Structure of real estate finance

The role of the real estate lawyer

In both investment and development real estate finance transactions, lawyers will also play a key role in negotiating all the documentation. Real estate lawyers will be of particular importance, providing reports to both the lender(s) and the borrower in relation to the title of the property being acquired and/or developed.

Depending on the nature and size of the transaction, the real estate lawyer may be instructed by the funder directly (usually one of the main institutional lenders) to prepare the funder's standard in-house documents such as the facility agreement, legal charge, guarantees and other security documents as well as undertake due diligence and report to the funder either using its own form of in-house report or using the City of London Law Society Certificate of Title. In this instance, the real estate lawyer may be involved in completing the legal charge as well as any other ancillary security as part of the security package.

In larger transactions, the real estate lawyer will often work with the banking and finance lawyers on a transaction either acting for the borrower or the

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Rent repayment orders and ‘person managing’ (Global 100 v Ross and others)

Local Government analysis: This was an appeal to the Upper Tribunal (Lands Chamber) by Global 100 (G100) against a decision of the First- Tier Tribunal (FTT) granting the respondent property guardian’s application for rent repayment orders (RROs) under section 43 of the Housing and Planning Act 2016 (HPA 2016). The London Borough of Haringey entered into an agreement with the company GGM in respect of a property it owned for live-in property guardianship services. GGM then granted permission for Global 100 (G100), a related company, to grant licences for live-in guardians, including the respondents to the appeal. The Local Authority did not receive any payment from the respondents but only a monthly consideration from GGM. The respondents applied to the FTT for RROs asserting G100 had committed an offence under section 72(1) of the Housing Act 2004 (HA 2004) by being in control or managing an HMO which ought to have been licensed. G100 tried to argue that Haringey was the ‘person managing’ under HA 2004, s 263(3)(b). The FTT accepted the agreement between Haringey and GGM was a licence and not a lease and that G100 was not the owner or the property and that but for this agreement Haringey would have received payments from the respondents. However, FTT held that the arrangement was not one ‘by virtue of which’ GGM received the payments and as it was G100, the FTT determined that the Haringey was not the ‘person managing’. The Upper Tribunal dismissed Global 100’s appeal and held that the FTT had not erred in law in concluding that Haringey was not the ‘person managing’ a property for the purposes of HA 2004, s 263(3)(b) and HA 2004, Sch 14, para 2. Haringey had entered into an agreement with GGM which permitted it to use the property for live-in guardianship services in exchange for monthly consideration. GGM then permitted a connected Global 100 to grant licences to property guardians in exchange for a fee. The Upper Tribunal held the FTT has not erred as there was no evidential basis for concluding that Haringey received any moneys from the occupiers ‘by virtue of’ the arrangement. Written by Tim Baldwin, barrister, Garden Court Chambers.

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