Informer: Real Estate Newsletter - Autumn 2013

Welcome to the Autumn 2013 issue of Informer.  With the market starting to pick up, we have plenty of topical articles in this issue.  We hope you find it an informative read and, if there is anything of particular interest to you, please do contact one the Real Estate team.

One of the legislation changes that is now finally happening is that the ancient remedy of distress is being replaced with Commercial Rent Arrears Recovery ('CRAR').  Distress is a draconian (but very useful) remedy for landlords of commercial premises, enabling them to take tenants' goods from the premises in place of unpaid rent (or sums reserved as rent).  Under CRAR, landlords will be restricted to only being able to recover principal rent (and not other sums reserved as rent, such as service charge and insurance monies).  It also requires landlords to provide 7 days prior notice to the tenant of its intention to take away goods (which is not an obligation under distress).   

CRAR will come into force on 6 April 2014 and our 7 lawyer-strong Property Litigation team look forward to guiding our clients in the new regime and advising on other remedies available to landlords on tenant default.  We will let you know more in our next edition of Informer.

Articles in this edition include Hannah Watson’s review of a case on the law of "fixtures" within the relatively unusual context of an industrial steel making premises.  Faye Hyland tells us about landlords who have been learning the hard way about statutory limitations on the recovery of damages for dilapidations.  John Downs' piece on a guarantor successfully avoiding liability under a guarantee is a stark demonstration of the importance of comprehensive lease documentation, both at the time a lease is granted but also throughout the term. Tom Morton covers two further break notice cases.  The continuing flurry of cases in this field demonstrates what a much litigated upon subject this is and how the law continues to evolve in this context.  A full list of the items in this edition are shown below.

Informer Bites

• Game on
  Recovering rent from tenants in administration: Landlords challenge the rule in Goldacre v Nortel
  
  
• Changing offices to flats
  Revisions to the planning change of use rules
  
  
• Getting rid of the judicial review "time wasters"
  Reduction in time limits for judicial review challenges

Articles

• Breaking the mould
  New developments on the law of break notices
  
  
• Guarantees and the "one that got away"
  Is your tenant's guarantor still "on the hook"?
  
  
• Fracking update
  Recent protests keep fracking prominently in the news 
   
• Steel a march
  Achieving certainty on fixtures and fittings on lease expiry
  
  
• Put a cap on it
  Two recent cases have served as useful demonstration of the 'Section 18 (1) cap'.
  
  
• Extending the reach of Adjudication into Collateral Warranties
  But is the availability of adjudication for collateral warranties brought about by Parkwood v Laing O'Rourke a good thing?

At least three of the cases we have commented upon are being appealed and so we are likely to see further developments. 

Please let me know if you would like to discuss any of the issues raised in this edition of Informer (alternatively contact the relevant author of the article or feature) or if we can assist with a commercial real estate deal or issue.  We would also very much like your feedback on the content of this issue. 

Please do get in touch.

Antony Phillips, Head of Real Estate Group at Field Fisher Waterhouse LLP