The Practical Lawyer

Landlord and tenant – commercial

EPC – T to fit out

Suppose L is granting a lease of a small retail unit which T will fit out (the unit will have capped-off water, gas and electricity supplies that will be separately metered and which will not be shared with L). T will be installing its own heating and cooling, and the question then arises as to whether L needs to provide an Energy Performance Certificate?

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Leases – T’s requirements

In today’s market, what should T be looking for when entering into a new lease? The obvious answer is that good quality Ts are highly sought after. Accordingly, T should illustrate its financial strength to the potential L and then seek concessions (eg rent-free periods or a contribution to fit-out costs).

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LTA 1954 – interim rent

If you act on behalf of T who is renewing a lease with LTA 1954 protection, it is important to consider the issue of interim rent (ie the rent that will be paid between the expiry of the existing lease and the start of the new lease).

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Forfeiture – knowledge of breach

T was in arrears, so L served a statutory demand in respect of the arrears. Shortly afterwards, L presented a bankruptcy petition against T, but that was adjourned on several occasions. Subsequently, L became aware that T was in breach of various lease obligations.

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Rent deposits – T in administration

Suppose T has paid a rent deposit that has been put in a separate designated account and charged to L (usually called the ‘charging form’). In that situation, can L access the rent deposit money if T goes into administration?

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Insolvent T – L’s bank covenants?

The insolvency of T can have a direct impact on L’s financial arrangements. Indeed, non-payment of rent by T may mean that L is in breach of an interest cover covenant, or a loan-to-value covenant.

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Rent – no apportionment

If a lease requires rent to be paid in advance, then T cannot apportion the final rent payment (unless the lease says otherwise). This is particularly important on the expiry of a lease – whether it be by passage of time, forfeiture, surrender, or exercise of a break clause.

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Administrator – unlawful occupation?

On an insolvency administration, how do you balance the competing interests of L (who wants to enforce the terms of the lease) and the creditors (who want to maximise the business value)?

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Administration – empty properties

As administration becomes more commonplace, it is important for Ls to be aware of the empty property rates implications of a property being occupied by a T in administration.

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Repair – latent defects

The standard definition of ‘repair’ dates from Lurcott [1911]:

‘The restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is the reconstruction of the entirety, meaning by the entirety not necessarily the whole of the subject matter but substantially the whole of the subject matter.’
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