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The Twenty Fifth Annual Briefing

The Annual Henry Stewart Briefing
on


Rent Review
Law and Practice

 


Chairman

Paul Morgan QC
Falcon Chambers

 

Speakers

Katie Bradford
Partner, Property and Finance Litigation
Linklaters

Graham Chase FRICS FCIArb
Chairman
Chase & Partners
and
Chairman
RICS Commercial Property Faculty

Roger Cohen
Head of Real Estate Disputes
Berwin Leighton Paisner

Simon Curtis
Partner
Knight Frank

Tim Dutton
9 Old Square

David Green
Senior Partner
David Green & Company

Colin Manders DipArb FRICS FCIArb
Director
DTZ Debenham Tie Leung

Anne Waltham
Partner and Joint Head of Property Litigation
Wragge & Co.

 

NEW OPPORTUNITIES FOR CREATIVE NEGOTIATION AT RENT REVIEW AS A CONSEQUENCE OF RECENT COURT DECISIONS

  • Making full use of 'the world of virtual reality'
  • Understanding how 'strict construction - v - underlying purpose' interacts and where the border is set in each individual case
  • Interpreting "from the date hereof"
  • The implications of: "..it is unfortunate that over 15 years after these cases were decided, the legal effect of a common provision in a rent review clause is still unknown. This is the common law at its least impressive."

Anne Waltham, Partner and Joint Head of Property Litigation, Wragge & Co.

 

RENT REVIEWS FOR THE CURRENT MARKET. TIPS AND TRAPS FOR A MARKET OF FALLING RENTS

  • The effective use of Calderbanks
  • New strategies for involving experts and arbitrators
  • Taking account of tenant covenant - who is the hypothetical tenant?
  • Why hypothetical demand matters
  • The use of indices
  • The implications of Break Clauses for landlords and tenants
  • Tenants as ‘unwilling landlords’
  • Analysis of comparable evidence
  • Effective date of market lettings

Simon Curtis, Partner, Knight Frank

 

PROBLEMS WHEN TRIGGERING THE REVIEW

  • Latest guidance on “time of the essence”
    - United Scientific rules
    - What is the current position? Starmark in CA (2002)
    - Turner v Confederation Life Insurance (2002)
  • What if no timetable?
    - Iceland Foods plc v Dangor (2002)
    - First Property Growth Partnership v Royal Sun Alliance (2003) - service before the rent review date
  • Tenant’s remedy – making time of the essence
    - Barclays Bank plc v Saville Estates (2002)

Katie Bradford, Partner, Property and Finance Litigation, Linklaters

 

SERVING NOTICES: WHY ARE SO MANY MISTAKES MADE? HOW TO AVOID THEM

  • What are the rules?
    - Section 196 Law of Property Act 1925 – Claire’s Accessories UK v Kensington High Street (2001)
    - Section 23 Landlord and Tenant Act 1927
    - WX Investments Ltd v Begg (2002)
    - Blunden v Frogmore Investments Ltd (2002)
  • Avoiding errors in the notice
    - Procter & Gamble Technical Centres Ltd v Brixton Estates plc (2002)
    - R v London Rent Assessment Committee, ex parte Morris (2002)
    - Pennycook v Shaws Ltd (2002)
    - Equinox v Sketchley Ltd (2003)
  • Mannai Test
    - Trafford MBC v Total Fitness (UK) Ltd (2002)

Katie Bradford

WRITTEN REPRESENTATIONS (SUBMISSIONS) TO ARBITRATORS AND INDEPENDENT EXPERTS. MISTAKES, THEIR CONSEQUENCES AND HOW TO AVOID THEM
The mistakes when dealing with:

  • Absence of clear proof
  • The ‘quality’ of evidence
  • Agreed evidence
  • A matter of “opinion” - and how to express it clearly
  • A tendency to advocacy rather than impartiality; the art of presenting evidence
  • The mystery of the expert witness’s adjustments to the comparables
  • Market reports and indices
  • Too many so called comparables: What is comparable? What if there are no comparables?
  • How to avoid these mistakes

Differences in the form and content of submissions to experts from those to arbitrators and what to do about them

  • Problems of enforcing disclosure – can the expert pick up on adverse inference?
  • Summoning witnesses; breaking confidentiality agreements. What can the expert do?

Dealing with practical problems such as:

  • The inclusion of Without Prejudice material by your opponent
  • When does rebuttal become new evidence?
  • What, in practice, works for Disclosure
  • How relevant is “relevant”?
  • How to impress with dignity and competence

David Green, Senior Partner, David Green & Company

 

IMPLICATIONS FOR PRACTICE OF THE RICS GUIDANCE NOTES ON SURVEYORS ACTING AS ARBITRATORS AND INDEPENDENT EXPERTS

  • How the Guidance Notes apply to you
  • Key changes from the “old” guidance
  • What do the “new” notes say about costs?

David Green

 

SUBLETTING AND RENT REVIEW: LESSONS FROM THE HOMEBASE CASE

  • Allied Dunbar Assurance plc v Homebase Ltd (2002)
  • The Homebase case explained
  • Importance of lease terms
  • Key terms and subletting
  • Importance of rent review and repairing obligations

Tim Dutton, 9 Old Square

 

THE HYPOTHETICAL LEASE REVISITED – PROBLEMS, ARGUMENTS AND COUNTER ARGUMENTS

  • The hypothetical lease: problems explained, solutions proposed
  • The length of the hypothetical lease
  • Presumptions in favour of reality: when the presumption really matters
  • Dealing with onerous terms in a changing market

Roger Cohen, Head of Real Estate Disputes, Berwin Leighton Paisner

 

LATEST THINKING ON DRAFTING AND NEGOTIATING RENT REVIEW CLAUSES AFTER THE NEW CODE OF PRACTICE: SECOND EDITION

  • Practical consequences of the Code of Practice for Commercial Leases in England and Wales
  • What does the code really say?
  • New key issues for the draftsman
  • Using the code in negotiations
  • What does happen if you don’t comply?
  • Consequences for and of upwards and downwards reviews

Roger Cohen

 

UNDERSTANDING THE VALUATION IMPLICATIONS AT RENT REVIEW OF IMPLEMENTING THE NEW CODE OF PRACTICE

  • Pricing the options
  • Consequences of the shorter lease
  • Implications of upward and downward rent reviews
  • Repairing liability matters and inclusive rents
  • Impact on capital markets and financing
  • The law of unexpected consequences

Graham Chase FRICS FCIArb, Chairman,
Chase & Partners
and
Chairman, RICS Commercial Property Faculty

 

THIRD PARTY DETERMINATION IN THE CURRENT MARKET

  • Timing the third party appointment and tactics - when to apply, the choice between arbitrator and expert
  • Choosing and appointing an arbitrator (after Checkpoint Ltd v Strathclyde Pension Fund (2003)) – is it the best policy to rely upon the RICS Appointment Service?
  • Identifying and dealing with conflicts – what to do with a subsequent discovery or unconsidered conflict
  • Who is in control of the third party proceedings?
    - Strategies for involving experts and arbitrators
    - The Expert’s Contract – the lease and starting afresh
    - The arbitrators powers and initiative – how much power/interference/ influence is desirable?
    - Can you control the third parties costs?
  • New standards in what is expected of expert witnesses
  • How to deal with Calderbanks and “near misses”
  • Challenging awards of experts and arbitrators. When and how to make the challenge
    - Checkpoint Ltd v Strathclyde Pension Fund (2003)
    - Guardcliffe Properties Ltd v City & St James Property Holdings (2003)
    - Warborough Investments Ltd v Robinson & Sons (Holdings) Ltd (2002)

Colin Manders DipArb FRICS FCIArb, Director, DTZ Debenham Tie Leung