The Practical Lawyer


Competition – OFT

Very few property transactions are likely to give rise to OFT-related competition issues, simply because the markets for commercial office space, residential property, retail premises, etc are highly competitive in most parts of the country.

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Company – undervalue transaction

As the recession bites, there will be more cases in which it is subsequently alleged that a company sale or transfer of land was at an undervalue (and so should be set aside). A reminder of the basic rules:

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Insurance – rebuilding

A lender will often want to ensure that insurance moneys are used to reinstate a building, rather than be handed to the insured (ie the borrower). In this respect, the Fires Prevention (Metropolis) Act 1774 may be relevant.

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Contaminated land – remediation

Land remediation tax relief gives a corporation tax deduction of 150% on qualifying expenditure incurred in decontaminating land (eg £1m expenditure gives rise to £420,000 worth of tax relief for a company paying 28% tax). Key points to note:

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Remediation relief – derelict land

Land remediation relief is to be extended to derelict land as from 1 April 2009. This could be an important issue for many property companies. Whilst the details are still being finalised, the outline points are clear:

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Receiver – fixed charge

If a lender wants to enforce a mortgage over land then a fixed-charge receivership will often be the simplest way to proceed.

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Receiver – Human Rights?

If a mortgagee’s receiver sells a property then is that sale subject to Human Rights Act restrictions? Typically, this issue will arise if it is a residential property and the defaulting borrower argues that there would be a breach of Article 1 (‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions...’).

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Trespass – High Court?

Normally, summary proceedings for trespass or squatting are brought in the County Court. But, it is often not appreciated that it may be possible to proceed in the High Court. The Part 55 PD says:

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Charging order – limitation period?

The Limitation Act 1980 sets out a 12-year period for an ‘action’ to recover ‘any principal sum of money secured by a mortgage or other charge on property’. Moreover, no action can be brought upon ‘any judgment after the expiration of six years from the date on which the judgment became enforceable’.

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Mortgage – repossession protocol

A new pre-action protocol for mortgage possession cases came into effect on 19 November.

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