A presentation by - hilldickinson.com - Shop Agents Society

A presentation by

hilldickinson.com

Retail leases pictureboard

10 September 2020
Bill Chandler
Hill Dickinson LLP

Welcome

1     2   3

              4     5   6
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1 (top left)
 •     Coronavirus
 •     Government protection for retail tenants

 •     Coronavirus Act 2020 s82
        – Prohibits forfeiture for non-payment of rent
        – Extended until 30.09.2020
 •     CRAR
        – CRAR also prohibited until after 30.09.2020
        – Unless at least 189 days’ rent owing
 •     Corporate Insolvency and Governance Act 2020
        – Cannot issue winding-up petition on strength of statutory demand served between
           01.03.2020 and 30.09.2020
 •     Govt code of practice for commercial property relationships during pandemic
 •     Landlords and tenants need to consider tactics for 01.10.2020 and beyond

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2 (top middle)
 •     51 Brewer Street, Soho, London
 •     Rotrust Nominees Ltd (now Sequent Nominees Ltd) -v- Hautford Ltd

 •     Reasonableness of LL refusal of T’s application for consent to a proposed planning
       application
 •     Mixed use building – T wanted to convert 2 more floors to resi
 •     Within permitted user, but T needed LL consent for planning application to change use
 •     LL said no – fear of enfranchisement
 •     HC/CA said not reasonable to use planning covenant to frustrate permitted use
 •     Supreme Court (by 3:2 majority) said LL refusal was reasonable – just needs to be
       related to L&T relationship
 •     So 6 of the 9 judges agreed with T, but LL still won!

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3 (top right)
 •     Westwood Retail Park, nr Margate, Kent
 •     Dreams Ltd –v- Pavilion Property Trustees Ltd

 •     Agreement for surrender, exercisable at option of T
 •     Completion conditional on payment by T of ‘all monies due’
         – Court said that didn’t include amount of terminal dilaps claim
         – Agreed form of surrender included full release of T’s liabilities
 •     ‘The surrender is with vacant possession’
         – Court said VP was a condition and LL could refuse to complete if not given
         – Was VP given?
             • Not decided
             • LL argues mezzanine floor and lift should have been removed

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4 (bottom left)
 •     Index-linked rent reviews
 •     Monsolar IQ Ltd –v- Woden Park Ltd (2020)

 •     25 year lease @ £15,000 pa
 •     ‘Mix and match’ annual increases, calculating increase in RPI since start of lease on
       each review and applying to passing rent
 •     Tenant produced calculation projecting rent of £76m in year 25
 •     High Court interpreted rent review formula to calculate RPI increase over previous
       year, not since term commencement
 •     But in other cases the courts have refused to rewrite a defective formula

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5 (bottom middle)
 •     McArthur Glen Outlet Village, Ashford, Kent
 •     TFS Stores Limited -v- BMG (Ashford) Limited and others

 •     The Fragrance Shop (TFS) were tenants at various McArthur Glen (BMG) outlets
 •     Leases were contracted out of security of tenure (Landlord & Tenant Act 1954)
 •     When BMG wanted them out, TFS claimed contracting out was invalid
 •     Pragmatic decision:
        – tenant’s solicitors had actual and ostensible authority to accept warning
           notices
        – … and to swear statutory declarations
        – ‘for a term commencing on …’ in the stat dec is merely identificatory, so ‘a
           date to be agreed’ is ok
 •     Appealed to CA, but on hold as a result of coronavirus

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6 (bottom right)
 •     Electronic signatures and deeds

 •     Most documents creating or transferring legal estates in land must be by deed
 •     Property contracts must be in writing and signed
 •     2019
        – Law Commission report concluded that electronic signatures and electronic
           deeds satisfy these requirements
        – Neocleous-v-Rees confirmed that an email exchange was in writing and signed
 •     2020
        – Govt response endorsed Law Commission conclusions
        – Land Registry accepting electronic signatures since 27.07.20
 •     Remember:
        – Witness must still be physically present (not by videolink)
        – Land Registry has it own specific/additional requirements (see Practice Guide 8)

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Thank you

The information and any commentary contained in this presentation are for general information
purposes only and do not constitute legal or any other type of professional advice.
We do not accept and, to the extent permitted by law, exclude liability to any person for any loss
which may arise from relying upon or otherwise using the information contained in this presentation.
Whilst every effort has been made when preparing this presentation, no liability is accepted for any
error or omission.
If you have any particular query or issue, we would strongly recommend you contact a member of
the team who would be happy to provide specific advice.