LAW2020 Online: Commercial Property

This event is now entirely pre-recorded and includes:

• High quality 4 x 1 hour pre-recorded videos and audio broadcast (topic titles are listed below)
• Q&A – a 1-hour Q&A session with our speakers, originally broadcast live in August 2020. “Shape The Debate” is your opportunity to hear our experts answering attendee questions on both the pre-recorded content and general day to day Commercial Property issues
• LAW2020 Online: Commercial Property online exhibition – chance to gain additional hours CPD, including a choice of webinar from our Distance Learning catalogue worth £35 +VAT.

Forfeiture – A Victim of Covid-19 presented Mark Shelton

The Covid-19 pandemic and lockdown have exposed fatal weaknesses in the law of forfeiture: its draconian nature; the patchy protection for tenants and other interested parties; and the way it forces landlords into the choice whether to forfeit at the outset, so preventing sensible settlement discussions. As restrictions are lifted, a sudden as-you-were return to how things stood previously looks highly problematic, and it would be a golden opportunity to implement the Law Commission’s long-standing reform proposals. We will examine the main problem areas, and consider how the reform proposals solve the problems, together with lease drafting implications.

Topics covered include:

• Waiver of the right to forfeit
• Problems of s.146
• Remediable v irremediable breaches
• Rent v non-rent breaches
• Continuing v once-and-for-all breaches
• The range of relief jurisdictions
• Re-letting after forfeiture

Flexibility in Retail Lettings – Challenges and Opportunities presented by Mark Shelton

The retail sector, already under pressure before the Covid-19 pandemic, has been left reeling. Meanwhile, the long-delayed impact of Brexit will shortly be upon us. However, both landlords and tenants are fighting back, with technology, fresh offers, and the much discussed ‘experiential retailing’. With agility and willingness to change, new opportunities can be seen to emerge. Innovations in retailing practice can complicate the operation of turnover rent arrangements, while shorter lease terms and pop-up lettings present challenges in documenting occupation. Flexibility is increasingly crucial, and while licences to occupy and tenancies at will may well be used, the letting documentation must not only appeal to the occupier, but also protect the landlord in relation to security of tenure. At the same time, transaction costs are an important issue: how far can landlords or letting agents go in documenting occupation themselves?

Topics covered include:

• How long is the period of proposed occupation?
• Will there be any sharing of space?
• How far is the use of standard documents possible?
• “No disasters… only opportunities”
• What might we expect the retail lease of the future to look like?

Modification and discharge of restrictive covenants presented by Mark Shelton

In putting together a development site, it is not only the public law issue of planning which must be negotiated, but also the private law issue of adverse rights over the site, and in this regard it is restrictive covenants which can be particularly troublesome. It may not always be possible to identify all those with the benefit of the rights, which leaves a residual risk even where a solution can be negotiated with known right-holders.

The procedure under s.84, Law of Property Act 1925 offers a way forward, permitting the discharge or modification of covenants which otherwise threaten to be difficult. Every year brings fresh examples of the exercise of this jurisdiction, and so it is necessary to be on top of the current approach of the courts.

Topics covered include:

• The relevance of the planning background, and the tension between public and private law.
• Benefits of the procedure in relation to unidentified right-holders.
• The grounds for applying, and which are most successful in practice.
• Recent case law, including modification of leasehold covenants.

Turnover rents – increasingly popular, increasingly challenging presented by Mark Shelton

Tenants increasingly seek to agree turnover rent arrangements with their landlords, attracted by the idea of a major overhead which flexes with trading conditions. For landlords such arrangements offer increased sustainability of tenants’ businesses, while improving the prospects of letting vacant space. When tenants exceed expectations, there is also the carrot of higher rent receipts than would be available on an open market rental basis.

You can state the idea in a couple of sentences, but providing for it a turnover schedule to a lease is an entirely different matter. Not only is it difficult to predict and capture all sources of turnover, but there are consequential changes required to everyday lease provisions like alienation clauses and user restrictions, to name but two. The ever-increasing variety of ways in which tenants generate turnover makes documenting these arrangements ever more of a challenge, though established and new technologies may present solutions.

This webinar will give an overview of the topic, and consider how well turnover rents work in a world where many tenants retail online as well as from physical premises.