Knowledge

Many commercial landlords will currently be dealing with issues arising out of their tenants’ financial difficulties, in particular the impact of insolvency proceedings. For tenants who are in administration, a moritorium applies, which will prevent a landlord taking action against the tenant without leave from the Court. Generally, the Courts will have a degree of sympathy for landlords, and will afford significant weight to the landlords’ proprietary rights when deciding whether to allow landlords to commence proceedings against a tenant.

It is a recognised principle of Scottish property law that a person transacting with heritable property is entitled to do so on the faith of what is contained in the public records, and will not be bound by any agreement of which he does not have notice.  In this principle, real rights (or rights in or to use the property itself) beat personal rights (or rights to require another to do something, or refrain from doing something in relation to that property).

A key element of the Landlord and Tenant Act 1954 is the security of tenure it provides for a tenant.  This means that the tenancy continues until terminated by procedures specified in the Act (as amended).  It is possible for the parties to the lease to agree to contract out of the security of tenure provisions, but an essential component of such exclusion is that the lease must be for a fixed period.
Fixed term lease

In today’s increasingly corporate world, it may come as something of a surprise that there are many thousands of organisations operating in Scotland which are set up as unincorporated associations. The sizes and structures of these organisations can vary enormously, as can their purposes and objects: many of them are voluntary organisations or charities (56% of registered Scottish charities are unincorporated associations), others are member-based organisations formed as clubs and societies which further the interests of the members and are not for profit, such as sports and social clubs.

Shepherd and Wedderburn has appointed an experienced restructuring and insolvency specialist in its London office.
Brenda Harris, who was previously a senior solicitor at The Khan Partnership, has 25 years of experience in the restructuring and insolvency field. She was a partner in the London office of Eversheds for 13 years, where she led the insolvency team. Brenda has acted for a range of corporate clients, major banks and leading insolvency practices.
She will join the firm’s highly experienced restructuring and insolvency team who recently:

Judgment C-251/07 Gävle Kraftvärme: Background
The decision handed down by the European Court of Justice (ECJ) on 11 September 2008 concerned the classification of a Swedish combined power and heating plant as either (i) an incineration plant or (ii) a co-incineration plant, and will be of importance to operators throughout Europe.

A new study commissioned by the Scottish Government for the Forum for Renewable Energy Development in Scotland on the status of the Scottish hydropower potential was published on 26 August 2008. The study reveals that Scotland has enough untapped hydropower potential to supply electricity to a quarter of the nation’s homes.

Background
Niazi and others (the applicants) were persons who claimed to have suffered miscarriages of justice. Bhatt Murphy and others (the lawyers) were solicitors who specialised in advising such persons on making applications for compensation in such circumstances. These cases arose from separate decisions, first, to withdraw a discretionary scheme under which such compensation was payable and, second, to reduce the level of costs payable to solicitors acting in such cases.

The Court of Appeal recently considered the case of Jones v London Borough of Merton [2008] EWCA Civ 660. This case is important to public sector landlords as well as being relevant for the general interest of the property sector, in giving guidance as to when a person no longer has possession of a property.

Cheap credit and a benevolent economy have meant that the past five years have been one of the quietest periods for corporate insolvencies. But as customer spending sinks and the credit markets crunch, the trickle over effect could result in a surge of commercial tenants going under. This is not good news for landlords who have been enjoying the upside UK’s property driven economy.

Locked gates

The Budget of 12 March 2008 includes a number of welcomed proposals for the North Sea fiscal regime, which are now encapsulated in the Finance Bill 2008. The proposed changes should be seen against the backdrop of the ongoing government-industry consultation, as demonstrated by the consultation document Securing a sustainable future (2007), and the wider government commitment, encapsulated in the government’s energy policy (set out in the Energy White Paper of May 2007), to promote investment and maximise production whilst ensuring a fair return for the UK taxpayer.

Recent cases in England dealing with adverse possession have applied the decisions from the House of Lords case of J A Pye (Oxford) Limited v Graham [2002] UKHL30, [2003] 1A.C.419 and from the Grand Chamber of the European Court of Human Rights decision on the case of J A Pye v United Kingdom on 30th August 2007.

TUPE – the Transfer of Undertakings (Protection of Employment) Regulations 2006 – applies where a business transfers or a service provision change takes place.  This article looks at how those legal concepts apply in property transactions and examines the TUPE-related issues that buyers and sellers need to know.

On 28 January 2008, the Institute of Chartered Secretaries and Administrators (ICSA) published a guidance note highlighting certain legal and practical issues that arise following the implementation, on 1 October 2007, of those provisions of the Companies Act 2006 (the Act) relating to proxies and corporate representatives.

The ICSA paper contains guidance in a number of areas that should help companies, shareholders and advisers get to grips with the new provisions. 

The subject of gratuitous alienations is a problematic area for the property practitioner.

On 20 November 2007, Sir David Walker published his report on disclosure and transparency in the UK private equity industry.  The report, which was commissioned by the British Venture Capital Association in February 2007, follows the consultation document published in July 2007.  It sets out various guidelines for enhancing disclosure by private equity firms (which are authorised by the FSA and invest in the UK) and their large UK portfolio companies.

To terminate a lease effectively, the landlord or tenant who wishes to bring the lease to an end must give effective notice of their intention to the other party.  Even where the lease specifies an end date, the party seeking to terminate must serve a notice to quit on the other party to bring the lease to an end.   If neither the landlord nor the tenant serves a notice to quit, the lease will be automatically extended for a further period under the principal of tacit relocation.

Effective notice required

Traditionally, one of a lawyer’s skills is using and manipulating words, but when it comes to dealing with sums, even the most talented wordsmith can falter.  All too frequently the lesson from court actions is that more care should have been taken when drafting the documentation involved, and in the case of rent review provisions in leases, extra care is important given the often complex nature of the interplay between the various components to be taken into account or disregarded when identifying what the new rent is to be.  How much simpler therefore to provide a formula for calculating

The eagerly awaited House of Lords decision in the Scottish case of Moncrieff v Jamieson has finally been delivered, in what it is fair to say is a landmark decision for Scottish property rights.  In a unanimous decision, which none the less contains some differences of opinion as to some of the detail, their Lordships have confirmed that it is possible for a servitude right to park to be implied as a necessary accessory to an express right of access, upholding the view originally expressed by the sheriff over four years earlier.
Access and parking

In criminal proceedings a suspect or an accused has a right not to incriminate himself. That right or privilege is principally seen in the context of the person’s right to remain silent, but how far does that privilege extend and can it be relied upon in disciplinary proceedings?

In its Akzo Nobel judgement, issued on 17 September 2007, the European Court of First Instance has re-affirmed the long-standing rule that EC law does not confer legal privilege protection on communications between in-house lawyers and their internal clients (For further analysis of the implications of this case please click here).

The English law relating to adverse possession was thrown into some disarray in 2005, when the European Court of Human Rights ruled that J A Pye (Oxford) Ltd were entitled to compensation from the UK Government because they had “lost” their title to an area of land in Berkshire, following possession of the land for the period of limitation for a period of 12 years by Mr and Mrs Graham, the local farmers who had originally leased the land. This had happened on the basis of English Law prior to the Land Registration Act 2002, the terms of which now make limitation more difficult.

A case before the Administrative Division of the High Court has held that conditions imposed by the Metropolitan Police (“the Met”) against an anti-war protester exceed the limits of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (“the Convention”), which require conditions restricting those rights to be ‘prescribed by law’.