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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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A sewerage undertaker owes a general obligation under section 94(1) of the Water Industry Act 1991 ( WIA 1991) to secure that the area for which it is responsible is, and remains, effectually drained. That obligation is enforceable solely by Ofwat under WIA 1991, s 18. Consequently, to make sure domestic requirements of premises are satisfied by connection to the principal sewerage network within a reasonable period, developers, or owners and occupiers of existing premises, have a right to requisition sewers or lateral drains to meet those needs under s 98 of the Act, provided the financial provisions set out in s 99 (as amended by the Water Act 2014 ( WA 2014)) are observed. Making a requisition A requisition begins with the formal service of a notice on the sewerage undertaker requiring provision of a sewer or a lateral drain. Only the owner or...
( PROW) are highways that give the public a lawful right to pass. They hold the same legal status and protection as highways and continue until formally closed, diverted or extinguished. It is a criminal offence to obstruct a PROW. Identifying PROW early can help avoid possible delays to development or issues when selling properties. Local authorities have a legal duty to keep all PROW accessible to the public and can use enforcement and bring prosecutions to make sure PROW stay open... Types of PROW Although a PROW must be open to everyone, the right to use a specific PROW is confined to certain classes of user. The main categories are: a carriageway—over which the public have a right of way on foot, riding on or accompanied by a beast of burden, and with vehicles and cattle a...
Introduction This playbook sets out guidance on negotiating the terms of a signage clause—covering advertisements, signs, and similar items—within a lease of part of a larger building, for example an office block or a shopping centre (or another comparable retail environment), to make those terms more favourable to a tenant (tenant-friendly or pro-tenant). It provides preferred wording, fallback options, and drafting notes designed to benefit the prospective tenant. The playbook is intended for use by lawyers acting for prospective tenants and in-house counsel, who should adapt it as required to address client-specific concerns and ensure the client’s interests are fully protected. The level of risk referenced may vary depending on the client. Please note, this playbook does not include drafting for situations where the tenant holds a significant negotiating advantage (for instance, where the tenant is an anchor tenant). It forms part of a...
Introduction This playbook offers guidance on negotiating the terms of a repair and/or decoration clause for a lease of part of a larger building—such as an office block or a shopping centre (or another comparable retail environment)—with the aim of achieving tenant-favourable outcomes (tenant-friendly or pro-tenant). It sets out preferred provisions, fallback wording, and drafting notes that support the prospective tenant. The playbook is intended for lawyers acting for prospective tenants and in-house counsel, who should tailor it as required to address client-specific matters and to ensure the client’s interests are fully safeguarded. The level of risk identified in the playbook may differ depending on the client. Note that this resource does not include drafting for cases where the tenant enjoys a strong negotiating position (for example, where the tenant is an anchor tenant). This playbook forms part of a wider suite of...
Introduction This playbook sets out guidance on negotiating clauses that restrict disposing of or sharing possession or occupation under a lease of part within a larger property, for example an office block or a shopping centre (or a comparable retail setting), with the aim of making terms more favourable to the tenant (‘tenant-friendly’ or ‘pro-tenant’). It presents preferred wording, alternative fallbacks, and drafting commentary aligned with the interests of a prospective tenant. Practitioners acting for would-be tenants, together with in-house legal teams, can deploy this playbook and tailor it as required to reflect client-specific matters and to ensure the client’s position is comprehensively protected. The degree of risk flagged in the playbook may differ according to the client. Be aware that the playbook does not offer drafting for cases where the tenant holds a marked negotiating edge (eg where the tenant is an anchor...
Introduction This playbook sets out guidance on negotiating the terms of a tenant’s break right (also called a tenant’s break clause or option to break/determine) where the lease covers part of a larger building, for example an office block or a shopping centre (or a comparable retail setting), with the aim of making the terms more favourable for a tenant (‘tenant‑friendly’ or ‘pro‑tenant’). It contains preferred provisions, fallback wording, and drafting commentary that are designed to favour the prospective tenant. The playbook is intended for lawyers representing prospective tenants and in‑house counsel, who should adapt it as required to address client‑specific matters and to ensure that client’s interests are fully protected. The degree of risk referenced in the playbook may differ according to the client. Note that it does not provide drafting for situations where the tenant has a significant bargaining advantage (eg where the...
Introduction This playbook offers direction on negotiating the charging clause terms for a lease of part within a larger building, for example an office block or a shopping centre (or a comparable retail setting), with the aim of making them more tenant‑favourable (‘tenant‑friendly’ or ‘pro‑tenant’). It sets out preferred provisions, fallback wording, and drafting commentary and notes that prioritise the prospective tenant. Lawyers acting for prospective tenants, and in‑house counsel, can deploy and adapt this playbook as needed to address client‑specific issues and to ensure the client’s interests are comprehensively protected. The level of risk referenced in the playbook may shift according to the client. Note that the playbook does not contain drafting for situations where the tenant has a pronounced negotiating advantage (eg where the tenant is an anchor tenant). This document sits within a wider collection of pro‑tenant...
Introduction This playbook sets out guidance on negotiating the terms of a guarantee clause for a lease of part of a larger building, such as an office block or a shopping centre (or another comparable retail setting), with the aim of making them more advantageous for a tenant (‘tenant-friendly’ or ‘pro-tenant’). It contains preferred provisions, fallback wording, and drafting commentary that supports the prospective tenant. Lawyers acting for would-be tenants and in-house counsel can use this playbook, adapting it as needed to address client-specific issues and to ensure the client’s interests are fully safeguarded. The degree of risk referenced in the playbook may differ depending on the client. Note that this playbook does not include drafting for circumstances where the tenant benefits from a substantial negotiating advantage (eg where the tenant is an anchor tenant). This document forms part of a broader...
Losing guarantee covenants At any stage in the economic cycle, landlords seek to shield themselves against tenant default, particularly where the occupier appears high risk — for instance, a newly formed small company, a minor subsidiary, or where enforcement is expected to be expensive (as with a foreign corporation). In periods of recession, or a credit squeeze, the need for protection features in every letting. Landlords commonly require a guarantee covenant from a guarantor as ‘principal debtor’ or ‘primary obligor’; this ensures the guarantor’s liability is direct rather than simply ancillary to the tenant’s. The breadth of the guarantor’s liability turns on construing the guarantee contract, but it can never exceed that of the principal debtor. A covenant in such terms is unlikely to displace the fundamental character of a guarantor’s liability, which is secondary and generally co-extensive with the tenant’s. The general law on...
Property transactions involving both private individuals and corporate entities face a heightened risk of targeting by fraudsters, so conveyancing lawyers must remain vigilant to possible warning signs. This Practice Note reviews the fraud prevention guidance and services issued by the Law Society and HM Land Registry, together with the scope for claims against practitioners for breach of retainer and breach of trust where a transaction proves fraudulent. Each firm should operate its own policies and procedures aimed at minimising fraud risk and fulfilling all applicable regulatory duties, and these must be observed at all times. Law Society’s practice note on property and registration fraud The Law Society and HM Land Registry have jointly produced a practice note on property and registration fraud. It reflects the Law Society’s view of good practice; whilst solicitors are not compelled to follow the guidance, the Law Society states that doing so will...
FORTHCOMING CHANGE: Following the Government’s response to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill obtained Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once in force, PAA 2023 will introduce amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more modernised lasting power of attorney ( LPA) service. The measures will include: bringing in regulations so that those involved in creating an LPA can choose whether to execute the instrument electronically or on paper; removing the option for attorneys to register an LPA, so that only the donor will be authorised to register; introducing regulations specifying identity verification requirements in relation to registration applications; providing for a single route for...
What are portfolio loans? A portfolio is a collection of investments, eg a group of properties, held by an investment company, hedge fund, financial or pension institution, or individuals. In property finance, portfolio investment loans are facilities offered by funders (banks and non-bank lenders) to borrowers who own, or aim to acquire and hold, a portfolio of properties for investment purposes (see Practice Note: Real estate finance—investment facilities—key features)... When are portfolio loans suitable? There is a blend of property types, such as office, residential or industrial assets Borrowers plan to buy a portfolio of properties Borrowers wish to use part of, or all of, their portfolio as security Rental income varies between properties or may fluctuate across the portfolio Borrowers want to consolidate their borrowings Reasons to consider portfolio financing Larger loan amount The facility is secured against the combined value of the...
What is an unincorporated association? In Koeppler, an unincorporated association was characterised as “a group of people linked by recognisable rules and an identifiable membership”. This wording distils the longer definition set out in Burrell. From these (and other) formulations, it can be concluded that an unincorporated association must: consist of at least two members involved in a non-commercial endeavour with some permanence; and be governed by contractual rules that bind all members. Many sports clubs, members’ clubs, political parties, charities and not-for-profit organisations operate in this way, commonly with little, if any, formal structure. No separate legal capacity An unincorporated association does not possess a legal personality distinct from its members. This absence of separate capacity creates a range of difficulties. A notable issue is that the association cannot hold property in its own name; instead, property must be held by...
ARCHIVED: This Practice Note has been archived and is not being maintained. The Property case tracker compiles significant 2021 judgments we consider relevant to property lawyers, presented in reverse chronological order. The tracker uses the following definitions: AST: assured shorthold tenancy CVA: company voluntary arrangement FTT: First-tier Tribunal HMO: house in multiple occupation LPA: local planning authority NPPF: National Planning Policy Framework RRO: rent repayment order RTM: right to manage TCC: Technology and Construction Court UT: Upper Tribunal ( Lands Chamber) VTE: Valuation Tribunal for England See also the Property key future developments tracker, which tracks the progress and outcome of appeal cases, whereas this document provides a summary of all cases that we consider relevant to property lawyers. See further: Property case tracker—2020 [ Archived]. December 2021 Hussain v Revenue and Customs Commissioners [2022] UKFTT 13 ( TC) — 23 December 2021 — CGT, main residence relief: the FTT held that, taking into account the nature, quality, length and...
A property joint venture is a structure through which two or more parties bring together different contributions to realise value from the development, purchase or ongoing management of property. In most situations, that value is gauged by income streams or capital returns; however, certain joint venturers—such as local authorities—participate for social purposes, for instance in connection with urban regeneration programmes, community initiatives and similar projects. Contributions from the joint venturers typically comprise a combination of: cash, or the capacity to enter into funding commitments tangible assets (e.g. land) intangible assets (e.g. expertise, intellectual property, construction services, contractual rights, etc) Common participants in property joint ventures include property companies, developers, onshore institutional investors, offshore investors, landowners, local authorities and other public sector organisations. Why enter into a property joint venture?......
The properties held by a company can be obtained by two routes: an acquisition of assets owned by the company (an asset purchase), or an acquisition of the company’s shares (a share purchase) Asset purchase On an asset purchase: the buyer takes the undertaking as a going concern and may select which elements of the business, together with any assets and liabilities, it wishes to take on every property owned, used or occupied by the undertaking must be conveyed, assigned or transferred to the purchaser within the sale documents Properties may be sold outright, or the buyer may be granted a fresh lease. Where a leasehold interest is involved (whether already existing or newly created), particular issues arise. For more information, see Practice Note: Leasehold property issues arising on an asset purchase. The properties will be identified in the sale...
Practice Note This Practice Note sets out the property aspects of the disclosure exercise undertaken by a seller on a sale of shares in a company (the ‘target’) or on a disposal of business assets. It outlines the disclosure letter and disclosure bundle, and highlights practical considerations for the property solicitor when acting for either buyer or seller. The seller’s property disclosure is intended to qualify the property warranties in the share or asset purchase agreement, thereby protecting the seller from liability for breach of warranty. Where a matter has been properly disclosed, the buyer cannot bring a claim. From the buyer’s standpoint, the disclosure process draws out information about properties owned, used or occupied by the target or business. The buyer must then evaluate the impact of the disclosures and may pursue a price adjustment, seek further protection through property...
Structure Reasons for the landowner to form a JV There are several motives for a landowner to pursue a JV for a development scheme, including: spreading risk with a partner and directing specialist exposures to the appropriate JV party — in particular, transferring such risk to a developer seeking a higher return on a land disposal than a simple receipt with overage — the landowner may lack the expertise and resources to develop the site, but in a JV can share more fully in the upside; while exposure may increase, potential profits can also rise to reflect the added risk From a landowner’s perspective, it should avoid over‑complicating the JV structure and thereby taking on greater risk and liability — especially if it does not have the skill set and/or resources to supervise a developer and/or investors within a JV. For example, a more...
Choosing a structure Unless a single entity promotes a scheme (with or without mortgage finance), many projects proceed by way of a collaborative joint venture arrangement (often known as a ‘ JV’). This remains the prevailing approach across numerous property schemes today. This Practice Note sets out the corporate and contractual JV models most frequently used to regulate collaborations between landowners, developers, funder and investors in property development. For additional guidance on choosing an appropriate structure in any particular situation, see Practice Notes: Setting up a joint venture—choice of structure and Property Joint Ventures—choosing the right structure. JV company A JV company is a separate legal person, distinct from its shareholders and directors, who—provided there is proper management and solvency—enjoy limited liability. Shareholder agreements govern the collaborative relationships between the participating shareholders. As a private document, the shareholders’ agreement is not accessible to...
Introduction This Introductory Guide forms part of the Lexis Nexis Introductory Guides to Property. These Guides aim to help apprentices, paralegals and others understand both the kinds of transactions a property lawyer commonly undertakes and the legal context in which they are completed. This Guide concentrates on Property Development. The wider series includes: Introductory Guide to Commercial Property Introductory Guide to Land Law Introductory Guide to Property Finance Introductory Guide to Property Taxes Introductory Guide to Residential Property Every Guide is supported by a Glossary of Property Terms, offering definitions and, where suitable, explanations of numerous words and phrases used daily by property practitioners. Terms shown in bold within this Guide are defined in the Glossary. Contents What is property development? Why carry out development? What do property developers do? Who carries out the...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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