Real Estate | 16 March 2016

Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015] is set to be the leading authority on implied terms for some time to come. The Supreme Court confirmed that the more restrictive test of strict necessity remained applicable in all cases. All practitioners must understand the impact of the decision both for the drafting of instruments, the exercise of contractual rights and before commencing potentially costly litigation. [Continue Reading]

Real estate | 13 November 2015

Forfeiture is a means for a landlord to terminate a lease, in the event of some default by the tenant. The right must be conferred expressly: there must be a ‘forfeiture clause’ or a ‘proviso for re-entry’. It can be contrasted with a break clause exercisable by a landlord, which also confers a unilateral right to terminate, but not upon some default of the tenant (such as a right of forfeiture). The difference is that it is only where the landlord is exercising a right to forfeit the lease that the tenant can apply for relief against forfeiture: see Richard Clarke & Co v Widnall [1976].
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Real Estate | 01 September 2015

Almost all commercial leases prevent the tenant from assigning the lease without obtaining consent from the landlord. Disputes often arise and landlords, in particular, have to act quickly. The consequences of making a late decision are often no better than making the wrong decision: in either case, the landlord may end up with an undesirable new tenant or be stuck with a disgruntled existing tenant seeking damages. It is therefore important for both landlords and tenants to understand when the landlord is entitled to refuse consent. [Continue Reading]

Real estate | 01 July 2015

On initial lettings of commercial property it is standard market practice to allow the tenant an initial fitting out allowance, generally by way of a rent 
free period. This rent free period is intended, in theory, to reflect the tenant’s time and expense incurred in fitting out the premises but is rarely calculated by reference to the actual time or cost of 
the tenant’s works. In the case of retail units it has become common market practice to offer a standard three-month rent free period.

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Real estate | 01 December 2014

The Human Rights Act (HRA) 1998 enshrines various rights derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms in the law of England and Wales. For defendants facing a claim for possession, the rights under Article 8 of the Convention may offer a possible defence. Whether such an argument can be advanced will depend partly on the ground on which possession is sought, and partly on whether the claimant is a public authority or a private landowner. [Continue Reading]

Real estate | 01 November 2014

This article outlines the law and procedure for the compulsory acquisition of land. It also gives some practical tips for in-house lawyers.


There are three basic stages in compulsory acquisition. First, the conferment of statutory powers of compulsory acquisition upon an acquiring authority or other promoter. Second, the steps to acquire the land or interest for which powers have been conferred under stage one: this involves taking possession and obtaining title. Third, the preparation and submission of claims for compensation, and dealing with the heads of losses for which compensation is payable.
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Real estate | 01 October 2014

Even within a recovering rental 
market, the impact of insolvency can be severe. In particular, the power to disclaim a lease as onerous property can have significant implications for not only parties to the lease but also group companies (acting as guarantor), sublessees and mortgagees.

As the recent case of Schroder Exempt Property Unit Trust v Birmingham City Council [2014] demonstrates, the impact will be felt not only for contractual liabilities but also in respect of liabilities owed to third parties, such as for non-domestic rates of unoccupied premises. It is essential for all parties to be familiar with the practical realities of a leasehold disclaimer in order that the necessary steps to protect their position can be taken.
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Real estate | 01 September 2014

The right to acquire the freehold or an extended leasehold interest conferred on the lessees of blocks of flats pursuant to the Leasehold Reform Housing and Urban Development Act 1993 continues to raise tricky issues for property investors. The recent long-awaited decision in Westbrook Dolphin Square v Friends Provident [2014] tackles a number of those issues. 
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Real estate | 01 July 2014

The Jackson reforms, effective from 1 April 2013, brought about a number of significant changes to the Civil Procedure Rules (CPR), perhaps the most fundamental of which was the amendment of the overriding objective at CPR 1.1(1). Prior to amendment, Rule 1.1(1) stated that the CPR were designed to enable the court to deal with cases justly. By Rule 1.2 the court was required to effectuate the overriding objective when applying and interpreting the CPR. The new overriding objective requires the courts to deal with cases ‘justly and at proportionate cost’. Alongside this is a new sub-clause at Rule 1.1(2)(f) specifying that dealing with a case justly and at proportionate cost includes, so far as is practicable, ‘enforcing compliance with rules, practice directions and orders’. The effect of CPR 1.2 (above) is that this latter consideration now permeates and influences every case management decision taken under the CPR.
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Real estate | 01 May 2014

In a difficult lettings market, the 
expiry of a lease presents the landlord with 
the possibility of an income void lasting many months. It is unsurprising, therefore, that unscrupulous landlords sometimes regard a terminal dilapidations claim as a means of offsetting the leaner times ahead. What can a tenant – faced with a costly and possibly inflated schedule of dilapidations – therefore do to minimise the amount it must pay?
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