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Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

The following Banking & Finance news provides comprehensive and up to date legal information on Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

The following Property Disputes news provides comprehensive and up to date legal information on Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

The following Banking & Finance news provides comprehensive and up to date legal information on Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

Property weekly highlights—8 April 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—8 April 2021

Featured Property content

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...

Resulting trusts

Resulting trusts represent one of the three types of trust which do not require to be declared or evidenced in writing. The others are constructive...

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...

Quistclose trusts

What is a Quistclose trust?A Quistclose trust is an example of an ‘automatic’ resulting trust, ie a trust which arises where property is transferred...

Practice notes

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...

9th Nov

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

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

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

The ‘ad medium filum’ rule

The ‘ad medium filum’ rule is a rebuttable presumption that an owner of land which abuts either:•a public or private highway, or•a non-tidal river or...

9th Nov

Precedents

Specific clauses for transfers—indemnity covenant

Panel 11 (transfer of whole)/panel 12 (transfer of part)—Additional provisions1Definitions[Lease•the lease particulars of which are set out in...

9th Nov

Precedents

Rent authority letter—commercial property

[To be printed on Landlord’s letterheaded paper]Our Ref:Date:To: [insert name of Tenant]From: [insert name of previous Landlord] [of [insert address]...

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

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

Precedents

Rent Review Memorandum

Rent Review MemorandumLandlord•[insert full name of Landlord] [of [insert address] OR incorporated in England and Wales with company registration...

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

Differences—joint insured and noting

Joint insuranceJoint insurance arises where two or more people insure separate insurable interests in the same property with the same insurer under a...

9th Nov

Precedents

Landlord’s Section 45 Counter—notice to Tenant s 42 Notice

Under s 45 Leasehold Reform Housing and Urban Development Act 1993 (the ‘1993 Act’)Flat:[insert address and description of the Property]To:[insert...

9th Nov

Most recent Q&As content

Q&As

Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails?

The requirements for variation of a deedIt was formerly a rule of common law that contracts entered into by way of deed could only be varied by deed....

12th Apr

Q&As

I act for a buyer purchasing a commercial property subject to a commercial lease. The lease is dated 2016 and the term is continuing. The energy performance certificates (EPC) rating of the property is an 'F'. Is the continuing letting of this property unlawful because of the EPC rating?

It is assumed that the query relates to England and Wales.Minimum energy efficiency requirements for domestic and non-domestic properties enacted...

12th Apr

Q&As

Will using a landlord break clause in the last year of a commercial lease, have the same effect as contracting out of the Landlord and Tenant Act 1954?

Part II of the Landlord and Tenant Act 1954 (LTA 1954) applies to give security of tenure to tenants occupying premises for the purpose of a business,...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 9th Apr

Q&As

Will a section 177 of the Highways Act 1980 licence be valid where a building oversails land belonging to a third party and consent has not been obtained from the third party but the local authority has provided consent? Is there any restriction on how long a section 177 highways licence can be granted for?

Consent of adjoining ownerTrespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the...

9th Apr

Q&As

If a tenancy agreement does not exist how can the occupier be evicted from the property? The property belongs to an estate and the executor is refusing to move out and is breaching their duty as an executor as distributions have not been equalised in accordance with the deceased's Will.

How can an occupier be evicted from the property?A tenancy agreement is merely a written expression of a contractual relationship between the parties....

Produced in partnership with Dr David Smith of JMW Solicitors LLP 9th Apr

Q&As

If an agreed form of transfer is purportedly attached to an option agreement (‘the transfer to X will be in the agreed form annexed to this agreement’), but is not attached and in fact does not exist, does this affect the validity of the option agreement?

It is common for a contract that relates to land, such as an option agreement, to provide that the terms of the transfer in the event that a transfer...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

Q&As

Is a Landlord and Tenant Act 1954 simple declaration signed with an electronic signature valid?

We are not aware of any authority as to whether or not a Landlord and Tenant Act 1954 (LTA 1954) simple declaration can be returned with an electronic...

8th Apr

Q&As

Where a (security) trust is intended to benefit future beneficiaries but initially only benefits one party who is both trustee and sole beneficiary is it arguable that the legal and beneficial interests do not merge? If they do merge, can the interests be demerged if there are new beneficiaries in the future (ie when the sole lender sells down the loan) by a contemporaneous declaration by the trustee that it holds the property on the terms of the trust?

We refer you to the following Practice Note which you may find useful for your purposes: The security agent and security trust provisions.It is quite...

8th Apr

Q&As

If I can’t meet the people I am contracting with to sign a contract, how do I execute a contract by virtual means?

Many businesses are closing their offices or recommending their staff work from home in an attempt to slow the spread of coronavirus (COVID-19). This...

8th Apr

COVID-19

Q&As

My company needs to enter into a document as a deed but everyone is working from home. Is it possible to execute a deed by virtual means?

Many businesses are closing their offices or recommending their staff work from home in an attempt to slow the spread of coronavirus (COVID-19). This...

8th Apr

COVID-19

Q&As

Where a charity, registered at Companies House and with the Charity Commission purchases property to serve as its head office, with the aid of a commercial mortgage, must the charge be registered at Companies House in the usual way?

Security over land that is created by a UK company is registrable at Companies House. This is the case regardless of whether the security is created...

8th Apr

Q&As

Is there a minimum number of trustees needed for a trust of land? Section 27 of the Law of Property Act 1925 states that two are needed for a valid receipt of purchase monies but while the property remains unsold, is one trustee able to act or should another be appointed?

Where there is more than one beneficial owner of real property, or where the beneficial owner differs from the legal owner, a trust of land will...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

Q&As

In light of coronavirus (COVID-19), when a client has just returned from Italy and thus witnessing security documentation in person is not possible for at least 10 days, would being present via Skype be sufficient for confirming the presence at deed signing? Are there any other procedures in place?

The Law Commission on Electronic Execution of Documents (Law Com No. 386) concludes that there is no need for formal primary legislation to reinforce...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

COVID-19

Q&As

Are mixed signings permissible? For example where one party to a deed signs a counterpart in wet ink and another signs a counterpart with an electronic signature; where one counterpart is wet ink signed and the other counterpart is signed by virtual means (a Mercury signature); or where one counterpart has a Mercury signature and the other counterpart has been signed with an electronic signature.

The practice of electronic signing of documents has risen in popularity in recent times, and has accelerated further as a result of the coronavirus...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

COVID-19

Q&As

Does the maxim ‘once a mortgage always a mortgage’, aligned to the equity of redemption principle, apply to prevent the mortgagee from transferring a property (ie an interest in land) to itself or a connected company? Or is the mortgagor’s only protection against this the mortgagee’s duty to get the best value on sale by a mortgagee, as well as the mortgagor’s right to redeem the charge?

The purpose of a mortgage is to provide security to a lender against a loan, meaning that if the borrower defaults the mortgagee can exercise the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

Q&As

Is it possible for a mortgagee to create a sub-charge over its security and have the same registered at the Land Registry without notice to the mortgagor registered proprietor of the property?

A sub-charge is a registerable disposition under section 27(3)(b) of the Land Registration Act 2002 (LRA 2002). See also LRA 2002, s 53.LRA 2002, s...

8th Apr

Q&As

Where residential properties built for a seller and based on the seller's design are sold, does the purchaser have any direct cause of action against the developer for any post-sale problems with the property?

Under the Defective Premises Act 1972 (DPA 1972), a person who takes on work for or in connection with the provision of a dwelling owes a duty to...

7th Apr

Q&As

Major works were carried out by the landlord to a commercial unit but not invoiced to the tenant and not recovered as service charge. The lease ended and a new lease was granted to the tenant. Can works that were carried out under the old lease be charged as service charge under the new lease when there are no clauses in the new lease allowing the landlord to claim for services provided during the old lease? Can the tenant be held liable for the works under the old lease once it has expired and no invoice was rendered during the term of the lease?

A commercial lease will often contain provision for the landlord to recover from the tenant the costs of maintaining the premises, for example in...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 7th Apr

Q&As

Is a licence to park cars in a car park personal to the parties to it? If so, does the purchaser of a car park take subject to the existing licence to park?

By its nature, a licence is a personal contractual arrangement between the parties. Therefore, a genuine car parking licence would be personal to the...

Produced in partnership with Emily Lam of Collyer Bristow 7th Apr

Q&As

The tenant of a grade II listed residential property (which is let under a 35-year old protected shorthold tenancy) is in need of a stairlift to assist with her mobility around the property. Does the landlord have to allow a stairlift to be fitted and does the landlord have to pay for it?

Equality Act 2010The Equality Act 2010 (EqA 2010) provides a framework for non-discrimination and related duties. The starting point is the ‘protected...

7th Apr