Commercial rent arrears recovery (CRAR)

The Commercial Rent Arrears Recovery (CRAR) regime, set out in the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) and related regulations allows landlords of commercial premises where there is a written lease to seize their tenant’s goods to recover rent arrears. It does not apply to residential or mixed-use premises.

CRAR is a 'self help' remedy and does not generally require the involvement of the courts. It is initiated by a landlord's instruction to 'enforcement agents' (bailiffs) to collect the rent or take control of goods. The court retains power to intervene if the tenant applies for an order.

As the use of the CRAR procedure will waive any right to forfeit which exists, the landlord should consider the position carefully before taking such action. Consideration should also be given to whether the tenant is

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Insolvency, declarations of trust, loan agreements, artificial asset protection, sham transactions, transactions defrauding creditors, interspousal asset transfers, change of position defence and wife’s entitlement to share of husband’s assets (Sayers v Dixon)

Restructuring & Insolvency analysis: The court held that six declarations of trust (DoTs) executed by the transferor (Mr Dixon) in favour of his wife (Mrs Dixon) constituted transactions defrauding his creditors within the meaning of section 423 of the Insolvency Act 1986 (IA 1986) and that two of them, purporting to transfer all his future assets and income to Mrs Dixon, along with an accompanying loan agreement, were shams which were void and ineffective. It set aside the DoTs and ordered Mrs Dixon to restore the value of three transferred properties (which had been converted into £551,589 cash) to Mr Dixon’s trustees in bankruptcy (trustees) together with interest of £101,726. It also ordered an account to be taken of the funds that had been transferred to Mrs Dixon or on her behalf by Mr Dixon over the seven years between the date of the DoTs and his bankruptcy. The court dismissed Mrs Dixon’s defence of change of position to the trustees’ claim for restoration, finding that even if such a defence were generally available (which is unclear), she had not acted in good faith and could not rely on it. It also dismissed her defence that, having been married to Mr Dixon for many years, she was entitled to half his assets and/or an entitlement to a share of them by virtue of a right to be maintained. Written by Jonathan Lopian, barrister at New Square Chambers, who acted for the successful claimants.

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