Site acquisition and vacant possession

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PizzaExpress—Part 26A restructuring plan sanction hearing

The following Banking & Finance news provides comprehensive and up to date legal information on PizzaExpress—Part 26A restructuring plan sanction hearing

Corporate Insolvency and Governance Bill—a view from the restructuring and insolvency profession

The following Banking & Finance news provides comprehensive and up to date legal information on Corporate Insolvency and Governance Bill—a view from the restructuring and insolvency profession

The practice of filing a notice of intention (JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd)

The following Banking & Finance news provides comprehensive and up to date legal information on The practice of filing a notice of intention (JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd)

Scope of lending bank’s duty to commercial borrower to treat the customer fairly (Morley v RBS)

The following Banking & Finance news provides comprehensive and up to date legal information on Scope of lending bank’s duty to commercial borrower to treat the customer fairly (Morley v RBS)

Featured Property content

What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

Overreaching—sales by trustees of land

Broadly, the doctrine of overreaching enables purchasers (which includes tenants and mortgagees) in good faith for money or money’s worth to rely...

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...

Benevolent funds

A benevolent fund is an institution, including a body of trustees, which holds funds on trust for the purpose of relieving poverty amongst a defined...

Practice notes

Remedies for breach of restrictive covenants

Damages or injunction — the testThe primary remedy for breach of a restrictive covenant is a permanent injunction to restrain the breach. However, the...

9th Nov

Practice notes

Standard Commercial Property Conditions (Second Edition)

The second edition of the Standard Commercial Property Conditions came into force on 1 June 2004 and these conditions are incorporated into many...

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

Tacit relocation in commercial leases in Scotland

In Scotland, at common law, a lease does not actually end on the specified expiry date (ish) unless:•either party gives correct and timeous...

Produced in partnership with Kenneth S Gerber of Mitchells Roberton 12th Jan

Scottish Law

Practice notes

Insurance—non-vitiation (non-invalidation) clauses

Vitiation of an insurance policyAn insurance policy may be vitiated (or invalidated) if the insured:•misrepresents or fails to disclose any material...

9th Nov

In-house

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

Practice notes

Implied easements—common law

There are three different ways by which an easement can be implied at common law:•necessity•intended use•the rule in Wheeldon v BurrowsThe implied...

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

Guide to reviewing certificate of title

Coronavirus (COVID-19): The requirements to obtain an EPC before a property is sold or let can be difficult to satisfy when social distancing measures...

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

Concurrent and reversionary leases

There can be only one lease at a time giving a right to possession and occupation of property. Consequently, if a landlord subsequently grants a lease...

9th Nov

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

What is a good and marketable title?

A good marketable title is shown where a seller is able to deduce a good title to the property he has contracted to sell. The seller is not required...

9th Nov

Practice notes

Enquiries before contract

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the COVID-19 outbreak....

9th Nov

Practice notes

Double funding

Brexit: The UK left the EU on 31 January 2020. This has implications for the schemes providing for agricultural subsidies in England and Wales, which...

9th Nov

Most recent Site acquisition and vacant possession content

Q&As

Where there is no use of vacant land what searches and enquires should be undertaken?

As is the case with all property acquisitions it is prudent to undertake all relevant searches and raise all relevant enquires.You may find it useful...

22nd Jan

Q&As

A telecommunications operator’s lease of a rooftop site was terminated on forfeiture of a headlease. The freeholder then served a paragraph 21 notice under the Electronic Communications Code, and the operator served a counter notice. The freeholder has issued possession proceedings which have been listed for hearing. The operator intends to serve a paragraph 5 notice before the hearing and seek further directions in that regard. Should the proceedings be treated as a possession claim under CPR Part 55 and accordingly does the operator need to file a defence within 14 days?

It is assumed that there is a headlease which has been forfeited, and that any sub-leases under this lease have also come to an end. The Electronics...

22nd Jan

Q&As

Can the owners of a property fronting an unadopted road (which they enjoy a right of way over) force an adjoining landowner to contribute to a proportion of the cost of repair and/or of bringing the road up to an adopted standard, if the council decided to adopt it, if there is a positive covenant to repair which is backed up by an indemnity covenant in the title?

Case studyThe landowner with the burden of the positive covenant to maintain/repair has no requirement or ability to use the unadopted road and access...

Produced in partnership with David Sharpe of 12 King's Bench Walk Chambers 22nd Jan

Q&As

Where an electricity substation is let on a business lease and the land has planning permission for redevelopment, the owner intends to serve an s 25 notice to end the lease at the end of its term. Is there any provision under the Electricity Act 1989 or regulations flowing from it that the electrical network operator tenant can use as an additional defence to require the landlord to grant it a new lease?

This Q&A relates to any special provisions relating to the ending of a lease for an electricity substation.It is occasionally the case that a party...

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

Q&As

In relation to a compulsory purchase order for a highway scheme: where a long leaseholder is listed as a qualifying interest within table 2 of the order, what compensation claim can they make as tenant whose rights to non-exclusive car parking and accessway into a retail park are being affected (but its actual demise is not)? Should the freeholder landlord make a compensation claim for both itself and its tenants for all land being acquired under the CPO? How should the landlord deal with the affected leases following confirmation of the order (ie should they be varied to reflect the new position post CPO)? Would a tenant have the right to surrender their lease with no penalties under the Landlord and Tenant Act 1954 in the event the highway works affected their business in future?

Highways England is an entity established and owned by the government to manage the motorways and A-roads in England. It has been granted the ability...

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

Q&As

Does the ad medium filum rule apply in a situation where a landowner owns both side of a lane in unknown ownership (and therefore unregistered) and is it possible to make an application to Land Registry to register ownership of the lane under the ad medium filum rule?

The ‘ad medium filum’ rule is a rebuttable presumption that an owner of land which abuts a public or private highway also owns the soil of the...

22nd Jan

Q&As

A garden at a residential property is subject to a lease granted in 1978 to the gas board for gas governor kiosk. The lease contains a provision ‘The tenancy hereby created may be determined by either party giving to the other six months previous notice in writing expiring at any time’. If the owner of the garden exercises the break option, are there statutory powers protecting the gas board (now National Grid/Cadent Gas) that would override this and prevent the garden owner obtaining vacant possession?

The statutory powers of gas providers are governed by the Gas Act 1986 (GA 1986) which was enacted after the lease in question here.If the successor...

22nd Jan

Q&As

Can an easement be granted for the benefit of the dominant land where the grantee is not named—or is only identified as 'the owner of the freehold estate comprising the dominant land' (such freehold estate being identified in the deed of grant)?

No easement can exist without both an identifiable servient and dominant tenement and those two estates being in separate ownership. See Practice...

Produced in partnership with Brie Stevens-Hoare QC of Hardwicke Chambers 22nd Jan

Q&As

The superior lease is being surrendered by a deed of surrender between the freeholder and the superior landlord. Contemporaneously, the sub-lease is being surrendered by operation of law by a party taking an assignment of the sub-lease and the same party simultaneously being granted a new sub-lease by the superior landlord. Will the assignment of an unregistered sub-lease and grant of a new sub-lease act as surrender by operation of law? How should a new sub-tenant and a sub-tenant’s mortgagee seek protection of their interests at HM Land Registry? What HM Land Registry searches should be undertaken? If the freehold is subject to a charge will mortgagee consent be required for (i) the surrender and re-grant of the superior lease; and (ii) the grant of the new sub-lease?

A lease may be surrendered in one of two ways: expressly or by operation of law. As for express surrender, as a disposal of interest in land, s...

22nd Jan

Q&As

Where a single parcel of land is to be split into two separate parcels (with separate title numbers), can easements be created over one of the new parcels to prevent the parcel being landlocked, given that both parcels will remain in common ownership? The parcel to be subject to the easements will also be charged.

An easement is a right granted to the owner from time to time of one piece of land over another piece of land for the benefit of the former. The two...

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

Q&As

How can a landlord obtain vacant possession from a sub-tenant under a Landlord and Tenant Act 1954 protected tenant?

If a sub-tenancy is protected under Part II of the Landlord and Tenant Act 1954 (LTA 1954), the 'competent landlord' will need to serve a section 25...

22nd Jan

Q&As

A client owns land which is subject to a wayleave agreement. The client intends to develop the land and served notice to terminate the wayleave. In response, the electricity company applied for a 'necessary wayleave'. Since this, development has gone ahead around the existing apparatus. However, the electricity company has sought to obstruct development works which has resulted in the owner incurring loss over and above that which they would have incurred. Are these losses likely to be recoverable under the disturbance compensation provisions of paragraph 7(2) of Schedule 4 to the Electricity Act 1989?

Paragraph 7(2) of Schedule 4 to the Electricity Act 1989 (EA 1989) states that:‘Where in the exercise of any right conferred by such a wayleave any...

22nd Jan

Q&As

Where a dominant tenement has the right to use 'drains water and gas pipes electricity wires and cables' which serve it and the servient tenement as well as connecting both to ‘Public Services’ with the proviso that the dominant owner pay a 'rateable proportion of the expense of keeping the said drains sewers and pipes in repair', would this include a pumping station on the servient tenement serving the dominant land? Is there any case law which would indicate that there was an implied common law duty to pay a contribution towards maintenance of the pumping station?

The Q&A contemplates the dominant tenement (DT) having to pay for its use of the easement which is a positive covenant. The easement in question...

22nd Jan

Q&As

An undertenant is holding over an underlease which is protected by the LTA 1954. Renewal of the underlease is being considered. Can the undertenant force the landlord to grant/consent to a new underlease even though the tenant’s lease contains a break clause—exercisable before expiry of the term of the new underlease? What would happen in the event that the tenant did exercise its break clause?

In order to request the grant of a renewal lease, the undertenant will need to meet the qualifying criteria’s set out in section 23 of the 1954...

Produced in partnership with Kate Andrews of Hamlins 22nd Jan

Q&As

What is the normal procedure for removing a substation? What if the substation (located in the basement of privately-owned office blocks) has no lease or wayleave or documentation permitting it to be there?

The first step to decide how to remove a substation is to ascertain the terms on which the occupier is in possession. Even if there is no formal...

22nd Jan

Q&As

Would a Compulsory Purchase Order, if it were to include land on which telecommunications apparatus was installed, trump/override the rights of the relevant operator of the telecommunications equipment as under the electronic communications code? Would the answer be different once the new electronic communications code (as updated by the Digital Economy Act 2017 which was given royal assent on 27 April) comes into force?

Usually where land is compulsorily purchased, section 203 of the Housing and Planning Act 2016 (HPA 2016) would apply. This provides the power to...

22nd Jan

Q&As

What are the obligations of a utilities supplier to remove gas pipes or electricity cables from land that is due to be excavated?

In answering this Q&A, we have assumed this scenario does not relate to the Electronic Communications Code, which is a separate regime for certain...

22nd Jan

Q&As

Where Company A holds a concurrent lease of an area of a building that is to be subject to a deed of surrender between Company A and Company B, should the freeholder be joined in as a party to the deed of surrender? There is no restriction on surrendering or assignment in the immediate lease of the area.

In this scenario, it appears that Company A has a concurrent lease of the surrender area. You may wish to review Practice Note which deals with...

22nd Jan

Q&As

A notice to complete is served in relation to the sale of a property bought at auction under the RICS (Royal Institution of Chartered Surveyors) Common Auction Conditions. The notice is served under the General Auction Conditions of Sale but mistakenly the notice makes reference to the ‘Special Conditions’ and not the ‘General Auction Conditions’. Will this mistake invalidate the notice to complete? Is it possible to serve a second correct notice to complete and, if so, will it be necessary to wait until the initial notice to complete has expired before doing so?

The Royal Institution of Chartered Surveyors (RICS) Common Auction Conditions (see RICS—Auctioneers selling real estate (incorporating Common Auction...

22nd Jan

Q&As