The Practical Lawyer

Landlord and tenant – commercial

CVA – use to reduce rent

 If a limited company is insolvent, it can use a CVA to pay creditors over a fixed period. If creditors agree, the limited company can continue trading. The CVA has been used by companies in the retail sector on the high street as a means to try to reduce the cost of expensive leases to enable them to continue trading. CVAs have been used to force a rent reduction, without similar cuts to other creditors. Debenhams attempted to compromise its liability for future rent and business rates using a standard model retail CVA – this was challenged by six of its Ls. They argued that the use of the CVA to effectively reduce rent was unfair and outside the jurisdiction of insolvency law. The HC rejected this view. It is thought that the failure of the challenge to the Debenhams CVAs may lead to an increase in their use in the retail sector.
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Brexit frustration – update

We reported in our April 2019 edition (p27) on the interesting case where the HC had to consider whether potential departure by the UK from the EU was sufficient to satisfy the legal meaning of frustration – so would Brexit allow a party to avoid a contract or a lease?
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LTA 1954 – validity of contracting out

The HC has heard a case concerning a number of leases entered into by The Fragrance Shop and the validity of the procedure for contracting those leases out of Part II of LTA 1954.
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Air space and ground below - common parts

UKUT has held that leases of the airspace above and ground below a leasehold block of flats must be classed as common parts of the building and were able to be acquired.

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Mutual enforcement – summary

We reported in our March 2019 edition (p27) on the case of Duval [2018] in which the CA held that L would be in breach of a lease covenant to enforce T’s obligations against other Ts if it granted a licence to carry out a prohibited action.
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RV – can demand be assumed?

To calculate the rateable value (RV) of a property, a valuation officer (VO) must work out what the open market rent would be for the property by applying the rating hypothesis. The purpose is to establish ‘the rent at which it is estimated the hereditament might reasonably be expected to let from year to year’.

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MEES non-domestic rentals – reminder

The MEES regulations are designed to tackle the least energy efficient properties in England and Wales and the Regs establish a minimum standard of EPC band E for domestic and non-domestic private rented property, affecting new tenancies and renewals since 1 April 2018.

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CPSEs – new versions

The Commercial Property Standard Enquiries (CPSE) have been updated.

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Service charges – recovery of more than 100%?

We reported in our February 2019 edition (p24) that the RICS Code of Practice Service Charges in Commercial Property (1st edition) comes into force on 1 April 2019.
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CVA – use to reduce rent
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