Header graphic for print

Keeping It Real Estate

News and Trends in UK Real Estate, Disputes and Planning Law

Posted in Real Estate News

Killing two birds with one brick: one dispute yields two useful Party Wall Act decisions

Party wall disputes may be common, but it is uncommon for them to reach the High Court. Despite the lack of clarity for which the Party Wall etc. Act 1996 (PWA 1996) has often been criticised (as alluded to in my previous blog on this Act here), it is quite rare that a case emerges under the Act which helps to clarify things.

Two decisions in the Technology and Construction Court arising from the dispute between Lea Valley Developments Ltd and Mr Thomas Derbyshire, which concerned neighbouring properties in Muswell Hill in North London, have provided clarification on not one, but two separate points.

The PWA 1996 provides an entire regime for the resolution of any dispute that falls within the ambit of the statute, which typically culminates in the party wall surveyors making a binding award which governs: conduct of the works; any compensation payable to the adjoining owner; allocation the costs of the statutory process; and any other matter arising out of or incidental to the dispute.

The dispute between Lea Valley and Mr Derbyshire related to the basis for calculating the amount of compensation payable to Mr Derbyshire in circumstances where the works carried out by Lea Valley caused so much damage to his property that the proper economic solution was for it to be demolished and rebuilt, rather than just repaired.

The first question for the court was whether it had the necessary jurisdiction to make that decision.  O’Farrell J held that the court has an inherent jurisdiction to make a declaration about a matter covered by the PWA 1996 regime, and it would take very clear wording in a statute for it to oust the inherent jurisdiction of the courts.  Unlike section 1 of the Arbitration Act 1996 (a statute passed in the same year), the PWA 1996 contains no such wording.

So, as well as the ability to deal with an appeal under section 10 of the Act, or to grant an injunction when a neighbour has failed to comply with the Act, the court has inherent jurisdiction to grant declaratory relief too.

As to what the correct measure of damages should be in the present case, Mr Adrian Williamson QC decided in the second case that the common law basis should apply. That is, the injured party should be restored to the position they would have been in had the damage not been caused. The value attributable to that was the cost of reinstating the building to its original condition, which in this case involved demolishing the existing building and rebuilding it.

In arriving at that conclusion, Mr Williamson QC drew parallels with the law of nuisance, reasoning that the cause of the damage was an action which (but for the operation of PWA 1996) would have constituted a legal nuisance, but emphasised that there is no hard and fast rule which can be applied in all cases.  The comparison might have been apt to the facts in this case, but I am not sure that the court would necessarily come to the same conclusion in every case. A different set of facts, especially about the type of property that was damaged (and the condition it was in), might have yielded a different decision.

A full copy of the case report can be found here.

This blog is based on a blog first prepared by Tim Reid for practicallaw.com.

Posted in Real Estate News

Money Laundering Regulations 2017: government rush threatens a teething period for property auctioneers

New money laundering regulations could prove to be a headache for property auctioneers until those affected get to grips with the changes, according to leading figures in the industry.

The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the “Regulations”), as laid in Parliament on 22 June 2017 and coming into force just four days later on 26 June 2017, replace the previous regulations (the Money Laundering Regulations 2007 (MLR 2007) and the Transfer of Funds (Information on the Payer) Regulations 2007) and are intended to improve upon and plug certain gaps in the MLR 2007. The Regulations transpose the EU’s 4th Anti Money Laundering Directive into UK law and impose (amongst other changes) more rigorous due diligence demands on all those affected, including property auctioneers, requiring them to conduct more thorough due diligence to verify the identity of buyers and sellers, and to check the source of buyer’s funds.

There should normally be a minimum of 21 days between such statutory instruments being laid and coming into effect but, due to the general election, the government was forced to rush through the Regulations in order to meet the EU deadline of 26 June and avoid incurring fines if that deadline was not met.

As a result, auctioneers are having to get to grips with the new demands over a short period of time. The auction market is likely to be impacted particularly by the more stringent client due diligence (CDD) checks as, to date, auction houses have often only asked for a person’s ID once a bid has been accepted. Guidance just published by HMRC indicates that the new minimum CDD requirements include: completing customer due diligence on all customers and beneficial owners before entering into a business relationship or occasional transaction; and identifying and verifying a person acting on behalf of a customer, such as a person bidding at an auction on another’s behalf (including verifying that they have authority to act).

Despite the frustrations that auctioneers and their customers could face in the short-term, the RICS Real Estate Auction Group (RREAG) has commented[1] that transparency and a commitment to anti-money laundering is essential in the industry, and RREAG is consulting with HMRC on how the Regulations will be implemented and complied with going forward.

It is also hoped that HMRC will take into account the short amount of time businesses have had to acclimatise when assessing compliance whilst the Regulations are in their infancy.

In addition, as noted in HMRC’s consultation document, elements of the 4th Anti Money Laundering Directive were reopened following terrorist attacks in Europe and the leak of the “Panama papers” and those negotiations are still ongoing. The government intends to separately consult on the amended directive once it has been published in the Official Journal of the European Union and has come into force. Further changes may therefore be on their way.

As for Brexit, until exit negotiations are concluded, the UK remains a full member of the European Union. During this period, HMRC has confirmed that the government will continue to negotiate, implement and apply EU legislation.

[1]               See “Letter to the Editor”, EGi, 04/07/2017

Posted in Real Estate News

ESOS – Lessons Learned and Looking to the Future

Large businesses will remember the challenges of trying to comply with Phase I of the Energy Savings Opportunity Scheme (ESOS) in the run up to Christmas 2015. “Trying” was the operative word because “lead assessors” (who are key in assessing and signing off on a business’ ESOS compliance) proved to be in such short supply during the last minute rush of Q4 2015 that the Environment Agency had to extend the notification deadline of 5 December 2015 by six weeks.

ESOS operates on a 4 yearly cycle, so the submissions that were made in December 2015/January 2016, or since then, were in respect of Phase 1.  Phase 2 has now started, with a compliance deadline of 5 December 2019, by which time further audits must have been carried out and compliance reports submitted by businesses that are required to participate.  As with Phase 1, a business must participate in Phase 2 of ESOS if it is either (a) a UK company that (i) employs 250 or more people or (ii) has an annual turnover of more than €50m and an annual balance sheet total of more than €43m or (b) an overseas company with a UK registered establishment which has 250 or more UK employees paying income tax in the UK.  A corporate group must participate as a whole if one or more of the companies in it is large enough to fall within the Scheme.  ESOS does not distinguish between property investors, developers, occupiers or funders, so any business that is large enough to meet the qualification criteria is required to participate in it.

Given the difficulties that participants had in the lead up to the Phase 1 deadline in finding lead assessors, and auditors to carry out their audits, the Environment Agency is wisely encouraging businesses to start work on their Phase 2 energy audits well in advance of 5 December 2019.  An Environment Agency newsletter issued to participants in June says:

“If you know that you will qualify for Phase 2, there is no reason why you shouldn’t start doing your energy assessments now.  You will not be able to carry out the assessment of your ‘total energy consumption’, as this has to include the qualification date of 31 December 2018. However, where you know that an energy supply will be included in your ‘significant energy consumption’, you can do the audit work on this supply.”

In June this year, the Environment Agency also published the results of their analysis to date of the Phase I submissions. Hundreds of businesses could be fined as much as £50,000 if they incorrectly claimed that they did not qualify for the scheme by 29 April 2016, which was the ultimate deadline for Phase 1 of ESOS (allowing for late submission after the (extended) December 2015 deadline).  The highlights of those results are as follows:

  • Of the Environment Agency’s initial estimate of about 14,000 participants (which was revised down to about 10,000 in 2016, and then again in 2017 to an unconfirmed number given the complexity of corporate groups) about 6,800 had submitted compliance notifications by the end of January 2017.
  • Approximately 1,500 businesses that the Environment Agency had thought might have to participate in ESOS had not contacted the Environment Agency at all. The Environment Agency has issued 300 enforcement notices to businesses in this group and confirmed to another 500 that they do not need to comply.  It expects to issue more enforcement notices to businesses in this group by the end of this year.
  • Approximately another 1,000 businesses contacted the Environment Agency to say that they did not need to comply; the Environment Agency has disagreed with “a number” of these businesses and will be issuing enforcement notices to them as well.
  • The Environment Agency audited 200 of the 6,800 ESOS compliance notifications received, and found only 16% of them to be fully compliant.  75% undertook remedial actions when asked to do so, which then made them compliant as well.  This does raise a concern over the quality of the audits and auditors that were engaged by participants, which had previously been flagged by some lead assessors advising businesses on Phase 1.
  • Of the remaining 9% of the sample, 4% were found to be from businesses that did not qualify for ESOS and 5% were non-compliant and did not undertake remedial actions.

Given the concerns about the quality of some of the audits that were undertaken in Phase 1, we encourage businesses to start thinking now about their strategy for compliance with Phase 2 of ESOS, and in particular to engage now with the auditors and lead assessors that they would like to instruct while those individuals still have capacity to undertake the necessary work.  A last minute rush in Q4 2019 is perhaps inevitable, but businesses that can get ahead of it should get better quality audits and allow themselves plenty of time to ensure that they have complied in full, especially where careful analysis of complex corporate group and/or property ownership structures are required to ensure that they have complied in respect of the correct group entities and properties.  There is always the possibility of implementing sooner something that may actually save energy and money, too.

Despite previous speculation about the immediate future of ESOS, which stemmed both from its inclusion in the 2015 Government review of energy efficiency taxes and the Brexit vote (given that the Scheme is the UK’s implementation of Article 8 of the European Energy Efficiency Directive), the Environment Agency confirmed last month that the Scheme will continue to operate as planned, effectively putting an end to such speculation. We previously blogged here on a potential expansion of ESOS as part of a replacement of the Carbon Reduction Commitment Energy Efficiency Scheme but, as nothing further has been heard on this, we assume that it won’t be happening any time soon.  So for now, businesses will need to think about compliance with the next Phase of the CRC, too, as the qualification year for that started in April this year.

Posted in Real Estate News

EMI and Frankenstein: Not dead yet

Last year, we blogged here on the case of EMI Group Limited v O&H Q1 Limited.  EMI was a case in which an assignment of a lease was rendered void, as it offended the provisions of the Landlord and Tenant (Covenants) Act 1995 which require tenants and guarantors to be released on assignment.  The Court confirmed that a tenant could not assign its lease to its guarantor.  It rejected the idea that the guarantor could take the benefit of the lease without the tenant covenants (a “Frankenstein’s monster” of a tenancy).  Instead, the Court decided that the entire assignment was void. In doing so, the case highlighted the “unattractively limiting and commercially unrealistic effect” of previous Court decisions which have in many circumstances hampered a tenant’s ability to assign its lease intra- group.  To the frustration of many, these restrictions on the tenant’s ability to assign apply even where all parties are prepared for and fully advised of the consequences.

The EMI case has now settled and will not go to appeal. The opportunity for the Court of Appeal to revisit, and perhaps clarify, this area of the law has, for the time being, been lost.  There is however some hope for those frustrated by the, perhaps, unintended consequences of the 1995 Act.  The Property Litigation Association (“PLA”) has submitted proposed amendments to the 1995 Act to the Law Commission, with the support of the British Property Federation, the British Retail Consortium and the Property Bar Association.  Details of the proposed amendments can be found here.  These reforms address the difficulties currently faced with intra-group assignments, along with a suite of other issues that have arisen as a result of the 1995 Act. The PLA proposes, amongst other things, to allow guarantors to give repeat guarantees in intra-group scenarios and specifically tackles the issue that arose in EMI by proposing to allow a guarantor to take an assignment of a lease.

The Law Commission will shortly announce its projects for the Thirteenth Programme of reform and many hope to find the 1995 Act on the list.

Posted in Real Estate News

Government pushes ahead with ban on residential letting fees

The government has announced that it will bring forward proposals to ban letting agent fees in England.  The measures, announced in the Queen’s Speech, will be implemented through a new Tenants’ Fees Bill.

The government had already targeted upfront fees in the 2016 Autumn Statement with a promise to ban fees “as soon as possible”; a promise which was reiterated in the conservative party manifesto. An eight-week consultation was published in April of this year and closed on 2 June. The government has yet to publish the results of that consultation. The measure is likely to pass into law, as all the main parties included similar commitments in their election manifestos.

With figures indicating that the average fee for each tenancy is £223, the government’s key measure will be to ban landlords and agents from requiring tenants to pay such costs as a condition of their tenancy. The government hopes that this will increase transparency and make renting fairer and more affordable for millions of tenants. Of course, the cost of renting will only become more affordable if the charges are not ultimately passed onto tenants in other ways, such as rent hikes.

Although the draft Bill is expected to ban any conditional payments for a tenancy there will be exceptions: rent; a capped refundable security deposit; a capped refundable holding deposit (to take the property off the market); and tenant default fees. Holding deposits will be capped at no more than one week’s rent and security deposits at no more than one month’s rent.  Although no reference is made to service charges this was flagged up as an exception in the consultation and we would expect them to be dealt with in the Bill.

Measures are also expected to be introduced to enforce the ban with provision for tenants to be able to recover unlawfully charged fees but it is not clear whether this would be retrospective or only apply to fees charged after the legislation comes into effect.

Until the draft Bill is published, the exact extent of the proposals will remain unclear but the message that the government has chosen to promote is that it is firmly grasping this particular nettle to take the sting out of letting fees for tenants.

Posted in Real Estate News

Removing the limits – a new class of real estate investment vehicle

UK limited partnerships have been go-to investment vehicles for United Kingdom real estate for many years.  Their attraction lies principally in their tax transparency, contractual flexibility and the limited liability protection they are able to offer investors.  They have not been without their issues, however, and, from 6 April 2017, investors and fund managers are able to make use of new legislation that has created a more flexible and simplified class of vehicle – the ‘private fund limited partnership’ (PFLP).

The legislative reform is designed to modernise, simplify and amend the existing legislation on UK limited partnerships in order to ensure that they remain competitive, particularly in light of newer tax efficient vehicles offered by major offshore jurisdictions.

All UK limited partnerships (both existing and new) that meet the PFLP conditions can apply to become PFLPs. The principle changes introduced by the PFLP regime relate to:

(a) The inclusion of a “white list” of activities that a limited partner can undertake without jeopardising its limited liability status.

(b) Increased flexibility in how PFLPs are funded by limited partners and in how limited partner capital is returned.

(c) The removal of other administrative burdens.

A non-exhaustive “white list” of limited partner actions

If a limited partner in a UK limited partnership participates in the management of the partnership’s affairs, it risks losing its limited liability. As a result, the introduction of a “white list” of safe harbours for limited partners in PFLPs provides some welcome clarity.

The white list proposals align PFLPs with a number of offshore jurisdictions regularly used in real estate investment structures (including Jersey, Guernsey and Luxembourg), which already provide safe harbours for limited partner involvement in decision making.

The white list includes: amendments to the PFLP agreement and the PFLP’s business; approving valuations of the PFLP’s assets; approving the PFLP’s accounts; extending the life of the PFLP; and deciding who will run the PFLP’s day-to-day business (all of which are matters that are usual for investors to carry on).  In addition, a limited partner of a PFLP will be allowed to be a director or shareholder of the general partner and to appoint representatives to a limited partner committee.

The white list is not exhaustive nor is it prescriptive; it will be a matter of commercial negotiation and agreement between the partners as to whether limited partners will be entitled to carry on any of the listed activities.

Relaxation of capital requirements

On the administrative side, the requirement to make a capital contribution will be removed for new PFLPs set up after 6 April 2017 and there will be no need to declare capital contributions at Companies House.  If any (optional) capital contributions are made to these new PFLPs, they will be capable of withdrawal. The current law will continue to apply, however, to capital contributions that were made to existing UK limited partnerships before they opted into the PFLP regime.  This means that although such capital contributions can be withdrawn, the limited partners may be required to return them.

The dual approach will ensure that any creditors will not be prejudiced by a UK limited partnership’s subsequent reclassification as a PFLP.

How to qualify as a PFLP

To qualify, the UK limited partnership must satisfy the following conditions:

(a) it is constituted by a written partnership agreement;

(b) it is a “collective investment scheme” for the purposes of the Financial Services and Markets Act 2000, which includes those that would qualify as collective investment schemes were it not for one of the statutory exceptions.

Registration

UK limited partnerships that qualify may opt into the PFLP regime:

(a) if registered on or after 6 April 2017, immediately upon registration (or they can opt in at a later date); or

(b) if registered before 6 April 2017, at any time after 6 April 2017.

Once a UK limited partnership becomes a PFLP, however, it will not be able to return to its ordinary limited partnership status.

Going forward

The creation of the PFLP regime is a welcome step and the conditions for qualification as a PFLP are straightforward.  We expect that the PFLP is likely to be the default choice for investors using UK limited partnership structures going forwards.

An earlier, expanded version of this blog appeared in our Real Estate Quarterly Spring 2017 edition.

Posted in Real Estate News

Nationwide announces position on onerous ground rents

Nationwide announced recently that it will not lend on new build residential leasehold properties if the amount of ground rent is more than 0.1% of the purchase price.

This change has been introduced by Nationwide in part to protect the marketability of the property from what Nationwide describes as “unreasonable multipliers”, such as ground rents doubling every five, ten or 15 years.

As many of our readers will be aware, ground rents are annual rental payments made to the freeholder under a long lease of a house or flat.  The amount payable can range from practically nothing (a “peppercorn” rent) to a significantly greater sum.  Last year, we blogged about the dangers of a ground rent which doubled every 10 years in the lease of a flat, which theoretically resulted in the annual ground rent ending up as millions of pounds.

Nationwide’s announcement brings welcome transparency to the type of ground rents that lenders will consider to be onerous.  This is helpful for occupiers, but also for developers, many of whom will factor future ground rent income into their viability assessments when planning developments.

Nationwide’s view is that escalating ground rents should be index linked, such as to the Retail Prices Index (RPI).  Index linked increases are seen as fairer than a doubling or other fixed % uplift ground rent, but they are no less complex, and bring their own issues.

Future rent payable is uncertain (and could end up being more than 0.1% of the value of the property).  Careful attention must be paid to the way in which the provisions are drafted, otherwise the unwary can fall into traps (such as compounding RPI increases).  And of course the provisions must cater for future changes in the way in which the RPI is calculated, or even if it is abolished (less likely for a 10 year lease, much more likely for a 999 year lease!)

Whatever the merits of increasing ground rents, as the doubling ground rent scenario demonstrates, any increase in rent should be drafted in a way that is clear and transparent, so that it can be more easily understood by both leaseholders and landlords.

 

Posted in Real Estate News

Did WannaCry make you want to cry? Real risks for landlords and tenants

As the extent of the damage caused by the recent WannaCry ransomware virus becomes clearer, businesses across the world have been reminded of the critical importance of cyber security measures, and the potential fall-out should those measures prove insufficient or ineffective.

The virus worked by encrypting the victims’ data and then demanding payment for its release, exploiting a weakness in Microsoft systems relating to file sharing, a facility that is vital to the way modern businesses work. Particularly notable was the range of entities that suffered. Some NHS trusts had to cancel appointments and operations due to their inability to access their computer systems, and the public were encouraged not to use emergency services unless absolutely necessary as a result.  Companies across the globe, from Deutche Bahn to FedEx, were affected.

Late last year, we blogged about the implications that a cybersecurity attack like this might have on landlord and tenant relationships, in particular where multiple tenants occupy a building with a ‘smart’ building management network, controlling everything from online storage to heating and electricity controls. Depending on the nature of the system used, WannaCry could in theory have taken advantage of any interconnectivity or filesharing between the tenant’s system and the building’s system to reach the tenant’s business records.

This begs the question of what landlords can do to protect themselves against these risks, and whether tenants need to be asking more questions regarding their landlord’s cyber security systems, particularly if tenants’ own data can be accessed via their landlord’s system. Such measures might include:

• adding loss caused by a cybersecurity attack as an insured risk (but note below);
• putting each party under an  obligation to take all reasonable precautions against the threat of a cyberattack including an obligation to have sufficiently strong anti-virus software at all potential entry points to the systems;
• ensuring separation of BMS/landlord/tenant networks where appropriate.

Landlords might well resist widening the definition of insured risks depending on their policy coverage because the insurance industry is still struggling to address losses arising out of attacks like these and cover is not widely available.  There is also little understanding as to cost, and as the tenant will ultimately be bearing the cost it needs to know what those costs might be.

Posted in Real Estate News

A new dawn? Revised Telecoms Code receives Royal Asset

In the sweep-up sessions just before Parliament was dissolved earlier this month, the Digital Economy Act 2017 received Royal Assent. The Act, once brought into force, includes a new Electronic Communications Code. What is it and why does it matter?

Property owners are often happy to allow telecoms operators to install equipment on otherwise redundant parts of their properties, such as the roof, and enjoy the revenue stream. But there’s a catch. Once installed, it can be extremely difficult to get rid of the equipment if the owner wants vacant possession in order to redevelop. The existing Electronic Communications Code provides statutory rights for telecoms operators to keep their apparatus on privately owned land. There are ways in the Code to remove operators, but they are contradictory and complex, resulting in landowners often having to resort to paying a cash settlement to the operator for them to go.

The existing Code has also struggled to keep up with advances in technology and is famously quoted by a senior judge as being “one of the least coherent and thought-through pieces of legislation on the statute book”.

So, has that been fixed with the new Code? Leaving aside termination of Code rights and removal of equipment, it is largely based on the existing Code. Operators can enter into an agreement with property owners to install equipment, which now needs to meet certain formalities, or they can apply to court for an order imposing Code rights. The test for whether a court will impose Code rights has now been placed on statutory footing, as has the method of compensating any owner or occupier for the imposition of rights. This removes any ransom value that the owner or occupier previously held, which is particularly important for operators in rural locations where there are limited sites to extend their network and provide the coverage expected by consumers and businesses today. But arguably, it removes much of the incentive for owners or occupiers to grant Code rights voluntarily.

The biggest change, however, is the process for terminating Code rights. The new Code removes the dual protection currently enjoyed by operators under both the Code and the Landlord and Tenant Act 1954. Once the new Code comes into force, an operator can either have Code protection or 1954 Act protection, but not both.

For agreements under the new Code, there will be a two stage process for termination, potentially involving two applications to the court and a timescale of at least 2 years to achieve vacant possession. At first blush, this might horrify landowners as the timescales in the existing Code appear much shorter. In practice, existing timescales tend to be similar where an operator contests the removal of equipment. Once the new Code is in force, it is likely that landowners will continue to negotiate with operators to leave early, but they may have to pay a higher price as operators may leverage the longer notice periods involved.

Another key change is that the new Code enshrines the automatic right for operators to upgrade and share their equipment. Any restrictions on those rights in agreements granted after the new Code comes into force will be void.

There is an intricate set of transitional provisions and any landowner who wishes to obtain possession against an operator under an existing agreement after the new Code comes into force should seek legal advice before acting.

The new Code is not without criticism and a number of areas have already been identified as ripe for dispute. There is no indication at this stage when it will be brought into force, but watch this space.

Posted in Real Estate News

Indecent Proposals: Tenants giving notice of intention to appoint administrators

It has long been a bone of contention for landlords that tenants can simply file a notice of intention to appoint administrators in order to get an automatic moratorium against any enforcement action.  This prevents a landlord from forfeiting, suing or exercising CRAR irrespective of whether the tenant goes into administration and, seemingly, whether it ever really had such an intention.

Not anymore.  On 11 April 2017, the Court of Appeal handed down judgment in JCAM Commercial Real Estate Property XV Limited v Davis Haulage confirming that any notice filed without a settled and unconditional intention to appoint administrators was an abuse of the court’s process, and liable to be struck out.  It is a welcome decision for landlords concerned about tenant companies playing the insolvency process for their own ends.

The case was about warehouse premises in Crewe where the tenant, Davis Haulage, had built up considerable arrears.  By January 2016, the landlord had had enough and issued forfeiture proceedings.  Unknown to the landlord, the tenant had shortly beforehand filed at court a notice of intention to appoint administrators.  The result was that, under paragraph 44 of Schedule B1 to the Insolvency Act 1986, forfeiture was a breach of the statutory moratorium and the landlord could not continue the proceedings without the court’s permission.  This moratorium lasted 10 business days, but the tenant went on to file three further notices giving it a much longer period of protection.

By the time the tenant filed the fourth notice, it had proposed a company voluntary arrangement (CVA) to compromise its debts.  The tenant’s justification was that, if the CVA was not approved by its creditors, then it would have to consider selling the business through a “pre-pack” administration.

The landlord made an application to have the fourth notice struck from the court’s file on the basis that the tenant did not have a fixed or settled intention to appoint administrators.  The decision turned on the wording in paragraph 26(1) of Schedule B1, which requires anyone who “proposes” to appoint an administrator to give notice of intention to certain parties.  At first instance, the judge found for the tenant, saying that someone can propose to do something without having any settled intention.

This has now been overturned on appeal.  The Court of Appeal said that if “propose” did not mean “intend” in this context then it would not be called a “notice of intention”.  The real issue, however, was whether that intention could be conditional, and the court said that it could not.  This followed from the facts that a company proposing to appoint was obliged, not just entitled, to give notice and that the purpose of it was to give qualifying floating charge holders and others a chance to exercise their prior right to appoint.  It was also relevant that a process was available for small companies proposing a CVA to obtain a moratorium; if the tenant was right then this would be redundant and any company, large or small, could file a notice to get a moratorium.

Whilst the court stopped short of saying that the tenant or its advisers had filed notices without believing it was entitled to do so, it made clear for the future that any notice filed with only a conditional intention to appoint administrators would not be validly given.

JCAM Commercial Real Estate Property XV Limited v Davis Haulage [2017] EWCA Civ 267