News

Opinion letters – finance

The City of London Law Society Financial Law Committee has published, on the City of London Law Society website, a guide to the questions to be addressed when providing opinion letters on English law in financial transactions. The guide suggests the questions which a law firm practising English law should consider addressing when seeking or providing an opinion letter under English law in a financial transaction, and explains the key considerations which might be relevant in answering them. However, the guide does not extend to opinion letters on corporate or property transactions.

Option for a surrender or a break right?

Care must be taken to draw a clear line between a break right and a surrender agreement.

As was shown by the House of Lords in Barrett v Morgan (2000) 2 AC 264, there are fundamental differences between the two types of agreement. Whilst both agreements bring about the termination of a tenancy, one method of termination is unilateral, and the other is consensual. In general, unilateral termination of a lease (e.g. by the exercise of a break right) ends any derivative interests such as sub-leases, subject to rules of statutory security of tenure, whereas consensual termination (e.g. by way of […]

Stamp duty on share sales

Earlier this week, commentators in the national press, seemingly in the know, were predicting that the draft legislation to be published to implement announcements in the Chancellor’s Autumn Statement would signal the introduction of an increase in stamp duty on the sale of shares in property-rich companies. (See Daily Telegraph). At present, selling the company that owns a property, instead of selling the property itself, gives rise to a significant stamp duty saving, in that stamp duty on share sales is set at 0.5% of the purchase price, whereas the top rate of SDLT is 5% (or 4% in the […]

Lenders’ requests for files

The Law Society has updated its practice note for solicitors in cases where a lender is requesting that a solicitor discloses information or documents contained in a joint conveyancing file (i.e. a file maintained on an acquisition for the buyer and its lender). The update is motivated in part by renewed requests by lenders for information – perhaps investigating possible mortgage frauds – and in part by the decision of the High Court in the case of Mortgage Express v Sawali [2010] EWHC 3054 (Ch). In this case, the claimant lender sought an order for the delivery up of […]

HS2 link searches

GroundSure is advertising on its website a new GroundSure HIGHSPEED 2 property search: “GroundSure HIGHSPEED 2 is a search report that clearly identifies whether a property is near the proposed route of HIGHSPEED 2 (HS2). This new unique report searches properties within a 2000m radius, when other similar searches will only search properties located within a 1000m radius.” Details are found in the residential property searches section of the website, but it may be considered suitable for commercial acquisitions. According to its website, the search report will answer three key questions:
1. What is the nearest distance between the property […]

CRC performance league table

The Environment Agency has announced on its website that the first CRC performance league table will be published tomorrow (8th of November). The league table ranks CRC participants on the basis of action taken to manage energy consumption and emissions. The better an organisation performs in terms of cutting its emissions, the higher it will appear in the annual performance league table. The performance league table is a published table detailing the relative performance of all participants in CRC against three weighted metrics: the absolute metric (i.e. actual change/reduction in emissions relative to preceding years), the early action metric (i.e. […]

Assignment of part – liability for the rent

Smith & Anor v Jafton Properties Ltd [2011] EWCA Civ 1251 is a case to interest those whose practice area involves the statutory right to enfranchise under the Leasehold Reform Housing and Urban Development Act 1993.

However, the case also includes a detailed analysis by Lord Justice Lewison of the legal principles under-pinning tenant or, more to the point, assignee liability on an assignment of a lease in part. After a detailed consideration of the relevant authorities Lewison LJ concludes that “following a physical severance of the land comprised in a term of years, the tenant’s obligations are likewise severed; […]

Guarantees and undue influence

What steps do you take to ensure a guarantor enters into a guarantee of its own free will? A recent case has rendered void a lease guarantee as a result on undue influence exercised over the guarantor. See Trustees of Beardsley Theobalds Retirement Benefit Scheme v Yardley [2011] EWHC 1380 (QB).

“[This] was unquestionably a transaction which Mr Yardley [the guarantor] should have been advised was one that he should first take independent legal advice… and should not have been asked to sign the document until he had taken that advice or had clearly given informed consent not to take it. […]

Online property webinars for 2011 and 2012

An updated programme of property webinars through to July 2012 has been posted at http://propertypsl.co.uk/online-cpd

How many LAs intend using CIL?

Drivers Jonas Deloitte run an annual survey. An analysis of its latest Community Infrastructure Levy (CIL) survey in May 2011 found that almost 70 per cent of Local Authorities are intending to adopt CIL. This represents a substantial shift from the previous survey in 2010 where only 20 per cent of authorities proposed to adopt CIL. See http://www.djdeloitte.co.uk/uk.aspx?doc=41527

EPC – changes for 2012

The Department for Communities and Local Government is bringing in its proposed changes to the rules on the supply of Energy Performance Certificates from 6 April 2012. See The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 (SI 2011/2452). The changes are aimed at achieving better compliance, since compliance rates in England and Wales are poor. The regulations will, amongst other things, extend, to all buildings – commercial or residential – the requirement now applicable only in residential property cases to commission an EPC before marketing the property for sale or rent. Further, they will […]

Contra proferentem no more

Last month, these pages pointed to Lord Neuberger’s sounding of the death knell for the long-standing contra proferentem rule as an aid to the interpretation of documents – see The overlooked point in K/S Victoria Street v House of Fraser. This rule has applied so that, in the case of an ambiguity in a document, the document is to be construed against the grantor. Now Lord Justice Patten has waded in. In Alford v Hannaford & Anor [2011] EWCA Civ 1099 (a case relating to the interpretation of an easement) he regards the contra proferentem rule as a “rule of […]

October online seminars

October online seminars (or webinars, if you like) capable of coming to a screen near you:17 October 2011- Dealing with applications for consent under leases.19 October 2011 – Triggering overage and protecting rights to payments.24 October 2011 – Commercial Property Update – Autumn 2011.26 October 2011 – Development acquisition: conditionality, CIL and section 106.
See http://propertypsl.co.uk/online-cpd

OFR – Acting for lender and buyer

Under the new SRA Code of Conduct, there is no longer a specific conflicts rule regulating acting for a lender and borrower. Hence, the issue is simply whether there exists a conflict, or a significant risk of a conflict, between two or more current clients. However, Indicative Behaviour 3.7 can be seen as giving licence to a residential conveyancer to act for a buyer and its mortgagee, provided no conflict of interest exists or arises.

“IB(3.7) [You tend to show compliance if] acting for clients who are the lender and borrower on the grant of a mortgage of land only […]

EPC – proposed DCLG amendments

RICS carries news on its website that the Department for Communities and Local Government will not now bring in its proposed changes to the rules on the supply of Energy Performance Certificates until 6 April 2012. The changes were initially planned for July 1, 2011. See RICS news.

Outcomes-focused regulation (OFR)

Several practice notes are available on the Law Society’s website to assist lawyers in the introduction of outcomes-focused regulation on 6 October. OFR replaces the SRA Code of Conduct 2007. The practice notes are: Outcomes-focused regulation: overview.
Information on letterheads, emails and websites.
Conflicts of interests.
Compliance officers.

Chancel repair liability

What are Parochial Church Councils doing about the registration and enforcement of chancel repair liabilities? See a very interesting advising opinion taken by the Church of England at http://www.churchofengland.org/media/51405/chancelrepairliability.rtf

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