News

1954 Act – compensation for misrepresentation

Some cases take a little time to come to light. Inclusive Technology v Williamson [2009] EWCA Civ 718 is a Court of Appeal case from May 2009. It appears to be the first reported instance of an award of compensation against a landlord under section 37A LTA 1954 (compensation for possession obtained by misrepresentation). It involved a landlord who served a section 25 notice on the basis of ground (f), who stated in an accompanying letter that it had the intention to redevelop, and that it required possession for that purpose, and who then subsequently changed its mind, and did […]

Insolvency – landlord questionnaire for pre-pack administrations

Earlier this year, the Insolvency Service produced guidelines – Statement of Insolvency Practice 16 (SIP 16) – to set out administrators’ duties to give full and clear disclosure to creditors as soon as possible after a pre-pack transaction has taken place. The Insolvency Service has now published a report on pre-pack administrations, entitled: Report on the First Six Months’ Operation of Statement of Insolvency Practice 16.

In response to this, the British Property Federation has published a questionnaire for landlords, designed by Lovells LLP, and based on SIP 16. The questionnaire poses 21 questions a landlord will want to ask an […]

Early completion – Law Society Practice Note

The Law Society’s Practice Note on the Land Registry’s policy of early completion now appears on the Law Society’s website. Click on Early Completion Practice Note to read it. However, whilst the note explains in detail how early completion will work, there are no new, innovative ideas suggested as to how to deal with the new policy (and, in particular, how to deal with the greater risks that arise where a buyer is confronted with a seller’s charge that is protected by a “no disposition” restriction). For a full analysis of how to deal with early completion, read the […]

Code for Leasing Business Premises

Property Week includes reports of more Governmental murmurs of dissatisfaction with the property industry over its lack of use of the Code for Leasing Business Premises. Now, in a recession, is the time for tenants to extract as much as they can from landlords in lease negotiations by arguing for fair, Code-compliant lease drafting. But the Government expresses itself dissatisfied with the Code’s uptake – see Government ‘disappointed’ with implementation of property lease code. This folows on from the publication by the Government of a privately commissioned report on the workings of the 2007 Code for Leasing Business Premises. […]

Contract clause for early completion

A contract clause, inspired by the Land Registry’s forthcoming early completion policy, requiring a seller to procure discharges of its existing mortgages, now appears in the Clause Bank – Agreements for Sale.

SDLT – filing further returns

Is your client caught by a requirement to file a second or subsequent tax return in relation to a land transaction (e.g. because a later transaction is linked to the earlier transaction, or a previously uncertain rent or other consideration has now been ascertained, or because a tenant has started to hold-over under the 1954 Act)? How do you file the return? Guidance has been provided on the HMRC Stamp Taxes website – see Further Returns.

Sale and rent-back – estoppel binds a mortgagee

Sale and rent-back (SRB) debacles of the past couple of years have led the Government to bring supposed “mortgage rescue” schemes within the remit of the Financial Services Authority. From July 1, an interim regime applies, so that firms providing SRB schemes will need to comply with FSA threshold conditions including the requirement to have adequate resources and to be run by fit and proper people. See FSA – SRB Schemes.

It seems, however, that the courts may also be prepared to step in to assist a poor, beleaguered mortgage debtor, whose SRB buyer turns out to be less of a […]

Upward-only rent reviews

Across a little bit of the pond, the Government in Ireland has announced that it is abolishing, prospectively, the upward-only rent review clause. See Minister moves to ban upwards-only rent reviews. Not something that could happen here, one would have thought….?

On a separate and distinctly unconnected note, the UK Government has published a privately commissioned report on the workings of the 2007 Code for Leasing Business Premises. Click on Monitoring the 2007 Code for Leasing Business Premises.

New Land Registry Fee Order – from today

A new Land Registry fee order is in force. The Land Registration Fee Order 2009 (SI 2009/845) increases Land Registry fees across the board for registration and information services.

Key points to note include:

Scale fees. Scale 1 and scale 2 fees increase by between 25 and 30% (or, in one case, 40%) with a reduction on the new fee of up to 25% for voluntary first registrations. The Land Registry states that this is the first time that there have been increases in scale and fixed fees for substantive registration applications since 1993.

Notices and restrictions. The fee for registering […]

Overage – Chartbrook v Persimmon Homes in the House of Lords

The House of Lords has upheld an appeal by Persimmon Homes in the case of Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38. The House of Lords found itself able to interpret an overage agreement between the parties in a way which avoided Persimmon’s exposure to a commercially unrealistic, large overage payment. The case was decided on construction of unclear words. However, the case is perhaps more notable (a) for its reaffirmation of the established rule that evidence of pre-contract negotiations are inadmissible as an aid to the construction and interpretation of contracts (see Prenn v Simmonds [1971] 1 […]

Certificates of title – supporting documents

Where a certificate of title is to be given in the form prepared by the City of London Law Society, it is convenient to make use of the supporting Certificate of Title documents designed to assist in the information gathering exercise. These were updated last week, and include a draft letter from the certifying solicitors seeking various confirmations of information from “the Company” (i.e. the client) so that the acting solicitors are able to produce the Certificate; a form of questionnaire – designed as an alternative method of extracting relevant information from the company; and a draft letter to the […]

CML policy “update”. (Not).

Under “Latest Policy Updates” on its website, the Council of Mortgage Lenders has an item entitled “Conveyancing and Land Registry Issues – This deals with general conveyancing issues particularly relating to the Land Registry.” Excitement? The CML, one guesses, is responding to the problems created by the Land Registry’s new early completion policy, and is deciding to kick its members into providing mortgage discharges in a more responsible turn-around time? Sadly, no. This “latest policy update” is the publication of the 1999 update of the 1992 CML statement on mortgage redemption statements. No new news, therefore. But worth a read […]

Agents complain about EPC confusion

The Institution of Commercial Business Agents is asking for clarification on the timing of the duty of sellers to make available a valid EPC. See Property Week – EPC confusion. The regulations may not be easy to follow, but the timing of the duty seems fairly clear. The duty to make available an EPC is to be satisfied “at the earliest opportunity” and in any event before entering into a contract to sell or rent out the building or (and here’s the tricky bit), if sooner, no later than whichever is the earlier of: (a) in the case of a […]

Early completion – Land Registry FAQs

The Land Registry is regularly adding information to its website in relation to the early completion policy in its FAQ section of the Land Registry website – under the heading “Missing evidence of discharge – changes to Land Registry procedures”. There are 33 questions to date. To view them, click on FAQs – early completion.

Mercury Tax – exchanging contracts?

It is interesting to learn that the London Property Support Lawyers Group is taking its own advice from counsel on the implications for property of the Mercury Tax case. Already, the City of London Law Society has taken the advice of Mark Hapgood QC (see Execution of deeds and documents – Mercury Tax) and has published its findings in the form of its ‘virtual closing’ protocol (VCP), designed to facilitate exchanges and completions where a signatory to an instrument is absent. However, concerns exist as to whether the VCP, having been prepared mainly in the context of corporate transactions, and […]

Carbon Reduction Commitment – BPF Guide

The British Property Federation has launched a guide to the forthcoming Carbon Reduction Commitment which will start affect property owners and occupiers from April 2010. You can read the BPF press release by clicking on BPF Carbon Reduction Commitment Guide. The press release includes links to a number of documents including, most importantly of course, the Guide itself. The Guide sets out steps for landlords and tenants to consider taking prior to the introduction of CRC, advice on how costs may be apportioned between landlords and tenants, a consideration of what may need to happen when a building is transferred […]

Early completion – slight relaxation by the Land Registry

The Land Registry has indicated a (very) slight softening of its application of the new early completion policy. It has announced (to the Association of Property Support Lawyers and the London Property Support Lawyers Group, and hopefully soon on its own website) as follows:

“The Land Registry has decided to modify the early completion policy to address concerns raised by some practitioners about the potential loss of priority if applications are cancelled. In deciding our policy we have made a distinction between situations where a restriction prevents registration and situations where there is no restriction but we still have to […]

Sale and rent-back sector

In February 2009, the Financial Services Authority published a consultation paper (“Regulating the sale and rent-back market: a consultation”) setting out proposals to regulate sale and rent back schemes used as part of the Government-inspired mortgage rescue schemes. See comment in the CPI Update – March 2009. The Financial Services Authority has now published details of the regime that it aims to introduce on 1 July. Under this interim regime, firms providing sale and rent-back schemes will need to comply with FSA threshold conditions including the requirement to have adequate resources and to be run by fit and proper […]