portfolio. In the course of managing their portfolio a landlord may contact the supplier to ensure that minimum charges arise while a property is unoccupied, but they may not always take such steps.
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