Property insolvency

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Featured Property content

The Standard Conditions of Sale (5th edition: 2018 revision)—a guide to the main provisions

The Standard Conditions of Sale (SCS), currently in their 5th edition (2018 revision), are a set of standard conditions which are commonly...

Title guarantee and covenants for title

On the disposition of a property (whether by way of conveyance, transfer or charge), the party making the disposition will normally provide a title...

Authorised guarantee agreements

What is an authorised guarantee agreement (AGA)?Under an authorised guarantee agreement (AGA), an outgoing tenant guarantees some or all of the...

Underletting at less than the passing or market rent

When property markets suffer a downturn, commercial tenants with properties that are surplus to requirements face significant difficulties in...

Practice notes

Pre-completion searches

Official search with priority—registered land or seller’s title pending first registrationHow and when to search?An official search with priority will...

9th Nov

Practice notes

Rent deposit deeds—common structures

What is a rent deposit?A rent deposit is a sum of money that is deposited by a tenant when it takes a lease of premises as security against the...

9th Nov

Practice notes

Consecrated ground and burial grounds—issues for developers

Consecrated land—Church of EnglandFor the purposes of this section of this Practice Note, consecrated land means any land or building which has been...

9th Nov

Practice notes

Without prejudice and subject to contract

Subject to contractIf a party who strikes a bargain wishes to make it clear that it does not intend to enter into a binding contract until a formal...

9th Nov

Practice notes

Headline rents

What is a headline rent?In a falling market, landlords frequently offer tenants financial inducements to take a lease in order to maintain the level...

9th Nov

Practice notes

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.Not every...

9th Nov

Precedents

Deed of grant of easements

This Deed is made on [insert date]PARTIES1[insert name of the owner of the Servient Land] [ of [insert address] OR incorporated in England and Wales...

9th Nov

Practice notes

Letter/certificate of non-crystallisation in property transactions

What is a letter of non-crystallisation?A letter of non-crystallisation is required by a buyer’s/lender’s solicitor to confirm that:•a floating charge...

9th Nov

Practice notes

Applying the proceeds of sale

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose...

9th Nov

Practice notes

Fixtures and fittings

When transferring an interest in land, any fixtures form part of the land and are transferred with it, unless there is express provision to the...

9th Nov

Precedents

Template completion statement—sale

An adaptable Word version of this Precedent can be saved, downloaded or printed from this link:Completion statement—saleThis Precedent is a template...

9th Nov

Q&As

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) automatically transfers any existing mortgages on a leasehold title when the lease is extended under LRHUDA 1993. Therefore it is not necessary to obtain the mortgage company's consent to the lease extension. However, if there is a mortgage on the landlord's title, does the landlord need to obtain consent or does LRHUDA 1993, s 58 also render obtaining consent unnecessary?

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) governs the position in respect of mortgages both of the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 12th Jan

Practice notes

Rent suspension or cesser

Generally, the tenant remains liable for the rent even though the premises have become unusable. Consequently, leases normally contain a provision...

9th Nov

Practice notes

A review of Standard Commercial Property Conditions (Third Edition) and practical tips

The Third EditionThe third edition of the Standard Commercial Property Conditions was published on 27 April 2017. It is an update to Standard...

9th Nov

Practice notes

Easements—nature and characteristics

Nature of an easementAn easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of...

9th Nov

Precedents

Deed of release of covenants

This Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in England and Wales with company...

9th Nov

Most recent Property insolvency content

Practice notes

Accepting a surrender from an insolvent tenant

Accepting a surrender can be the quickest way for a landlord to regain possession of the premises from an insolvent tenant. It circumvents the extra...

26th Jan

Practice notes

Corporate Insolvency and Governance Act 2020—restructuring plan provisions

Spurred on by the coronavirus (COVID-19) pandemic, the government pushed through the Corporate Insolvency and Governance Act 2020 (CIGA 2020). The...

26th Jan

COVID-19

Practice notes

Winding up a general partnership as an unregistered company

This Practice Note looks at the winding-up of an insolvent partnership as an unregistered company under the Insolvency Partnerships Order 1994 (IPO...

Produced in partnership with Martha Maher retired barrister of St John’s Chambers 25th Jan

Q&As

Can a landlord forfeit a lease by peaceable re-entry if the tenant is bankrupt, vacated the premises some time ago, and has substantial rent arrears (the lease allows for forfeiture if the tenant is bankrupt)? What are the risks of the landlord doing this? Also, does liability under an authorised guarantee agreement (AGA) cease on surrender of the lease (express or implied) or forfeiture for bankruptcy, or does this come down to the wording used in the AGA?

A tenant who fails to pay the rent will ordinarily find that the landlord forfeits the lease as a result, assuming there is a clause in the lease...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

An individual co-owns property with their mother by virtue of a trust. The mother is now bankrupt. The mother's beneficial title to the relevant property therefore vests in her trustee in bankruptcy. The individual wishes to acquire their mother's beneficial title from the trustee in bankruptcy and they are agreeable to that arrangement. However, the individual also needs the legal title to be transferred to them to satisfy their lender. Can the trustee transfer the legal title by relying on the provisions in section 283(4) of the Insolvency Act 1986 granting them the power to call for such a transfer as the beneficial owner? The individual, as co-trustee and beneficiary, would consent to such an arrangement.

For the purpose of this Q&A we have assumed that the land is registered and that both parties are registered as joint owners on the legal title....

22nd Jan

Q&As

If a notice has been entered on the register of a property in relation to an equitable charge created by an interim charging order (no restriction has been entered), can the registered proprietor register a subsequent legal charge over the property? Will the subsequent legal charge have priority over the equitable charge created by the interim charging order?

In response to this Q&A, we have assumed that the registered proprietor is the sole owner of the property, there has not been a transfer of the...

22nd Jan

Q&As

Can a discharged bankrupt (B) make an application for adverse possession of land where: B was once the registered proprietor of the land but his interest in the land was disclaimed by his Trustee in Bankruptcy during his bankruptcy, and B has remained in occupation of the land since the disclaimer for over ten years?

BankruptcyWhile this Q&A mentions both undischarged and discharged bankrupt, we have focused on ‘discharged’. We have also assumed that this Q&A is...

22nd Jan

Q&As

A tenant has entered into a company voluntary arrangement (CVA) and is consequently paying 50% of the contractual rent under the CVA. At the same time they are negotiating a new commercial lease regulated by the Landlord and Tenant Act 1954. Will an application made to the court adversely affect the amount of rent the tenant is paying? Also the landlord is entitled to give nine months notice under the CVA to bring the lease to an end. Can they still do this after protective proceedings have been commenced by the tenant?

Where a tenant company enters into a company voluntary arrangement (CVA), there are a number of restrictions upon the ability of the landlord to...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

Where a landlord holds money on trust for a tenant pursuant to a rent deposit deed and a tenant goes into liquidation prior to the landlord drawing down on the rent deposit deed in accordance with the deed for arrears in rent existing prior to liquidation, do the sums forming the deed form part of the liquidation and will the landlord become an unsecured creditor for outstanding rent?

A rent deposit is a sum of money that is deposited by a tenant when it takes a lease of premises as security against the non-payment of rent and other...

22nd Jan

Q&As

What is the position whereby the guarantor of an authorised guarantee agreement has been dissolved and the lease is silent?

When a company is dissolved, all property and rights vested in or held on trust for a company immediately before dissolution are deemed to be bona...

22nd Jan

Q&As

If property is held on the basis of a joint tenancy by two individuals and an interim charging order is issued against the interest of one of the joint tenants, does this sever the joint tenancy? Is so, how would the beneficial interests be held following the court order, and in what proportions?

An interim charging order creates an immediate, albeit defeasible, charge over a judgment debtor’s property. The charge takes effect from the date of...

Produced in partnership with Anna Metcalfe of St Philips Chambers 22nd Jan

Q&As

Can you apply for security by way of a charging order over land against an individual who is the beneficiary, to said property, under a Will?

Until the property is vested in the beneficiary, the trustees hold on a bare trust and the beneficiary would have a mere equitable interest.Of course,...

22nd Jan

Q&As

Where a private individual who has guaranteed a commercial lease dies, would the landlord have a claim against the guarantor’s estate for rent arrears? Would this be in addition to any claim they would have against the previous tenant under an authorised guarantee agreement and could the landlord choose which party to pursue in preference to the other?

It is commonplace for the landlord of a commercial tenant to require a guarantee in respect of the obligations under the lease. This is particularly...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

CPR 73.10C makes provision in respect of enforcing charging orders by way of an order for sale. Do the provisions of CPR 40 also apply in that context, for example in respect of the power to order up possession of land under CPR 40.17 and regarding applications to court in respect of incumbrances under CPR PD 40D?

CPR 73 sets out the procedure for the obtaining of a charging order over property or securities to secure a judgment debt. The court will make an...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

A legal charge over a property does not contain any power to appoint a receiver or take possession. The chargee needs to take possession of the property in order to discharge an outstanding debt. Would the correct procedure be for the chargee to apply for an order for sale or an order for possession?

A legal charge provides notice to the world of a security enforceable against the equity in the property against which it is secured (or, where there...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

Where a tenant company has filed a company voluntary arrangement (CVA) and wishes to assign the lease, should the landlord deal with the tenant or its insolvency practitioners in that regard? And, in the context of a CVA, can the landlord request an authorised guarantee agreement from the original guarantor?

Although the supervisor of a company voluntary arrangement (CVA) will be an insolvency practitioner (and their role is to ensure that the proposals...

Produced in partnership with Helen Galley of XXIV Old Buildings 22nd Jan

Q&As

Where the beneficial interest in freehold property was owned by two companies as tenants in common prior to dissolution of one of the companies, and the Treasury Solicitor has disclaimed the property, what happens to the dissolved companies’ interest following disclaimer?

We have been unable to find definitive authority on how freehold property would be treated. However, the below content may assist with your...

22nd Jan

Q&As

A money judgment has been obtained. A British Virgin Islands company owns a property which is about to be sold. The judgment debtor is putatively a shareholder of the company registered as proprietor. There is a restriction on the property. Can it be said that the client is therefore an incumbrancer for the purposes of section 105 of the Law of Property Act 1925?

Application of proceeds for saleSection 105 of the Law of Property Act 1925 (LPA 1925) provides thus:‘Application of proceeds of saleThe money which...

Produced in partnership with Christopher Snell of New Square Chambers 22nd Jan

Q&As

Can a buyer rely on the Insolvency Act 1994 where the seller of the property was a party to a transaction at an undervalue when the property was transferred from joint names of the seller, X, and Y, into names of the seller and X?

For the purpose of answering this Q&A, it is assumed that the sellers, X and Y are all individuals, and that none of them are corporate...

22nd Jan

Q&As

Where a bankrupt’s home is being sold with the bankrupts agreement without an order for sale and the bankrupt is the registered owner, does the bankrupt need to sign the sale agreement and TR1 as well as the trustee?

For the purposes of this Q&A, we have assumed that the bankrupt was the sole legal owner of the property. Where an individual is declared bankrupt and...

22nd Jan