The Practical Lawyer

Landlord and tenant – commercial

Contracting out – ‘term of years certain’

Be aware of a major trap for L’s when drafting leases. The CA recently held that contracting out of LTA 1954 was not possible if a lease defines the term as a fixed period, together with ‘any period of holding over or extension, whether by statute or common law or by agreement’.

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Corporate L – individual T

A new PD imposes a code of conduct for debt claims by corporate claimants against individual defendants. It will therefore apply to corporate Ls who are trying to recover debts from individual Ts or guarantors.

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SDLT – holding over (3)

The rules on charging SDLT when T is holding over are complex, and depend upon whether the original lease was granted under the SDLT regime, or the earlier Stamp Duty regime.

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SDLT – holding over (2)

Different SDLT rules apply when holding over a lease granted under the Stamp Duty regime (as opposed to one granted under the SDLT regime – see previous entry).

Suppose T was granted a lease in 1998 (on which Stamp Duty was paid), with the contractual term expiring in October 2008.

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SDLT – holding over (1)

The SDLT rules on holding over at the end of a lease are complex. In particular, there are differences between holding over a lease granted during the SDLT regime, as opposed to one granted under the Stamp Duty regime (see next entry).

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Leases – compulsory registration

Prior to October 2003, it was only new leases of 21 years or more that needed to be registered at the Land Registry. But, since then, the trigger for compulsory registration has been a lease of more than seven years.

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LTA 1954 – negotating renewals

In the current declining market, many Ts will not want to renew their existing business leases. From L’s point of view it will be important to get an early decision from T so that L can plan accordingly.

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Administration – floating charge

It will clearly be to L’s advantage to have a floating charge over the assets of a corporate T:

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Disclaimer – effect on AGA?

It is well-known that a liquidator can disclaim any ‘onerous property’, including a lease. But, what is the effect of that disclaimer on any guarantor and, in particular, on the enforceability of an Authorised Guaranteed Agreement (AGA)?

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TUPE – leases

Many practitioners do not think of TUPE in the context of commercial leases. But, it is important to appreciate that the grant, assignment or termination of a lease will often result in a change of service provider, in which case TUPE can apply.

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