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Landlord and tenant – commercial

Assignment – from A+B to B?

Suppose A and B are joint tenants of a ‘new’ lease (ie a lease granted since LCTA 1995 came in to force). Can A and B jointly assign the lease to B? Alternatively, can they jointly assign it to B+C? The answer in both instances is almost certainly ‘no’ – even if A enters into an AGA guarantee.

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Lease or licence – the reality?

The traditional legal test for whether there is a lease or a licence is to decide whether or not the occupier has ‘exclusive occupation’. But it is important to remember that it is the reality of the situation – not the label used on the documentation – that decides the issue.

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Licence – no oral modification

A licence of office premises said ‘all variations to this licence must be agreed, set out in writing, and signed on behalf of both parties before they take effect’. The validity of that ‘no oral modification’ clause was upheld by the Supreme Court. Accordingly, T’s argument that L had verbally agreed to alter the schedule of rent payments was dismissed. See the July/August 2018 issue, p20.

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Energy efficiency – reassessment by T?

The Energy Efficiency (MEES) Regs mean it is no longer possible to grant new leases to properties with an EPC of F or G. Moreover, existing lettings of F and G properties will become unlawful from April 2023.

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Obligation to trade – no specific performance

It is well established that a court cannot grant specific performance of a trading covenant (the HL decided the point in Co-op [1997]). Instead, L will have to rely on some other remedy – typically forfeiture plus damages.

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MEES – use a licence?

The Minimum Energy Efficiency Standard prevents L from granting a lease of commercial premises with an EPC of less than E (see our March/April 2018 issue).

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Telecoms Code – summary

The new Telecommunications Code came into force in December 2017 (and was extensively covered in our February 2018 issue).

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Performing rights – TheMusicLicence

The Performing Rights Society (PRS) and Phonographic Performance Limited (PPL) have formed a joint venture, so that businesses playing music in public can now obtain a single licence (‘TheMusicLicence’).

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GDPR – data rooms

If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents.

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CVAs – abuse

Many Ls take the view that the CVA (company voluntary agreement) regime is being abused by poorly performing retailers.

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