News

Ascertaining a boundary

More and more frequently, courts are admitting into evidence the subsequent conduct of adjacent owners (i.e. after creation of the boundary) to determine the precise location of a boundary between the owners’ properties. See Bradford v James [2008] EWCA Civ 837 where Mummery LJ states that “extrinsic evidence of surrounding circumstances and subsequent acts, though not admissible to contradict or vary the [original] conveyance plan, is admissible to clarify the aspects of it relating to the position of the boundary.” Full practical analysis of this case will appear in the August issue of the CPI Update. The case itself is […]

New content on the website

Over the past couple of weeks, the following content has been added to the website:
A draft underlease of part – see Underlease of part
A draft legal charge – see Legal charge
A draft legal opinion clause for sale contracts – see Legal opinion
A draft agreement for lease – landlord’s minor works – see Agreement for lease (minor works)
Key points on easements – see Easements
Key points on AGAs, guarantees and rent deposits – see Security for performance
Key points on boundary matters – see Boundaries

Tenancy at will or 1954 Act protected tenancy?

Tenants frequently enter into occupation on an undocumented basis. They shouldn’t, but they do. Property lawyers are then left to work out the precise nature of the occupation agreement entered into. Is it a tenancy at will, falling firmly outside the 1954 Act? The Recorder thought so in Manton Securities Limited v Nazam [2008] EWCA Civ 805 despite a period of occupation running from 1998 to the present day. Or is the tenant, paying rent on a quarterly basis, a 1954 Act protected periodic tenant (but without the ability to serve a section 26 request)? The third way identified […]

Uninsured damage – flood risk

The risk of domestic and small business properties suffering uninsured damage as a result of floods has receded considerably following a joint announcement (11th July) by the Government and the Association of British Insurers on a long-term investment strategy to deal with flood prevention, a reassessment of how the planning system prevents inappropriate development in flood-risk areas, and a commitment to the wider availablity of flood risk insurance. See ABI/Government statement; and see also the publication of a revision of the ABI statement of principles on flood insurance (applicable in England) at Revised ABI principles.

The meaning of words?

One appreciates the difference between a landlord requiring “a reasonable alternative guarantee” and its requiring “reasonable alternative security” for performance of tenant covenants. However, one might assume that the security referred to is of a third-party variety, or in the nature of a rent deposit. Yet, an assignee of a lease itself provides security, and, where a guarantor is seeking terms for a release, the covenant of the assignee alone could amount to “reasonable alternative security”. So says the High Court in Landlord Protect Limited v St Anselm Development Company Limited [2008] EWHC 1582 (Ch). See http://www.bailii.org/ew/cases/EWHC/Ch/2008/1582.html

Obtaining an EPC

Following the recent July 1st commencement date for mid-sized commercial buildings, commercial search providers seem to be jumping on the EPC bandwagon and offering the provision of energy efficiency inspection services. See EPCs with Searchflow.

Land Registry – more dematerialisation

You may have received notice of the Land Registry’s plan to increase the scanning and electronic retention of documents from 14th July. See Scanning and Retention.

Scanning and electronic retention will result in the original document being destroyed unless either a request is made for its return, or a certified copy is lodged. At present, Land Registry only scan deeds referred to on the register as “copy filed”, and leases and charges. But from 14th July 2008, scanning of documents will apply to all applications and correspondence completed on or after this date. Land Registry states that, as at present […]

Easements – section 237 TCPA 1990

The Government proposes moving forwards (through inclusion of provisions in the Planning Bill) with amendments to section 237 TCPA 1990 to facilitate a wider overriding of rights where land is acquired by CPO for planning purposes. Click on Easements and section 237 TCPA 1990.

EPCs – social and private rented housing

For those operating in the social and private rented housing sector, the DCLG has published a guidance note on the need for EPCs. Click on EPC Landlord’s Guide.

July/August 2008 Update

The July/August edition of the Commercial Property Information Update has been published on this website.

If you are a subscriber (and you are logged in) you can access the update from CPI Update – July/August 2008.

The July/August 2008 issue of the CPI Update contains:

Case law commentary on:

• Earl Cadogan v 26 Cadogan Square Ltd – Residential leaseholds and the right to enfranchise
• Bell v Long – Mortgages; duties of receivers on sale
• Chilli Developments Ltd v Commission for the New Towns Exclusivity agreement; good faith clause
• Brooks v Young – Easements; right of way
• Ben Cleuch Estates Ltd v Scottish […]

EPCs – July 1st commencement date

Just a reminder that tomorrow (July 1st) is an EPC commencement date under the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 (SI 2007/991). As from July 1st 2008, subject to the general exceptions in the regulations, EPCs are required on the construction, sale or letting of commercial buildings with a total useful floor area over 2,500 sq. mtrs.

Transitional rules apply under the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2008 (SI 2008/647) to commercial buildings with the requisite floor area which were on the market before, and remain on […]

Local authority searches

“[It] should not be forgotten that the property market in England and Wales continues to function in a way which has been judged to be more cost efficient than most systems elsewhere in the world, albeit not as speedy as many.”

This is a comment included in a report published this week on the DCLG website (but not forming part of Government policy) on the the scale and nature of problems surrounding local authority searches. To read the report, see http://www.communities.gov.uk/documents/housing/pdf/localpropertysearches.pdf

EPCs – drafting implications

The London Property Support Lawyers Group and the Association of Property Support Lawyers has published a document on the City of London Law Society website entitled “Guidance on the Practical Application of the EPC Regime to Commercial Properties (Non-Dwellings).” It can be seen at City Solicitors EPC Guidance.

Property PSL leases already include EPC-related drafting. The July issue of the CPI Update will digest this guidance, and include an analysis of the contract and lease drafting implications of the new EPC regime.

VAT changes to property precedents

Property PSL documents have been updated where necessary to reflect changes to the option to tax introduced on June 1st by the Value Added Tax (Buildings and Land) Order 2008 (SI 2008/1146). These changes ensure that references are made to the option to tax, rather than an election to waive exemption, and that the drafting is sufficient to cover both ordinary options to tax made by a seller/landlord as well as the new real estate options to tax. The TOGC provision is also updated. This month’s CPI Update – see CPI Update – June 2008 – explains in detail the […]

Contaminated land – model planning conditions

A new set of model conditions intended for use by local planning authorities in England for development on land affected by contamination has been circulated by the Department for Communities and Local Government. Information about these conditions can be seen in a letter to Chief Planning Officers issued by the DCLG on 30th May.

CPSEs and EPCs

No amendments have yet been made to the CPSEs (see last news item) in relation to the requirement to produce an EPC as part of a sale or letting of a commercial building. New enquiries are expected by the time the next EPC commencement date arrives, at the start of July. To some extent, enquiries are unnecessary: the need to produce an EPC should normally be dealt with as soon as agents are instructed in relation to a potential sale or letting. However, we do not live in an ideal world, and a stock enquiry will be needed regarding its […]

CPSE amendments

The BPF Commercial Property Standard Enquiries have been amended very slightly (a) to deal with the abolition of SDLT self-certificates and Budget changes to thresholds for notification; (b) to take account of changes to the option to tax introduced from 1st June: and (c) to make minor changes to enquiries relating to building regulations and listed buildings. Only the general enquiries (now in version 2.7) and the CPSE.5 surrender enquiries (now in version 1.1) are affected. Links to the CPSE enquiries from this website have been updated, as have the Property PSL standard replies to CPSEs. (Note: these now include […]

New content on the website

A draft development agreement (agreement for lease) in relation to major new construction works has been posted onto the website today. The agreement relates to development works to be carried out by the developer/landlord following the obtaining of the requisite planning and other necessary consents. See http://www.propertypsl.co.uk/node/55

In addition, a contract clause requiring a buyer’s opinion letter has been posted at http://www.propertypsl.co.uk/node/96