PropertyLaw.guru Blog

EG 27-06-20


News section - lots of really interesting articles about the future of offices post pandemic - many predicting that in fact flexible workspace will grow as companies shy from long term commercial lease commitments given uncertainty in their market. Many articles well worth reading if you see yourself as something more than a paper-pushing-instruction-follower! Well worth spending the time to read these to get an idea of what is likely to happen in the market - firms moving out of London, break clauses being operated, retail being turned into flexible office space, 
News of the Travelodge CVA too- interesting terms that may well be followed in other CVAs over the coming months - L-only break rights on compromised leases in case they find better Ts in the short term, rent reductions of 50 - 62%, etc etc. Interview with NHS property services which IMHO seems to be as much as basket-case as the NHS non-doctor management generally!

Legal 
p.34 Fire Safety- problems and consequences post Grenfell. Briefly explains Article 8 and 12 duties of the Regulatory Reform (Fire Safety) Order 2005, questions whether in due course the safety requirements for resi high-risk will in due course apply to comm prop, ‘fire stopping’ design or adaptation, etc. Also the problem that and EWS1 certificate is not required legally and and no-one can be made to get one meaning leaseholders are prevented from selling to anyone other than cash buyers if there ins’t one in place as lender require one! And the other Ts might object to the cost of one being added to the service charge!

p.37 Scottish tenants of Purpose Built Student Accommodation (“PBSA”) can now terminate their tenancies under new coronavirus legislation - sets out the details 

p.37 Brainy Seitler QC & daughter debate as to whether Ts still have to pay rent for a property that won’t be able to be used for months in a normal manner. Outlines the possible arguments in Frustration, Implied rent suspension terms that L should have reasonably insured, the forthcoming FCA business interruption insurance litigation, Miss Seitler rather harshly calls his arguments for rent suspension ’poxy!!!’ (language my dear!), as pandemics don’t damage buildings, the ejusem generis rule of construction limiting ‘damage’ to such things not pandemics, and the frustration argument being dead in the water, also pointing out that Dad Seitler lost the argument when he was representing the Tenant in the EMA case (harsh!)! Looks like Dad loses the argument and tenants have to pay..

p.40 Using an e-signature platform to get round Covid execution problems. The Law Commission's Sept 19 report confirmed that in English Law electronic signatures are capable of being used to execute documents as long as the signatory intends to authenticate the documents and the usual formalities are followed. Summarises the limitations - consent by the parties to rely on these, overseas entities, legal constitution of the executing body, and tax locus issues. Also LR is ‘free to follow its own path’ on this, and at present it won’t accept them but it is considering its position at the moment in view of the pandemic. Briefly explains the basic process for using one the the e-signature platforms - are to use, get the names, agree signing order, agree witnessing being person in person while the executing signatory adds their signature to the document on screen, etc.

p.42 Report on Day and Mannan V Bushloe St Surgery & Wigstone Central Surgery [2020] EWHC 1375 - Frustration- one of 3 GP practices used a building together was closed down by the CQC but then reinstated - but the patients had by that time gone elsewhere. One of the GP practices claimed frustration of the Facilities Management Agreement entered into between the 3 practices by which they agreed to share the running costs. Court said no, the fact that the practice partners become unable to practice as GPs did not end their obligation to pay their share of the costs. Bit like the EMA case.

p.42 Sub-purchasers do not get an equitable interest - Ezaor v Conn [2020] EWCA 687. The L of 6 investment properties contracted to sell them to NEL which he managed & controlled, but no transfer was entered into and the matter ‘rested on contract’, even thought the price had been paid over. NEL contracted to sell them to another company controlled by L, called CSP. NEL went into liquidation in 2015, and CSP into administration in 2017. The administrators of CSP called for a transfer of the title from the landowner L. High Court ordered L to deliver transfers to CSP on the ground CSP had the equitable right to call or the title. CA reversed this (don’t forget the contract for sale was between L and NEL, not CSP) because the contract between NEL and CSP was purely contractual, the buyer did to have an equitable interest that he could transfer to the sub-seller so there was not grounds for applying equitable principles using the vehicle of a constructive trust. An uncompleted contract does not have the same effect as a declaration of trust. Completion depended on service of requisite noticdes - the administrators had now obtained an assignment of the benefit of the original contract for sale and have served a notice calling for completion so the court suggested CSP should start a new action on those! [It amazes me that no-one had thought this through before trotting off to the High Court]

p.43 TCC decision in A company v X & Others [2020]EWHC 809 TCC held that expert witnesses can owe their clients fiduciary duties meaning that they are unable to act in both sides of the same dispute. This involved a petrochemical plant construction, a complex arrangement, delays in the project, two arbitrations on costs claimed, and injunctions sought to prevent an employee in one location working for a set of experts used in one dispute being used as another employee of the same experts was acting on the other side on another one!
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