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Gillian Palmer is the professional support lawyer in the London office of Mayer Brown’s Real Estate practice.  She focuses on providing innovative solutions to lawyers within the practice in respect of training and innovation.

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“Pay Now, Argue Later”: tenant-friendly interpretation of service charge provisions provides grist for disputes

Introduction

This case is of interest because commercial service charges are very rarely reviewed by the Supreme Court.  The majority decision gives a surprisingly tenant-friendly view on what was a very traditionally worded service charge schedule.  As a result, landlords are now at risk of more pushback and argument from their tenants about the service charges they pay.

Continue Reading Sara & Hossein Asset Holdings Limited v Blacks Outdoor Retail Limited [2023] UKSC 2

Introduction

English property law has developed a sophisticated system of property rights in land, to enable joint ownership of land and to regulate successive interests in the same land over a period of time.  This was largely achieved by the recognition of an additional type of interest in land, separate from the legal title. An equitable interest could, in certain circumstances, be untethered from the legal title and become a separate right.  This is seen most often in situations where two or more parties own land together.  They are joint legal owners – both names will appear on the title register – but they also hold the entire beneficial interest on trust for each other.

Continue Reading No going back: the transfer of beneficial interests in land

For those of you living outside of the UK, Waitrose is an upmarket supermarket whose wares are indefinably better, or at least more expensive, than its competitors.  If an area hosts a Waitrose, then it proves that it is a good place to live, and property prices will leap with joy at the privilege.

Competition law rarely intrudes into land agreements.  Indeed, until 2011, when the Groceries Market Investigation (Controlled Land) Order 2010 (the ‘Order’) was introduced, most land agreements were not caught at all.  In the past eleven years there have been very few cases brought under the legislation, explicable by the softly, softly approach that the regulator, the Competition and Markets Authority (“CMA”), chooses to take. 

Continue Reading Waitrose gets a slap on the wrist for breaching competition law in restrictive land agreements

The Court of Appeal, in the conjoined appeals of London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and Bank of New York Mellon (International) Ltd v Cine-UK Ltd, once again vindicated beleaguered landlords by refusing to imply terms into professionally negotiated leases.  Tenants cannot withhold rent except in circumstances expressly set out in the lease.   

Buttressing the judgment is the reiteration of the stated “fundamental basis” of a lease: it is an estate granting exclusive possession for a fixed term, in consideration for payment of rent. The tenants’ frustrated intention to use the premises as a cinema was not sufficient to cause a total failure of consideration.

Continue Reading The Picturehouse litigation: post-Covid, the Court of Appeal emphasises that contracts are meant to be binding

Introduction

Reform of the regime governing residential long leaseholds (leases of dwellings for a term of twenty one years or more) has been going on for over fifty years.  The latest reform is to restrict a landlord’s ability to charge ground rent on top of an initial premium paid on the grant of the lease.  Ground rent is a sum the tenant pays annually, in addition to the lump sum for the lease itself.  Unlike insurance rent and service charges which the tenant must also pay, ground rent is seen as an ongoing windfall for the landlord, as it is not referable to provision of a service.

Continue Reading Leasehold Reform (Ground Rent) Act 2022

Introduction

From the Domesday Book of William the Conqueror, to the establishment of the Land Registry, identifying the owner of a piece of land has had a long history in the UK.  Whilst William wanted to know the extent of his conquered lands so he could tax his new subjects, and land registration was introduced to make conveyancing and mortgages easier, the Economic Crime (Transparency and Enforcement) Act (the “Act”) has a more high minded purpose.  It is intended to make public the “real” identity of foreign proprietors owning land in the UK and thus discourage bad actors from investing in English real estate.

Continue Reading The Economic Crime (Transparency and Enforcement) Act: what to expect

At last we have some clarity on the shape of the statutory arbitration scheme, which deals with the rent arrears – including service charges and interest – built up by businesses forced to close or restrict their activities during the pandemic (“protected rents”).

Continue Reading The Commercial Rent (Coronavirus) Bill: more uncertainty for landlords

The Pandora Papers confirmed how attractive the UK, especially London and the South East, is for foreign property investors.   This post considers what foreign investors need to know about transparency and land ownership in England and Wales and what is on the horizon.

Close to 90% of land in England and Wales is registered at Her Majesty’s Land Registry, and transaction involving unregistered land will trigger a registration requirement. The title gives basic information about a parcel of land, including the name and address of the registered proprietor.  Non-natural legal personalities such as companies, limited liability partnerships, and charities can own land, and of course there is no restriction on non-UK entities owning land.

Continue Reading The Pandora Papers: overseas investment set to become more transparent

The new month sees a partial re-instatement of the legislation permitting creditors to serve winding up petitions on companies.  However, the UK Government has adopted a softly, softly approach; this is seen from the temporary increase in the amount that must be owed from the modest £750 to £10,000 and the requirement for creditors to seek proposals for payment from a debtor business, giving them 21 days for a response, before they can proceed with winding up action.  The measures are said to protect small businesses as they seek to rebuild their stability.

Continue Reading Winding up petitions: a return to the old normal? Except for landlords

Landlords are increasingly frustrated with tenants who simply will not pay their rent and arrears.  Whilst some tenants are genuinely suffering, there is a feeling that some are using Chancellor Sunak’s moratorium on forfeiture as a budget management tool.

The suspension of forfeiture, a vital weapon in any landlord’s arsenal, is due to end in March 2022 (see “UK Government issues policy statement on Commercial Rent Debts“); Commercial Rent Arrears Recovery (the “CRAR”) which is the mandatory form of distress introduced by statute should also end at the same time.

Continue Reading What action can a Landlord take against defaulting Tenants?