Archive for the ‘Property’ Category
Tuesday, May 21st, 2013
Marks & Spencer (M&S) has won its £1.1m claim against the landlord of its former head office in Paddington.
M&S was claiming for overpaid rent, service charges, insurance rent and car park licence fees after it had exercised a break clause in January 2012 – despite there being no contractual right to do so.
The judge rejected M&S’s first claim that sub-underleases for the premises expressly provided for repayment of rent and other charges for the period after the break clause; instead the judge accepted M&S’s second claim that a term should be implied to that effect adding such a term would be “eminently reasonable”, what the parties meant and “necessary to give business efficacy to the lease”.
Whilst we wait to see if the landlord will appeal at least we have the glimmer of common sense on this topic.
In the meantime our advice is that you always expressly deal with this issue in the lease in order to prevent any ambiguity.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sarah.parkinson@brownejacobson.com
Tags: case law, landlords, leases, Marks & Spencer, Sarah Parkinson
Posted in Property, Retail | No Comments »
Tuesday, May 21st, 2013
Hammersmatch v Saint-Gobain [2013] EWHC 1161 is worthy of a read.
The court’s analysis of the s.18 cap and the weight it put on the parties’ valuation experts forms the biggest part of the judgment for good reason – the landlord’s original cost of works claim of £5 million was limited by the cap to £900k. Given that reduction, it would be interesting to know how the landlord’s litigation costs were assessed.
There is also a cautionary reminder that emails between a client and its non-legal advisor can be disclosed in legal proceedings. Here the court took them into account when considering whether the landlord actually intended to undertake the works.
For more insight see our dilapidations training video on our dedicated retail law website.
Posted by Tim Rayner, who specialises in property litigation, advises in connection with the full spectrum of property related disputes and commerical property
Tim Rayner
0121 237 3949
tim.rayner@brownejacobson.com
Tags: building surveyors, Dilapidations, Tim Rayner
Posted in Commercial dispute resolution, Commercial Litigation, Government, Health, Litigation, Local Authorities, NHS, Property, Public Sector, Retail | No Comments »
Friday, May 17th, 2013
Alliance Boots and Morrisons have made fresh calls to the Government to reform business rates.
The two retailers made their submissions ahead of the first evidence session on Tuesday for the inquiry into the UK retail sector.
Morrisons said that “steep rises in business rates and lack of certainty in the rate-setting mechanism, are damaging confidence and weighing heavily on investment decisions” – a view which Alliance Boots and many others agree with.
Alliance Boots said that “the most significant challenge to operating successfully on high streets and town centres is business rates”.
Jeweller, F Hinds explained how it had to turn down “several” shops because the rates bill was so high and “often” higher than the rent itself – a situation faced by many SMEs.
We agree that businesses need to continue to lobby government to tackle this issue and hopefully this inquiry will go some way into making the Government realise the effect that the current business rates are having on the high street.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: Alliance Boots, business rates, high street, Morrisons, Sarah Parkinson
Posted in Brands, Government, Property, Retail | No Comments »
Thursday, April 18th, 2013
As widely expected, the Department of Health has today confirmed that for the next financial year commissioners will cover property costs shortfalls previously met by Primary Care Trusts (PCTs), arising from things such as voids or subsidised occupiers. However, individual commissioners still don’t know what their actual liability for these costs will be. Allocation figures given in December 2012 have been further ‘refined’ – and commissioners will discover their actual allocations later this month. The new figures are unlikely to be lower.
Occupiers though should not relax and feel it is ‘business as usual’ – subsidised occupancies will be moved to ‘full cost recovery rentals’ as soon as practicable. The guidance rightly warns against inadvertent impact on “financially vulnerable partner organisations”.
The stated aim of the funding arrangements for NHS Property Services Limited (NHSPS) and Community Health Partnerships Limited (CHP) is that they are fair and equitable to both commissioners and occupiers. However, it remains to be seen as to whether these changes may also impact upon service delivery.
Posted by Thomas Howard, who specialises in commercial property with extensive experience of advising health clients on all property related matters and advising commercial clients on site acquisitions and disposals.
Thomas Howard
0121 237 3951
thomas.howard@brownejacobson.com
Tags: Browne Jacobson LLP, CHP, Community Health Partnerships, funding, NHS, nhs property services, NHSPS, property, Tom Howard
Posted in Health, NHS, Property, Social Care | No Comments »
Tuesday, April 2nd, 2013
Designer and chairman Sir Paul Smith delivered a talk at Nottingham University’s business school recently and spoke of the balance that retailers (and other businesses) need to find in order to succeed.
Paul discussed the requirement to be different and stand out in a world where there is already too much of everything; too many of any given product and too many retailers selling them. Eye-catching window displays and lateral thinking when it comes to shopping experience are part of the picture, but Paul believes that success lies in ensuring a proper balance between the exciting and out-there and the stuff that pays the rent.
This balance, Paul said, has enabled his business to grow organically without taking on large debts. Though we think the difficulty in achieving this balance is shown all too clearly in the recent retail administrations of big names such as Blockbuster, HMV, Republic and Dreams (with HMV reportedly having debt of £345m at the time of its collapse).
Mark Hymers
0115 976 6081
mhymers@brownejacobson.com
Tags: administration, debts, Mark Hymers, Paul Smith, retailers, shopping experience
Posted in Brands, Property, Retail | No Comments »
Friday, March 15th, 2013
The Business, Innovation and Skills Committee are to launch an inquiry into Britain’s retail industry. The inquiry comes after the collapse of a number of major high street retailers in the past few months.
The Committee will examine the Government’s support for the industry – in particular its response to the Portas Review.
It has been reported that the £10m government fund, set up last year to help revive the high street has barely been touched – reports suggesting as little as 7% of the money has actually been spent.
Councils have been criticised for sitting on the money rather than using it to deal with the crisis.
The Committee will also explore the “impact of on-line sales and direct sales on high street retailers”.
Its findings could help highlight the issues faced by the retail sector; however whether these issues are actually addressed remains to be seen…
Posted by Claire Gay, who specialises in retail property, dealing with acquisitions, disposals and management of retail, leisure and warehouse properties.
Claire Gay
0115 976 6145
cgay@brownejacobson.com
Tags: BIS, BIS Committee, Business, Claire Gay, Innovation and Skills Committee, inquiry, Retail
Posted in Property, Retail | No Comments »
Friday, March 1st, 2013
Many of those involved in the negotiation, calculation and payment of GP rents in out-going primary care trusts (PCTs) have asked what is to happen to the Premises Costs Directions. At present, there appears to be no guidance or decision.
Interestingly, the Directions are specifically given to PCTs and the definition of PCTs in the Directions does not refer to statutory successors.
Many may have expected that the Government would have released proposals to update or replace the definitions, but with 4 weeks to go until the dissolution of all PCTs, we still appear to be none the wiser. Could the Government issue some sort of revision to replace the defined term of PCTs to refer to the National Commissioning Board instead? Possibly.
In the meantime, until something is released, we can only presume that area teams of the National Commissioning Board will continue to make payments in the same manner as PCTs have done for the last 9 years.
Posted by Mick Suggett, who specialises in commercial freehold and leasehold property within the public health and local authority sectors; preparation of reports on title for lenders and public bodies.
Mick Suggett
0115 908 4885
msuggett@brownejacobson.com
Tags: Area Teams, government, Mick Suggett, National Commissioning Board, PCT, Premises Costs Directions, primary care trusts
Posted in Government, Government bodies, Health, In-house Lawyers, NHS, Property, Public Sector | No Comments »
Friday, February 1st, 2013
Primary care trust (PCT) finance directors have until today to amend their financial returns for property related costs. They must now reflect the gross expenditure, sums recharged to tenants and unrecovered costs.
Historically, PCTs have undercharged when leasing their properties, or formal tenancies are not in place, leading to a gap in running costs (estimated to be £500 million pa) which PCTs have covered by cross funding.
The amended returns are to “enable NHS Property Services (PS) to recover all property related costs from building users and the appropriate Commissioner”, indicating that NHS PS may seek to recover deficiencies from clinical commissioning groups (CCGs).
If CCGs inherit the budgets that previously bridged the gap, this would seem fair. It would also incentivise CCGs to assist NHS PS in maximising estate efficiencies.
However, CCGs don’t geographically or structurally mirror their predecessors and some estates budget will transfer to NHS PS.
With budgets remaining tight, this will be debated further as the scale of the issues becomes apparent.
Posted by Victoria McIntyre, Specialising in: landlord and tenant work, commercial and residential conveyancing and advising health clients on all public authority property related matters.
Victoria McIntyre
0115 976 6030
Victoria.McIntyre@brownejacobson.com
Tags: CCG, NHS, PCT, property, property costs, Victoria McIntyre
Posted in Health, NHS, Property | No Comments »
Monday, January 14th, 2013
I’ve had a number of queries from retailers requesting further information to my blog last week on the change in EPC regulations. Accordingly, I thought it might be helpful just to highlight a couple of the favourites:
- What is the meaning of “total useful floor area”?
Regulation 2 of the 2012 Regulations states that it means the gross floor area as measured in accordance with the current RICS guidance. The good news is that you won’t need to worry about re-measuring anything because this floor area is already stated on the EPC itself.
- What happens if we don’t?
There is apparently no sanction for not displaying the EPC at the moment. However, commentaries suggest that this may well be an oversight in the drafting and may change – which, together with potential PR implications, may encourage retailers to comply!
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: Energy Performance Certificate, EPC, regulations, Sarah Parkinson
Posted in Fashion & Luxury Retail, Food & drink, In-house Lawyers, Property, Retail | No Comments »
Friday, January 11th, 2013
Don’t forget that new Energy Performance Certificate (EPC) regulations came into force this week.
Most of the changes are highly technical but one practical point is worth highlighting.
From 9 January 2013, there is an obligation to display an EPC in any non-residential building that is frequently visited by members of the public (e.g. shops and restaurants) where the building has a total useful floor area of more than 500 sq metres.
This obligation only arises where an EPC was previously provided under the regulations so there’s no need to commission one just for this purpose.
Posted by Sarah Parkinson, specialising in retail, acting for household retail tenants – with over 20 years experience, including five years as an in-house solicitor at The Boots Company. Also experienced in property development transactions and complex projects.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: Energy Performance Certificate, EPC, regulations, Sarah Parkinson
Posted in Fashion & Luxury Retail, Food & drink, In-house Lawyers, Property, Retail | No Comments »
Friday, January 11th, 2013
After a 3 month consultation the Office of National Statistics (ONS) has chosen not to bring the RPI more in line with the slower rising CPI. However, the ONS will be introducing a new, additional index of inflation – RPIJ.
The RPIJ will use a different formula than that used to calculate RPI and the ONS believe that this will be a much better measure of inflation.
So, away from the world of pension funds etc, what does this mean for tenants? Well, for existing lease arrangements, tenants will be stuck with the contractual RPI and will have to continue paying rents that are calculated using a formula which is not consistent with inflation. However, once the RPIJ starts to be published in March 2013, we’ll certainly be asking our retailer clients tenants whether they’d like to consider a move to the new RPIJ.
Posted by Sarah Parkinson, specialising in retail, acting for household retail tenants – with over 20 years experience, including five years as an in-house solicitor at The Boots Company. Also experienced in property development transactions and complex projects.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: office of national statistics, Retail Price Index, RPI, RPI to CPI, RPIJ, Sarah Parkinson, tenants
Posted in Fashion & Luxury Retail, Property, Retail | No Comments »
Wednesday, January 9th, 2013
The final report of the Trust Special Administrator appointed to South London Healthcare NHS Trust has been put before the Secretary of State for Health. The administrator’s opening position is that adopting the status quo is “not an option”. His recommendation is to dissolve the Trust and divide the sites between three other trusts.
Whilst the Secretary of State has 30 days in which to respond, immediate thoughts turn to the recommendations for PFI projects at the Trust, as these are intrinsically linked with its failings. The report appears to endorse government support to the successor trusts for PFI costs until the contracts “are modified or end”. This will please the investor market and appears to have public support. However, the possibility of ‘modifications’ to PFI deals will be a concern and we await the Secretary of State’s response.
With George Osborne looking to re-invigorate PFI with his new PF2, the Treasury will want to ensure that nothing risks deterring future investment in such schemes.
Posted by Thomas Howard, who specialises in commercial property with extensive experience of advising health clients on all property related matters and advising commercial clients on site acquisitions and disposals.
Thomas Howard
0121 237 3951
thoward@brownejacobson.com
Tags: PFI, Secretary of State, Stewart Gregory, Tom Howard
Posted in Government, Health, NHS, Projects & partnerships, Property, Public Sector | No Comments »
Wednesday, October 31st, 2012
Following closely in the footsteps of Mary Portas, the Distressed Retail Property Taskforce has been armed with the ‘task’ of reducing the amount of empty and dilapidated shops in the UK towns and cities.
Its objective over the next six months is to identify the true extent of the problem and the towns most affected. With new studies reporting the rate of empty shops being higher now than when the financial crisis hit serious action needs to be taken to resolve this problem.
Perhaps, we should recognise our traditional town centres are no more and utilise the space in ways which will greatly benefit the communities they are designed to serve. Or, if retail is to be brought back to the high streets, then serious action needs to be taken before the situation worsens. This is certainly a mammoth of a task which Mark Williams, chairman of the Taskforce recognises “will require public and private sectors coming together to find ways of financing these changes”.
Suki Tonks
0115 976 6519
stonks@brownejacobson.com
Tags: empty properties, high street, Mary Portas, suki tonks
Posted in Construction, Fashion & Luxury Retail, Local Authorities, Planning, Projects & partnerships, Property, Public Sector, Retail | No Comments »
Thursday, October 4th, 2012
Retailers are throwing their weight behind the Fair Rates for Retail campaign which was launched last week by the British Retail Consortium and Retail Week.
The campaign to lobby the Government to freeze business rates next year, comes after two years of punitive rates increases which has added more than £500m to retailers’ costs.
Retailers are also urging for a change in how rates are calculated. At present the September Retail Price Index will be the key determinant. However, retailers want the Government to switch to a 12 month average of the less volatile Consumer Price Index (CPI).
At present retailers are facing a likely increase of £200m; the CPI usually moves in a narrower range and could ensure greater long-term affordability and certainty for the retailers.
We think the Government needs to seriously consider the proposals in order to assist an already burdened retail industry.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: British Retail Consortium, Consumer Price Index, Fair Rates for Retail campaign, property, Retail Price Index
Posted in Property, Retail | No Comments »
Thursday, October 4th, 2012
West End retailers are preparing for a “battle” to convince London authorities to reduce the number of buses in the Capital.
Following last weeks unveiling of The New West End Company’s five year business plan and £25m investment, senior figures called on the Government to re-examine ways to reduce congestion in the Capital.
The Deputy Mayor of London for Business and Enterprise expressed concern stating that the changes were unnecessary and that the busy public transport was a sign of the retailers’ popularity and success.
The Company will lead a transport conference in November which will bring together experts to help inspire new ideas and investigate all possible options.
For several years now the transport planning has been dominated by the Olympics. So, with the Games out of the way we think its time that the Government and the local authorities consider all possible options to reduce congestion in the Capital.
Posted by Claire Gay, who specialises in retail property, dealing with acquisitions, disposals and management of retail, leisure and warehouse properties.
Claire Gay
0115 976 6145
cgay@brownejacobson.com
Tags: Claire Gay, property
Posted in Fashion & Luxury Retail, Property, Retail | No Comments »
Wednesday, September 19th, 2012
A tax tribunal has struck down a Stamp Duty Land Tax (SDLT) saving scheme, which used a combination of an unlimited company as the intermediate purchaser and a distribution in specie of the property by the company to the end purchaser.
The Tribunal’s main grounds were (i) the distribution in specie had been unlawful under the Companies Act, and (ii) applying a purposive interpretation of the SDLT sub sale relief legislation at s45(3) Finance Act 2003, as to what could be caught as chargeable consideration for SDLT purposes.
The decision highlights the recent approach of the courts in challenging tax avoidance. We expect further challenges to sub-sale SDLT schemes by HMRC.
It also highlights the risks posed to advisers which could ultimately impact on professional indemnity insurance for those professionals involved in promoting, implementing and advising on such schemes.
Finally, the facts of this case took place before the introduction of the general SDLT anti-avoidance legislation which further strengthens HMRC’s position against schemes such as these.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
Tags: hmrc, Jonathan Newbold, stamp duty, tax avoidance schemes
Posted in Commercial dispute resolution, Fashion & Luxury Retail, In-house Lawyers, Professional Indemnity, Property, Retail, Tax | No Comments »
Friday, August 31st, 2012
On 1st September 2012 s.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force to create, in certain circumstances, a new offence of squatting in a residential building.
A trespasser commits the offence if they enter residential premises as a trespasser; the person knows or ought to know they are a trespasser and the person is living in the building or intends to live there for any period.
The new offence will be of limited use to social landlords. For example, if a tenant unlawfully sub-lets the property to another occupant then it is unlikely that the offence will have been committed because the occupants will have entered the property with the consent of the tenant and not as trespassers.
In the cases where s.144 applies, it will be important to have a good line of communication with the police so that when any arrests are made the landlord will be in the locality with a locksmith to re-secure their property.
Posted by Gary Ekpenyoung, who specialises in housing management, anti-social behaviour and property litigation; extensive experience of the regulation of social housing and residential landlord and tenant law.
Gary Ekpenyoung
0115 976 6168
gekpenyoung@brownejacobson.com
Tags: gary ekpenyoung, landlords, legal aid, property, residential property, squatting
Posted in Property | No Comments »
Tuesday, August 21st, 2012
The Government has rejected a proposal to cut planning restrictions on shop security shutters.
Last year’s riots prompted a consultation by the Department for Communities and Local Government (DCLG).
A government spokesman said that: “police and councils had advised that relaxing these rules could have the opposite effect and increase crime and anti-social behaviour by giving High Streets the appearance of being under siege.”
The Association of Convenience Stores has questioned the Governments true commitment to cutting the red tape despite David Cameron acknowledging the difficulty shops faced to put up protective shutters. He had vowed to “weed out unnecessary planning regulations”
Our view is that retailers don’t need the added worry and costs of security issues in such a difficult economic climate. Surely the Government hasn’t forgotten the impact of the riots? The trouble is – the reasons behind them have not gone away.
Posted by Claire Gay, who specialises in retail property, dealing with acquisitions, disposals and management of retail, leisure and warehouse properties.
Claire Gay
0115 976 6145
cgay@brownejacobson.com
Tags: antisocial behaviour order, association of convenience stores, Claire Gay, local government, planning restrictions, shop security shutters
Posted in Planning, Property, Retail | No Comments »
Thursday, August 9th, 2012
The Department for Education has defended their stance on selling off playing fields on their website, arguing that all 21 sites were sold for good reason, including the fact that three were school facilities were leased to organisations to improve sporting provision.
This update provides perspective, but is unlikely to dampen interest in school sport provision in light of our Olympic success. News reports highlighting the fact that the majority of our top athletes are privately educated coupled with the government’s recent decision to scrap the compulsory two hours of physical education a week for children in local authority maintained schools, will ensure the focus remains on state funding and support for school sport.
On the back of our Olympic success the government has the perfect opportunity to develop its sports education policy, provide greater funding opportunities and ensure children from every background have access to a range of sport at schools. Will they take it?
Posted by Hayley Roberts, who specialises in education law advice to schools and academies, including advice on teaching schools, collaboration models and partnership structures, school companies, and a wide range of pastoral issues.
Hayley Roberts
0121 237 3994
hroberts@brownejacobson.com
Tags: Hayley Roberts, London 2012 Olympics, playing fields, Sport
Posted in Education, Local Authorities, Property | No Comments »
Wednesday, August 8th, 2012
The Guardian have today reported that despite the pledge of the coalition government to “protect school playing fields” Education Secretary, Michael Gove, has approved 21 out of 22 requests to sell school fields since 2010.
The criteria required for a request to be agreed is that the “sports needs of the school can continue to be met” and that the school reinvests the proceeds of sale to improve sports or educational facilities, preferably in outdoor sports facilities.
With over 50% of Olympic medal winners for Team GB being privately educated, there has been concern over the adequacy of state school sports facilities. Many people, including the British Olympic Association, are calling for an urgent overhaul of school sports policy.
Giving all students the opportunity to get involved in a variety of sports, both indoor and outdoor is an important part of this policy and, without a school playing field, it is difficult to see how schools can successfully improve their sports facilities to cater for the next generation of Olympic athletes.
Lauren Millward
0115 908 4864
lmillward@brownejacobson.com
Tags: investment in sport, Lauren Milward, London 2012 Olympics, playing fields, sports
Posted in Education, Local Authorities, Planning, Projects & partnerships, Property, Waste & Environmental | No Comments »
