Commercial Property FAQs
Q
I am a Tenant of commercial property. My Landlord has given me a Notice to leave the property. Do I have to leave when he says?
A
In ordinary circumstances, Tenants of commercial property have "security of tenure".
In short, this means that the Lease does not end automatically at the end of the contractual term. Instead, the Lease continues indefinitely unless and until either the Landlord or the Tenant takes steps to end it.
If the Landlord requires the Tenant to leave the Property, the Landlord must give the Tenant at least six months' notice in a prescribed form and, in that Notice, rely on one or more of a limited number of grounds to obtain vacant possession.
The Tenant can then apply to a Court for an Order for the grant of a new Tenancy. It is then for the Landlord to satisfy the Court that the ground or grounds on which he intends to rely are valid and the Court will not automatically order the Tenants to leave.
For further information please contact David Thorp or Louise Clowes.
Q:
I am a Landlord of commercial property. I have heard that, unless I do something about it, the Tenant will have rights to renew the Lease at the end of its term, and even to receive compensation.
A
In ordinary circumstances, Tenants of commercial property have "security of tenure".
In short, this amounts to a qualified right to renew the Lease, or to receive compensation if the Landlord successfully opposes renewal.
The amount of the compensation depends on the length of time during which the Tenant has occupied the Property and the rateable value of it.
However, and provided that appropriate steps are taken before documents are completed, it is open to the parties to agree that the Tenant will not acquire these rights. The necessary steps involve the Landlord giving the Tenant notice in a prescribed form and the Tenant making one of two possible forms of Statutory Declaration.
For further information please contact David Thorp or Louise Clowes.
Q
I am interested in taking a Lease of a commercial property. The Landlord’s agents have proposed that the Lease should be on a "full repairing and insurance basis". What does this mean and do I have to accept that?
A
A "full repairing and insuring" basis usually means that :-
a. regardless of the current state of the property, the Tenant has to put and keep the Property in good repair and
b. although the Landlord arranges the insurance of the Property, the Tenant reimburses the Landlord the cost of the insurance premium.
Both of these points (and in particular the repairing obligation) are open to negotiation.
A Tenant should always have a property surveyed including to identify any ways in which the proposed repairing obligation should be limited, for example by reference to a schedule of the property's current condition.
Whether a Tenant does or does not reimburse the cost of insurance of a property is a commercial decision, about which a view must be taken in the light of the amount of the proposed rent payable.
For further information please contact David Thorp or Louise Clowes.
Q
I am a Tenant of commercial premises. I have someone interested in taking the premises. How do I go about this?
A
Most Leases of commercial properties include restrictions on the Tenant's ability to "assign", i.e. transfer the Lease, or to "underlet", i.e. grant a new Lease for a term shorter than that of the Tenant's own Lease.
In these circumstances, it is necessary to obtain the Landlord’s consent to any proposed dealing.
Most Leases enable the Landlord to require the Tenant to pay his legal costs and other fees in connection with his consent to a transfer or underletting. The Lease may also enable the Landlord to impose other conditions in return for the grant of his consent.
Do remember that, if the prospective incoming Tenant proposes to change the use of the Property, or to make alterations to it, it will ordinarily also be necessary to obtain the Landlord's consent not only to the transfer or underletting, but also to the change of use and alterations.
For further information please contact David Thorp or Louise Clowes.
Residential Property FAQs
Q
I have seen reference in the press to "HIPS". Can you explain this and how it will affect me?
A
Although there is still some continuing uncertainty about the Government's plans, it is intended that Home Information Packs ("HIPS") will be introduced in June 2007.
In short, a Home Information Pack is, as the name suggests, a package of information about a Property (basic Title details, some search results, an Energy Performance Certificate and other information) the intention of which is to speed up the conveyancing process.
It will be compulsory for a Home Information Pack to be made available before a Property is marketed for sale to the public.
Working with the Conveyance Link Conveyancing System, Bowcock Cuerden will make available a range of HIP options suitable for all properties and all Clients. For further information contact Susannah Taylor or Sarah Deans.
Q
I am hoping to offer my property in part exchange for another property. Will this result in a Stamp Duty saving for me?
A
Subject to a few very limited exceptions, the answer to this question is unfortunately "no".
By contrast with the old Stamp Duty regime, the current Stamp Duty Land Tax ("SDLT") rules do not provide for payment of SDLT only on the difference in price between the two properties. Each property is treated separately and SDLT is payable on the full price for each property.
However, there are some limited concessions open to house builders who accept properties in part exchange for a new or adapted dwelling.
For further information please contact David Thorp or Susannah Taylor.
Q
I would like to build an extension to my property. What consents do I have to obtain?
A
Depending on, for example, the size of the extension it may be necessary to obtain both Planning and Building Regulations Consents from the Local Planning Authority.
The Local Authority are usually happy to help as necessary.
Do remember that it may also be necessary to obtain Consent further to the terms of a covenant or covenants to which the property is subject. Bowcock Cuerden would be happy to help with this.
For further information please contact Susannah Taylor or Sarah Deans or, for specialist planning law advice, Lewis Denton.
Q
I live in a block of flats. Are there any Regulations which apply to the common parts of the building?
A
The common parts of a building containing flats are treated as "non-domestic premises" for the purposes of the Asbestos Risk and Fire Risk Assessment Regulations.
As a result, it is necessary for those responsible for the management of common parts to have Asbestos Risk Assessments and (with effect from 01.10.06) Fire Risk Assessments carried out.
Failure to do so could result in the commission of criminal offences and difficulties with insurance and mortgageability.
Q
I live in a conservation area. How does this affect me and what I can do to my property?
A
In short, the presence of a property within a conservation area restricts the extent to which alterations and additions can be made, whether with or without Planning or other Consents. (For example, "permitted development rights" (i.e. dealing with the extent to which changes can be made without Consent) are often removed or restricted).
The Local Planning Authority will often take a more restrictive view when dealing with the issue of Planning Consent.
For further information please contact Brian Wake or Lewis Denton.
Q
My neighbour has applied for Planning Consent to build an extension to his property. I think that there is something in his Title Deeds which prevents him from building the extension. Does that mean that, if I object to his application, my objection will succeed?
A
Not necessarily. The Local Planning Authority will not be interested in the existence of covenants or other restrictions in Title Deeds as such.
In dealing with any objections, the Local Planning Authority will only take note of planning-related matters.
However, it may be possible to persuade the Local Planning Authority that the purpose of a covenant or other restriction does have implications for the planning process, and that breach of the covenant should therefore be taken into account.
For further information please contact Brian Wake or Lewis Denton.