Non-rated empty properties
LNB News 16/04/2009 35
Published date: 16 April 2009
Jurisdiction: UK
Related legislation: Local Government Finance Act 1988; SI 2009/353
Related digests: LNB News 04/03/2009 5
Abstract: Owners of empty properties with a rateable value of less than £15,000 are, since 1 April, not be liable for rates. Guy Roots, barrister talks to Evelyn Reid about the change in Government policy
Analysis: The Non-domestic Rating (Unoccupied Property) (England) Regulations 2009 (SI 2009/353) modify the 2008 Regulations so that the owners of empty non-domestic properties with a rateable value of less than £15,000 will not be liable for rates. This amendment could increase the tax relief to owners by £205 million in 2009/10.
Rating used to be a tax on the occupation of property and a way to fund local services says Roots, barrister and general editor of Ryde on Rating and the Council Tax Service. "The logic of not rating empty properties was that there was no revenue or rent out of which to pay rates and secondly, no services were being used by an empty building. The rating of unoccupied property was introduced in 1966 but limited to 50 per cent of the figure payable if the premises were occupied (with various exemptions). Last year the government changed the rules about the rating of unoccupied property," he says.
Since 1 April 2008, the amount payable was increased to 100 per cent. This stemmed from a recommendation made some years previously by the Lyons report on local government finance.
Roots says: "It was an unashamed tax-gathering change with no proper regard to the consequences for the property industry and in a context of a buoyant economy in which, generally speaking, reasonable quality buildings did not stand empty for very long. However, the recession has changed all that. Buildings standing empty generate no revenue out of which rates and other outgoings can be paid. In economic circumstances in which the prospects of letting an unoccupied building, however vigorous the marketing, are small, the requirement to pay full rates is very onerous and will depress the value of properties just when the government is concerned that values are dropping to the extent that it will cause depression.
"Furthermore it will act as a disincentive to investment in new buildings which would be unfortunate since when we eventually emerge from the recession, businesses will need the property industry to be ready to provide modern accommodation."
Section 45 of the Local Government Finance Act 1988 provides that owners of empty non-domestic properties are liable to pay non-domestic rates if certain conditions apply. One of those conditions is that the property must fall within a prescribed class. Regulation 3 of the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 prescribes that class as consisting of all buildings or parts of buildings except those listed in regulation 4. The list in regulation 4 includes properties whose rateable value is less than £2200 (Reg 4(g)). regulation 2 of the 2009 Regulations alters the operation of regulation 4(g) so that it excepts properties whose rateable value is less than £15,000. The arrangement is time-limited between 1 April 2009 and 31 March 2010.
The government says that the current economic climate makes it harder for owners to re-let, re-develop or sell empty properties and this measure will alleviate the short-term burden on owners of small empty non-domestic properties.
Roots says: "Properties with a rateable value of £15,000 is still pretty small, so in a typically ungenerous way something has been done which is not enough."
OFT study needed for regulation of estate agents
LNB News 14/04/2009 48
Published date: 14 April 2009
Jurisdiction: UK
Related digests: LNB News 18/03/2009 81
Abstract: Regulation of estate agents won't happen without an Office of Fair Trading (OFT) study and if that is the result of the OFT review then it would be worth the time and money involved in itself says John Northey, conveyancer at Blight Skinnard. Ben Brocherie reports.
Analysis: The comprehensive market study into home buying and selling was formally launched on 25 February 2009 and will consider: competition on price and quality between service providers; the prospects for new entry by, for example, internet property retailers; and the extent to which consumer interests are protected by the existing regulatory framework.
John Northey explained that as a high street conveyancer in a well established small law firm he is dismayed by the throttle hold that local estate agents have now developed over who is now referred to their practice. "Only 2/3 years ago we would expect to get a regular supply of local referrals but now, since the advent of referral fees, we get hardly any as we don't pay anybody for them.
"In the current slow down estate agents who have their own in-house conveyancing service or who otherwise get paid referral fees by panel firms are even more reluctant to send any work whatsoever to local High Street firms and are quite happy to see us wither on the vine."
He says it suddenly seems like estate agents are unwilling to recommend any independent solicitors who do not pay them fees and this is surely not at all in the interests of consumers of estate agency services, especially buyers.
He explained that he would like to see a "complete ban on estate agents referring buyers to their tied-in services such as conveyancing and surveying" as a result of the review. He conceded that it seems "fair in my view for agents to continue to refer their own vendors to their tied in conveyancing services as after all they are the customer/clients of the estate agent." However, he said "there is a clear potential conflict of interest for them to refer buyers to those same type of solicitors, that is, those who pay them. Buyers need independent advice and they won't get that from most panel or referral fee paying firms."
He hoped the important and financially undervalued role of solicitors in the conveyancing process would be acknowledged and that regulation will serve to "break the stranglehold which many agents in this area have on the conveyancing market, giving their buyers more freedom in their choice of solicitor."
However, Mr Northey feared that "as with the supermarkets, the watchdogs of the OFT will remove their fangs when faced with the views of the representatives of the big corporates of the estate agency world and will back off from causing them too much grief."
The OFT intends to complete the study before the end of 2009 and have invited comments and submissions on the issues raised by the study which should be emailed to: homebuyingandselling@oft.gov.uk.
Articles
The alienation effect
LNB News 23/04/2009 39
Published date: 22 April 2009
Author: Rachel Fletcher and Charlie Marlow
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 82
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: Issues to consider when transferring an interest in leasehold commercial property.
Summary: Looks at the rise in transferring an interest in leasehold commercial property. Landlords and tenants alike are preparing to weather the economic storm and many companies are reportedly trying to reduce and consolidate they space they occupy in an attempt to rationalise expenditure. The increasing focus upon the efficient use of premises means that many commercial tenants may be looking to transfer their interest in leasehold property.
Journals
To list or not to list – that's the question
LNB News 23/04/2009 38
Published date: 22 April 2009
Author: Lesley Webber
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: to List or Not to List - That's the Question
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: Why a delisting review could be a suitable alternative to judicial review of a listed property.
Summary: Suggests that a delisting review could be a better alternative than judicial review for owners opposing listing of their property. Under a delisting review, the Department for Culture, Media and Sport considers whether a building should have been placed on the statutory list. If it is alleged that the decision to list should not have been made because, for example, the wrong building was listed, a review can be sought within 28 days.
Behind the routine lies sloppiness
LNB News 23/04/2009 37
Published date: 22 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 85
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: The importance of having the correct safeguards in place when giving solicitors undertakings in conveyancing transactions.
Summary: Looks at the role of solicitors' undertakings in conveyancing transactions and the courts' willingness to enforce them. Solicitors' undertakings are legally enforceable and any solicitor or firm that becomes cavalier over ensuring that the proper safeguards are in place can land up in trouble. Undertakings provide a practical solution to what would otherwise be an insoluble problem at the heart of domestic house sale where the vendor has a subsisting mortgage.
History lesson in planning applications
LNB News 23/04/2009 42
Published date: 22 April 2009
Author: Robert Hill
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 79
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 11 April 2009: The importance of preserving the historic environment.
Summary: Explores the issues surrounding preservation of the historic environment following the abandonment of the Heritage Protection Bill. Despite abandoning the Bill, The government has reiterated its aim to continue the reform of heritage legislation. It proposes, among other actions, a new English planning policy statement that 'brings together planning policy and all aspects of the historic environment'.
The promised land
LNB News 22/04/2009 24
Published date: 22 April 2009
Author: Mark Pawlowski
Journal name: Solicitors Journal
Journal date: 7 April 2009
Journal citation: Solicitors Journal, 7 April 2009, 10
Jurisdiction: England; Wales
Related cases: Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776
Abstract: Solicitors Journal, 7 April 2009: Does ruling provide a return to orthodoxy in relation to proprietary estoppel?
Summary: Examines the House of Lords ruling in Thorner v Majors [2009], which overturned a Court of Appeal decision and re-instated the first instance ruling. The case looked at two issues, the quality of the assurance necessary to found a propriety estoppel claim and the degree of certainty required in identifying the property forming the subject matter of the estoppel claim. Although the House of Lords concluded that the relevant assurance had to be clear and unambiguous, the relevant representations in the instant case had to be viewed within their factual context.
Time to concede
LNB News 22/04/2009 20
Published date: 22 April 2009
Author: Mathew Ditchburn
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 138
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 4 April 2009: How the economic downturn is affecting the commercial relationship between landlord and tenant.
Summary: Looks at the changing commercial relationship between landlord and tenant in light of the economic downturn with an emphasis on rent concessions. If, six months ago, a retail tenant had approached its landlord to change its existing lease by halving the rent or paying rent monthly, it may well have been sent packing. However, nowadays more and more landlords are deciding that concessions might be better than the alternative, an insolvent tenant and a rental void.
The true test of reasonableness
LNB News 22/04/2009 33
Published date: 22 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 141
Jurisdiction: England; Wales; Scotland; Northern Ireland
Related cases: Royal Bank of Scotland plc v Victoria Street (No 3) Ltd [2008] EWHC 3052 (Ch), [2008] All ER (D) 280 (Oct)
Abstract: Estates Gazette, 4 April 2009: Conditions under which a landlord can withhold consent to an assignment.
Summary: Examines the Royal Bank of Scotland plc v Victoria Street (No 3) Ltd [2008] that looked at consent to an assignment, which can be refused if the tenant fails to prove the assignee's strength of covenant. Licences to assign are often a source of friction between landlord and tenant. Difficult market conditions add to the tensions and tenants will, wherever possible, seek to hold landlords responsible if a deal falls through.
Qualified success
LNB News 22/04/2009 42
Published date: 22 April 2009
Author: Thomas Jefferies
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 134
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 4 April 2009: Unresolved issues involving headleases in leasehold enfranchisement cases.
Summary: Looks at residential headleases and their role in recent collective enfranchisement cases. Headleases of residential blocks of flats and conversions have long been regarded as a convenient way for landlords to pass on the main obligations and risks of holding a reversionary interest. Typically, the headlease is subject to occupational underleases of the flats, and a nominal reversion of a few days is retained.
Tax in turbulent times
LNB News 21/04/2009 55
Published date: 21 April 2009
Author: Charles Beer and Eleanor Bosley
Journal name: Tax Journal
Journal date: 20 April 2009
Journal citation: Tax Journal, Issue 977, 7
Jurisdiction: England; Scotland; Northern Ireland; Wales
Related Digests: LNB News 19/01/2009 60; LNB News 17/02/2009 40; LNB News 10/03/2009 51; LNB News 31/03/2009 54
Abstract: Tax Journal, Issue 977: Corporate occupiers and landlords are considering their property in a new light.
Summary: Look at the challenges and opportunities for users and owners of business premises in the current market. In the light of increasing tenant distress, landlords are finding themselves with over-rented premises and increased risk of tenant default, which bring with them the spectre of vacant property with all its associated costs, not least empty property rates. Owner-occupiers too are facing tough decisions in relation to their portfolios.
Many questions but no good answers
LNB News 22/04/2009 1
Published date: 21 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 191
Jurisdiction: England; Wales
Related cases: Seahive Investments Ltd v Osibanjo [2008] EWCA Civ 1282, [2008] All ER (D) 215 (Nov)
Abstract: Estates Gazette, 7 March 2009: The importance of clarifying the law on lease forfeiture
Summary: Examines a recent Court of Appeal decision in Seahive Investments Ltd v Osibanjo [2008] which looked at the issue of lease forfeiture. Although, in current market conditions, landlords will consider carefully whether to forfeit a lease, it remains critically important to them and their advisors to know how to preserve forfeiture rights that may have arisen. While the government decides whether to implement the Law Commission’s recent proposals for an overhaul of this area of the law, reliance has to be placed upon the courts' interpretation.
Green credentials
LNB News 22/04/2009 4
Published date: 21 April 2009
Author: Simon Hartley and Mark Penson
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 189
Jurisdiction: England; Wales
Abstract: Estates Gazette, 7 March 2009: How will energy efficiency affect future rent reviews?
Summary: Looks at the role of energy efficiency in determining rent reviews. Regulations brought into force in 2007 introduced energy performance certificates (EPC), which rate the potential energy performance of a building. However, many rent review clauses require assumptions and disregards that create a hypothetical tenancy and, although, not required on rent review, the assumed hypothetical willing landlord will have a duty to provide an EPC if the regulations apply to the hypothetical premises.
Outcome of a volatile market
LNB News 22/04/2009 5
Published date: 21 April 2009
Author: Richard Brown and Stephen Downham
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 188
Jurisdiction: England; Wales
Abstract: Estates Gazette, 7 March 2009: Reasons behind the recent rise in rent review disputes.
Summary: Looks at the recent increase in rent review disputes and investigates the reasons behind this rise. One source of tension arises from the temptation for tenants, in a falling market, to delay rent reviews. The review process provides the tenant with extended credit against increases, often at advantageous rates of interest compared with an overdraft, while the landlord will want to hasten the process for those very reasons and, possibly, to exploit any advantage it may have over the tenant in the financing of a dispute.
Play with fire and you burn your fingers
LNB News 21/04/2009 31
Published date: 17 April 2009
Author: Ruth Boulton
Journal name: Estates Gazette
Journal date: 14 March 2009
Journal citation: Estates Gazette, 14 March 2009, 102
Jurisdiction: England; Wales
Abstract: Estates Gazette, 14 March 2009: How property sale deposits are affected by a bank collapse.
Summary: Explains why property professionals should protect themselves from losses if a deposit disappears on the collapse of a bank. The deposit is normally held by the seller or a nominated stakeholder for the period between exchange of contracts and completion. However, neither typical contracts nor the industry standard conditions of sale specifically cover the eventuality of a deposit being lost due to a bank failure.
More than words will be required
LNB News 17/04/2009 46
Published date: 16 April 2009
Author: Rachel Fletcher
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 113
Jurisdiction: England; Wales
Related legislation: Law of Property (Miscellaneous Provisions) Act 1989
Abstract: Estates Gazette, 21 March 2009: Oral tenancy agreements will be valid only in certain circumstances.
Summary: Explains the fact that agreements for leases were made orally does not automatically mean that they and/or any tenancies that they created are void. It is important to recognise the distinction between the statutory requirements for a valid lease and the statutory requirements for a valid agreement for lease. An agreement for lease must satisfy the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
The tools of the trade
LNB News 17/04/2009 45
Published date: 16 April 2009
Author: Nicholas Dowding and Roger Cohen
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 110
Jurisdiction: England; Wales
Abstract: Estates Gazette, 21 March 2009: Dilapidations claims are returning, so landlords and tenants need to be aware of the statutory cap on damages.
Summary: Reports dilapidations are back. Starved of opportunities for redevelopment, property owners are turning to asset management to maximise revenue. A proper understanding of claims for damages for dilapidations is an important part of an asset manager's toolkit.
A long-awaited answer partially given
LNB News 17/04/2009 52
Published date: 16 April 2009
Author: John Murdoch
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 117
Jurisdiction: England; Wales
Related legislation: Human Rights Act 1998
Related cases: Hunter v Canary Wharf Ltd; Hunter v London Docklands Development Corp
[1997] AC 655, [1997] 2 All ER 426
Abstract: Estates Gazette, 21 March 2009: A nuisance is normally open only to those with a legal interest in the affected property, but a recent case introduced a human rights aspect.
Summary: Explains a non-occupier who cannot recover damages for private nuisance may succeed under the Human Rights Act 1998 (HRA). It is almost inconceivable that an occupier could recover extra damages under the HRA. The House of Lords decision in Hunter v Canary Wharf Ltd settled a long-standing debate on the issue of who is entitled to bring an action in tort.
LNB News 16/04/2009 35
Published date: 16 April 2009
Jurisdiction: UK
Related legislation: Local Government Finance Act 1988; SI 2009/353
Related digests: LNB News 04/03/2009 5
Abstract: Owners of empty properties with a rateable value of less than £15,000 are, since 1 April, not be liable for rates. Guy Roots, barrister talks to Evelyn Reid about the change in Government policy
Analysis: The Non-domestic Rating (Unoccupied Property) (England) Regulations 2009 (SI 2009/353) modify the 2008 Regulations so that the owners of empty non-domestic properties with a rateable value of less than £15,000 will not be liable for rates. This amendment could increase the tax relief to owners by £205 million in 2009/10.
Rating used to be a tax on the occupation of property and a way to fund local services says Roots, barrister and general editor of Ryde on Rating and the Council Tax Service. "The logic of not rating empty properties was that there was no revenue or rent out of which to pay rates and secondly, no services were being used by an empty building. The rating of unoccupied property was introduced in 1966 but limited to 50 per cent of the figure payable if the premises were occupied (with various exemptions). Last year the government changed the rules about the rating of unoccupied property," he says.
Since 1 April 2008, the amount payable was increased to 100 per cent. This stemmed from a recommendation made some years previously by the Lyons report on local government finance.
Roots says: "It was an unashamed tax-gathering change with no proper regard to the consequences for the property industry and in a context of a buoyant economy in which, generally speaking, reasonable quality buildings did not stand empty for very long. However, the recession has changed all that. Buildings standing empty generate no revenue out of which rates and other outgoings can be paid. In economic circumstances in which the prospects of letting an unoccupied building, however vigorous the marketing, are small, the requirement to pay full rates is very onerous and will depress the value of properties just when the government is concerned that values are dropping to the extent that it will cause depression.
"Furthermore it will act as a disincentive to investment in new buildings which would be unfortunate since when we eventually emerge from the recession, businesses will need the property industry to be ready to provide modern accommodation."
Section 45 of the Local Government Finance Act 1988 provides that owners of empty non-domestic properties are liable to pay non-domestic rates if certain conditions apply. One of those conditions is that the property must fall within a prescribed class. Regulation 3 of the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 prescribes that class as consisting of all buildings or parts of buildings except those listed in regulation 4. The list in regulation 4 includes properties whose rateable value is less than £2200 (Reg 4(g)). regulation 2 of the 2009 Regulations alters the operation of regulation 4(g) so that it excepts properties whose rateable value is less than £15,000. The arrangement is time-limited between 1 April 2009 and 31 March 2010.
The government says that the current economic climate makes it harder for owners to re-let, re-develop or sell empty properties and this measure will alleviate the short-term burden on owners of small empty non-domestic properties.
Roots says: "Properties with a rateable value of £15,000 is still pretty small, so in a typically ungenerous way something has been done which is not enough."
OFT study needed for regulation of estate agents
LNB News 14/04/2009 48
Published date: 14 April 2009
Jurisdiction: UK
Related digests: LNB News 18/03/2009 81
Abstract: Regulation of estate agents won't happen without an Office of Fair Trading (OFT) study and if that is the result of the OFT review then it would be worth the time and money involved in itself says John Northey, conveyancer at Blight Skinnard. Ben Brocherie reports.
Analysis: The comprehensive market study into home buying and selling was formally launched on 25 February 2009 and will consider: competition on price and quality between service providers; the prospects for new entry by, for example, internet property retailers; and the extent to which consumer interests are protected by the existing regulatory framework.
John Northey explained that as a high street conveyancer in a well established small law firm he is dismayed by the throttle hold that local estate agents have now developed over who is now referred to their practice. "Only 2/3 years ago we would expect to get a regular supply of local referrals but now, since the advent of referral fees, we get hardly any as we don't pay anybody for them.
"In the current slow down estate agents who have their own in-house conveyancing service or who otherwise get paid referral fees by panel firms are even more reluctant to send any work whatsoever to local High Street firms and are quite happy to see us wither on the vine."
He says it suddenly seems like estate agents are unwilling to recommend any independent solicitors who do not pay them fees and this is surely not at all in the interests of consumers of estate agency services, especially buyers.
He explained that he would like to see a "complete ban on estate agents referring buyers to their tied-in services such as conveyancing and surveying" as a result of the review. He conceded that it seems "fair in my view for agents to continue to refer their own vendors to their tied in conveyancing services as after all they are the customer/clients of the estate agent." However, he said "there is a clear potential conflict of interest for them to refer buyers to those same type of solicitors, that is, those who pay them. Buyers need independent advice and they won't get that from most panel or referral fee paying firms."
He hoped the important and financially undervalued role of solicitors in the conveyancing process would be acknowledged and that regulation will serve to "break the stranglehold which many agents in this area have on the conveyancing market, giving their buyers more freedom in their choice of solicitor."
However, Mr Northey feared that "as with the supermarkets, the watchdogs of the OFT will remove their fangs when faced with the views of the representatives of the big corporates of the estate agency world and will back off from causing them too much grief."
The OFT intends to complete the study before the end of 2009 and have invited comments and submissions on the issues raised by the study which should be emailed to: homebuyingandselling@oft.gov.uk.
Articles
The alienation effect
LNB News 23/04/2009 39
Published date: 22 April 2009
Author: Rachel Fletcher and Charlie Marlow
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 82
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: Issues to consider when transferring an interest in leasehold commercial property.
Summary: Looks at the rise in transferring an interest in leasehold commercial property. Landlords and tenants alike are preparing to weather the economic storm and many companies are reportedly trying to reduce and consolidate they space they occupy in an attempt to rationalise expenditure. The increasing focus upon the efficient use of premises means that many commercial tenants may be looking to transfer their interest in leasehold property.
Journals
To list or not to list – that's the question
LNB News 23/04/2009 38
Published date: 22 April 2009
Author: Lesley Webber
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: to List or Not to List - That's the Question
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: Why a delisting review could be a suitable alternative to judicial review of a listed property.
Summary: Suggests that a delisting review could be a better alternative than judicial review for owners opposing listing of their property. Under a delisting review, the Department for Culture, Media and Sport considers whether a building should have been placed on the statutory list. If it is alleged that the decision to list should not have been made because, for example, the wrong building was listed, a review can be sought within 28 days.
Behind the routine lies sloppiness
LNB News 23/04/2009 37
Published date: 22 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 85
Jurisdiction: England; Wales
Abstract: Estates Gazette, 11 April 2009: The importance of having the correct safeguards in place when giving solicitors undertakings in conveyancing transactions.
Summary: Looks at the role of solicitors' undertakings in conveyancing transactions and the courts' willingness to enforce them. Solicitors' undertakings are legally enforceable and any solicitor or firm that becomes cavalier over ensuring that the proper safeguards are in place can land up in trouble. Undertakings provide a practical solution to what would otherwise be an insoluble problem at the heart of domestic house sale where the vendor has a subsisting mortgage.
History lesson in planning applications
LNB News 23/04/2009 42
Published date: 22 April 2009
Author: Robert Hill
Journal name: Estates Gazette
Journal date: 11 April 2009
Journal citation: Estates Gazette, 11 April 2009, 79
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 11 April 2009: The importance of preserving the historic environment.
Summary: Explores the issues surrounding preservation of the historic environment following the abandonment of the Heritage Protection Bill. Despite abandoning the Bill, The government has reiterated its aim to continue the reform of heritage legislation. It proposes, among other actions, a new English planning policy statement that 'brings together planning policy and all aspects of the historic environment'.
The promised land
LNB News 22/04/2009 24
Published date: 22 April 2009
Author: Mark Pawlowski
Journal name: Solicitors Journal
Journal date: 7 April 2009
Journal citation: Solicitors Journal, 7 April 2009, 10
Jurisdiction: England; Wales
Related cases: Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776
Abstract: Solicitors Journal, 7 April 2009: Does ruling provide a return to orthodoxy in relation to proprietary estoppel?
Summary: Examines the House of Lords ruling in Thorner v Majors [2009], which overturned a Court of Appeal decision and re-instated the first instance ruling. The case looked at two issues, the quality of the assurance necessary to found a propriety estoppel claim and the degree of certainty required in identifying the property forming the subject matter of the estoppel claim. Although the House of Lords concluded that the relevant assurance had to be clear and unambiguous, the relevant representations in the instant case had to be viewed within their factual context.
Time to concede
LNB News 22/04/2009 20
Published date: 22 April 2009
Author: Mathew Ditchburn
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 138
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 4 April 2009: How the economic downturn is affecting the commercial relationship between landlord and tenant.
Summary: Looks at the changing commercial relationship between landlord and tenant in light of the economic downturn with an emphasis on rent concessions. If, six months ago, a retail tenant had approached its landlord to change its existing lease by halving the rent or paying rent monthly, it may well have been sent packing. However, nowadays more and more landlords are deciding that concessions might be better than the alternative, an insolvent tenant and a rental void.
The true test of reasonableness
LNB News 22/04/2009 33
Published date: 22 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 141
Jurisdiction: England; Wales; Scotland; Northern Ireland
Related cases: Royal Bank of Scotland plc v Victoria Street (No 3) Ltd [2008] EWHC 3052 (Ch), [2008] All ER (D) 280 (Oct)
Abstract: Estates Gazette, 4 April 2009: Conditions under which a landlord can withhold consent to an assignment.
Summary: Examines the Royal Bank of Scotland plc v Victoria Street (No 3) Ltd [2008] that looked at consent to an assignment, which can be refused if the tenant fails to prove the assignee's strength of covenant. Licences to assign are often a source of friction between landlord and tenant. Difficult market conditions add to the tensions and tenants will, wherever possible, seek to hold landlords responsible if a deal falls through.
Qualified success
LNB News 22/04/2009 42
Published date: 22 April 2009
Author: Thomas Jefferies
Journal name: Estates Gazette
Journal date: 4 April 2009
Journal citation: Estates Gazette, 4 April 2009, 134
Jurisdiction: England; Scotland; Northern Ireland; Wales
Abstract: Estates Gazette, 4 April 2009: Unresolved issues involving headleases in leasehold enfranchisement cases.
Summary: Looks at residential headleases and their role in recent collective enfranchisement cases. Headleases of residential blocks of flats and conversions have long been regarded as a convenient way for landlords to pass on the main obligations and risks of holding a reversionary interest. Typically, the headlease is subject to occupational underleases of the flats, and a nominal reversion of a few days is retained.
Tax in turbulent times
LNB News 21/04/2009 55
Published date: 21 April 2009
Author: Charles Beer and Eleanor Bosley
Journal name: Tax Journal
Journal date: 20 April 2009
Journal citation: Tax Journal, Issue 977, 7
Jurisdiction: England; Scotland; Northern Ireland; Wales
Related Digests: LNB News 19/01/2009 60; LNB News 17/02/2009 40; LNB News 10/03/2009 51; LNB News 31/03/2009 54
Abstract: Tax Journal, Issue 977: Corporate occupiers and landlords are considering their property in a new light.
Summary: Look at the challenges and opportunities for users and owners of business premises in the current market. In the light of increasing tenant distress, landlords are finding themselves with over-rented premises and increased risk of tenant default, which bring with them the spectre of vacant property with all its associated costs, not least empty property rates. Owner-occupiers too are facing tough decisions in relation to their portfolios.
Many questions but no good answers
LNB News 22/04/2009 1
Published date: 21 April 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 191
Jurisdiction: England; Wales
Related cases: Seahive Investments Ltd v Osibanjo [2008] EWCA Civ 1282, [2008] All ER (D) 215 (Nov)
Abstract: Estates Gazette, 7 March 2009: The importance of clarifying the law on lease forfeiture
Summary: Examines a recent Court of Appeal decision in Seahive Investments Ltd v Osibanjo [2008] which looked at the issue of lease forfeiture. Although, in current market conditions, landlords will consider carefully whether to forfeit a lease, it remains critically important to them and their advisors to know how to preserve forfeiture rights that may have arisen. While the government decides whether to implement the Law Commission’s recent proposals for an overhaul of this area of the law, reliance has to be placed upon the courts' interpretation.
Green credentials
LNB News 22/04/2009 4
Published date: 21 April 2009
Author: Simon Hartley and Mark Penson
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 189
Jurisdiction: England; Wales
Abstract: Estates Gazette, 7 March 2009: How will energy efficiency affect future rent reviews?
Summary: Looks at the role of energy efficiency in determining rent reviews. Regulations brought into force in 2007 introduced energy performance certificates (EPC), which rate the potential energy performance of a building. However, many rent review clauses require assumptions and disregards that create a hypothetical tenancy and, although, not required on rent review, the assumed hypothetical willing landlord will have a duty to provide an EPC if the regulations apply to the hypothetical premises.
Outcome of a volatile market
LNB News 22/04/2009 5
Published date: 21 April 2009
Author: Richard Brown and Stephen Downham
Journal name: Estates Gazette
Journal date: 7 March 2009
Journal citation: Estates Gazette, 7 March 2009, 188
Jurisdiction: England; Wales
Abstract: Estates Gazette, 7 March 2009: Reasons behind the recent rise in rent review disputes.
Summary: Looks at the recent increase in rent review disputes and investigates the reasons behind this rise. One source of tension arises from the temptation for tenants, in a falling market, to delay rent reviews. The review process provides the tenant with extended credit against increases, often at advantageous rates of interest compared with an overdraft, while the landlord will want to hasten the process for those very reasons and, possibly, to exploit any advantage it may have over the tenant in the financing of a dispute.
Play with fire and you burn your fingers
LNB News 21/04/2009 31
Published date: 17 April 2009
Author: Ruth Boulton
Journal name: Estates Gazette
Journal date: 14 March 2009
Journal citation: Estates Gazette, 14 March 2009, 102
Jurisdiction: England; Wales
Abstract: Estates Gazette, 14 March 2009: How property sale deposits are affected by a bank collapse.
Summary: Explains why property professionals should protect themselves from losses if a deposit disappears on the collapse of a bank. The deposit is normally held by the seller or a nominated stakeholder for the period between exchange of contracts and completion. However, neither typical contracts nor the industry standard conditions of sale specifically cover the eventuality of a deposit being lost due to a bank failure.
More than words will be required
LNB News 17/04/2009 46
Published date: 16 April 2009
Author: Rachel Fletcher
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 113
Jurisdiction: England; Wales
Related legislation: Law of Property (Miscellaneous Provisions) Act 1989
Abstract: Estates Gazette, 21 March 2009: Oral tenancy agreements will be valid only in certain circumstances.
Summary: Explains the fact that agreements for leases were made orally does not automatically mean that they and/or any tenancies that they created are void. It is important to recognise the distinction between the statutory requirements for a valid lease and the statutory requirements for a valid agreement for lease. An agreement for lease must satisfy the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
The tools of the trade
LNB News 17/04/2009 45
Published date: 16 April 2009
Author: Nicholas Dowding and Roger Cohen
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 110
Jurisdiction: England; Wales
Abstract: Estates Gazette, 21 March 2009: Dilapidations claims are returning, so landlords and tenants need to be aware of the statutory cap on damages.
Summary: Reports dilapidations are back. Starved of opportunities for redevelopment, property owners are turning to asset management to maximise revenue. A proper understanding of claims for damages for dilapidations is an important part of an asset manager's toolkit.
A long-awaited answer partially given
LNB News 17/04/2009 52
Published date: 16 April 2009
Author: John Murdoch
Journal name: Estates Gazette
Journal date: 21 March 2009
Journal citation: Estates Gazette, 21 March 2009, 117
Jurisdiction: England; Wales
Related legislation: Human Rights Act 1998
Related cases: Hunter v Canary Wharf Ltd; Hunter v London Docklands Development Corp
[1997] AC 655, [1997] 2 All ER 426
Abstract: Estates Gazette, 21 March 2009: A nuisance is normally open only to those with a legal interest in the affected property, but a recent case introduced a human rights aspect.
Summary: Explains a non-occupier who cannot recover damages for private nuisance may succeed under the Human Rights Act 1998 (HRA). It is almost inconceivable that an occupier could recover extra damages under the HRA. The House of Lords decision in Hunter v Canary Wharf Ltd settled a long-standing debate on the issue of who is entitled to bring an action in tort.
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