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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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This Practice Note sets out how rent review clauses operate in commercial leases. It also summarises the processes for resolving rent review disagreements by arbitration or expert determination. It does not address agricultural rent reviews; for those, see Practice Notes: Rent review under 1991 Act agricultural tenancies in Scotland and Rent review under 2003 Act agricultural tenancies in Scotland. Need for rent review Rent reviews enable commercial rents to be aligned with market conditions at the review date. They appear most often in longer commercial leases. Reviews occur at the intervals agreed in the lease’s rent review clause, typically every three to five years, though this may differ. In addition to specifying the dates, the lease should set out the method to be used for the review. Several approaches are available, discussed below; however, the open market rent basis is the most prevalent. For further detail, see:...
The practical lease negotiation collection serves as a guide to commercial property lease negotiations. Every Negotiation Guide in this collection spotlights a key clause, sets out market norms and the objectives of the landlord and tenant, whilst assessing any possible gaps or hazards for landlords and......
This Practice Note This Practice Note outlines the common law position and explores standard drafting practices in Scottish commercial leases, addressing landlord and tenant duties connected to insurance, insured and uninsured risks, reinstatement, rent suspension, and the circumstances in which termination may arise where the premises have been damaged or destroyed during the term. Where a lease is silent on repairing obligations, the landlord must put right any want of repair within a reasonable time after the tenant has notified the landlord of the requirement; refer to Practice Notes: Repair clauses in commercial leases in Scotland— Repair under the common law and Repair and dilapidation disputes—commercial leases in Scotland and Repair: Stair Memorial Encyclopaedia [501]. If the subjects are destroyed, or so damaged as to be unsuitable for use and occupation, the lease is terminated by the rule of rei interitus. It is usual for...
Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. An alterations clause sets out how far (if at all) a tenant may undertake alterations to the demised premises. Contemporary commercial leases usually separate alterations into: prohibited alterations alterations allowed with the landlord’s consent alterations allowed without the landlord’s consent If, unusually, the lease contains no alteration restrictions, the tenant may carry out any alterations to the demised premises. More often, commercial leases impose a general ban on alterations, with carve-outs for defined categories of works (eg internal non-structural changes) that may proceed either with, or without, the landlord’s prior consent. Drafting by exception in this manner helps to minimise confusion and reduce the risk of future disputes. The scope of permitted alterations—and any conditions attached to them—is shaped by the nature of the...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 obtained Royal Assent on 27 October 2025. For guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters' Rights Act 2025—key provisions. Law Society guidance on green leases The Law Society’s Guidance on Green Leases and Minimum Energy Efficiency Standards sets out what green lease drafting involves, what this means for solicitors and their clients, why green leases matter, how they affect the market and client demand, and model green lease clauses. It covers commercial property in England and Wales only. The key points are summarised below. What is green lease drafting? ‘ Green lease drafting’ refers to provisions by which landlord and tenant assume clear responsibilities and obligations to minimise carbon emissions linked to the sustainable development, operation and occupation of a property. Examples include energy efficiency measures, such as obtaining and/or...
FORTHCOMING CHANGES : There are a number of proposed reforms to the leasehold and enfranchisement landscape—see Practice Note: Property key future developments tracker for further details. This Practice Note sets out the principal time limits for exercising the statutory entitlement (subject to statutory qualifying criteria) of qualifying tenants holding long leases of flats to together acquire the freehold of the relevant premises containing the flats (collective enfranchisement) under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). It also explains the implications of missing those deadlines, including limits for service of a section 21 counter-notice, for service of the draft lease and responses, and for applications to the First-tier Tribunal ( FTT) (or Leasehold Valuation Tribunal ( LVT) in Wales) and/or to the County Court. For more comprehensive guidance on the LRHUDA 1993 collective...
This Practice Note explains the statutory entitlement, subject to statutory qualifying conditions, of qualifying tenants with long leases of flats to acquire, collectively, the freehold of the building containing those flats under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). It outlines the tests for qualifying premises and tenants, the service of a section 13 notice and any section 21 counter-notice, applications to the First-tier Tribunal ( FTT) (or the Leasehold Valuation Tribunal ( LVT) in Wales), County Court procedure, valuation and calculation of the purchase price, and completion of the acquisition. For a summary of typical time limits involved in the collective enfranchisement procedure, see Practice Note: Quick guide to time limits for collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. The collective right to...
Definitions of charity and charitable trust A charity is an institution established solely for charitable purposes and subject to the High Court’s charity jurisdiction. A charitable purpose falls within section 3(1) of the Charities Act 2011 and is for the public benefit. Charity trustees are those with overall control and management. Trusts are the provisions that establish and regulate a charity’s purposes and administration, whether or not they take effect as a trust. A charity relates to the legal persons; a charitable trust to the wholly charitable objects for which property is held, whether or not a charity exists. Charitable purposes must also be for the public benefit. The Charity Commission must issue guidance, and trustees must have regard to it, showing awareness, consideration in relevant decisions, and sound reasons for any departure. Benefits must produce demonstrable impact on the community or a...
Buyer beware An unsuspecting buyer may inherit substantial environmental liabilities linked to land and buildings. ‘ Caveat emptor’, meaning ‘let the buyer beware’, is a common law rule under which the seller has no obligation to reveal material facts to a prospective purchaser. See Practice Notes: Property—enquiries before contract and Misrepresentation, misstatement and non-disclosure in property matters. Consequently, the buyer must undertake its own searches, raise enquiries and carry out inspections before committing to a contract, to obtain the information it needs about the property. See Practice Notes: Pre-contract searches and Types of environmental searches and investigations. Contaminated land Remediation of contaminated land can incur very high clean-up costs, reaching several million pounds where groundwater contamination is involved. It can also cause property blight and derail a transaction. The local authority has a statutory function under Part IIA of the...
The Building Act 1984 ( BA 1984) authorises the Secretary of State and the Welsh Ministers to make Building Regulations for a range of purposes, including protecting the health and safety of people in or around buildings. It creates criminal liability for contraventions of those regulations and confers enforcement powers on local authorities. This Practice Note outlines guidance on the enforcement of Building Regulations. See Practice Note: Obtaining building regulations approval for guidance on when approval is required and how Building Regulations approval is secured. General power of local authorities to enforce Building Regulations and exemptions from enforcement BA 1984, s 91(2) states that enforcing the Building Regulations within their area is a function of local authorities. This is subject to situations where BA 1984, ss 91ZA or 91ZB provide that the Building Safety Regulator ( BSR) is the building control...
In banking transactions, guarantees are commonly used as collateral for debt. In that setting, they comprise a contractual arrangement under which one party (the guarantor) undertakes to be answerable for the liability of another (the principal) to a further party. They do not confer rights over property. In this sense, guarantees are characterised as quasi-security. This Practice Note considers: the key characteristics of guarantees how guarantees are used in financing transactions why lenders prefer documentation to include both a guarantee and an indemnity which obligations are commonly guaranteed in finance transactions—obligations under a specific transaction or ‘all moneys’? whose obligations are commonly guaranteed in finance transactions the use of limited guarantees the importance for lenders of understanding guarantor rights and protections This Practice Note does not deal with on demand guarantees (see Practice Note: On demand guarantees and...
What reliefs and exemptions are available? The core charge to the annual tax on enveloped dwellings ( ATED) is set out in Practice Note: ATED—the basics. A selection of ATED reliefs and exemptions is available; these are highlighted below and explored in greater detail in this Practice Note. The reliefs most frequently encountered in practice cover: property rental businesses property developers property traders financial institutions acquiring dwellings in the course of lending Additional ATED reliefs arise in defined situations and are likewise summarised below. There is also an interim relief intended to ease taxpayers’ cash flow. Interim relief operates as a process for claiming ATED reliefs, rather than constituting a relief from ATED in its own right......
Practice Note This Practice Note explains the exposure of an incoming tenant, on assignment of a lease, to historic breaches of that lease committed by its predecessor. It considers what this means for the assignee in relation to both continuing breaches and those that are once-and-for-all. For guidance on the responsibilities of an incoming landlord, on assignment of the reversion, for prior breaches of an occupational lease by its predecessor—and the position on recovering accrued rent arrears—see Practice Note: Incoming landlord’s liability for pre-existing breaches; and for a concise overview of how the benefit and burden of covenants transfer on assignment generally, see Practice Note: Quick guide to benefit and burden of covenants on assignment. The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) provides that, as a general rule, any lease granted on or after 1 January 1996...
What happens to rent deposits on a sale? How a sale contract should treat rent deposits ultimately depends on the wording of the relevant deposit deeds. Sellers ought to scrutinise those deeds early to determine whether the tenant needs to be a party to any document because, inevitably, that step takes time, sits outside the parties’ control, and the tenant will usually have less commercial drive than the seller and the buyer to move promptly. There are generally three methods for handling rent deposits: assignment novation new direct covenants between the buyer (as the new landlord) and the tenant Whichever route is selected must match the deposit deed’s framework. It is crucial that everyone follows the deed’s stipulated process; otherwise the rent deposit may have to be repaid, which creates an issue for the buyer. Sellers’ solicitors do not always confirm the exact requirements before sending out the draft...
This Practice Note examines handling an application for a licence to assign an existing commercial lease (ie as a lease management transaction). It explains when and why a tenant seeks consent to assign and the commercial motivations for both landlord and tenant. It also outlines the transaction steps and guides you through the principal legal and commercial issues. A tenant’s lease determines how far it may dispose of the premises by assigning its lease. For guidance on negotiating an assignment clause in a lease, see Practice Note: Negotiation guide—alienation clauses—commercial leases... Understanding the commercial context—background and key concerns Almost invariably, commercial leases include restrictions and conditions on a tenant assigning the lease. See ‘ Is landlord’s consent required to the assignment?’ below... Tenant—key commercial drivers and issues A tenant may submit an application to assign at any point during the lease term. The capacity to assign the lease is...
Cohabitants and other co-owners or co-occupiers of property Cohabitants and other co-owners or co-occupiers of property frequently neglect to set out the precise scope of their respective beneficial stakes in the shared home. As a consequence, significant uncertainty can arise if, for example, the relationship later ends, or a bankruptcy trustee or a creditor of one party seeks to realise that individual’s supposed portion of the property. Typical scenarios in which the parties’ beneficial interests are not adequately articulated arise where: the home stands in joint names without any express declaration of trust as regards the beneficial shares title is in only one name (again on the basis there is no declaration of trust saying it is held on trust for that person and the cohabitant/co‑occupier and specifying their respective proportions) This Practice Note addresses the second of those...
Arms length management organisations ( ALMOs) This Practice Note sets out the role of ALMOs in the sphere of local authority social housing provision. Although they can look like registered providers ( RPs), they are in fact wholly owned by their respective local housing authorities ( LHAs), created to manage services on the authority’s behalf. The Note considers a range of issues, including: Tenant involvement in the organisational structure Transfers of staff to ALMOs under the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 The preservation of all tenants’ statutory rights, as the landlord function remains with the local authority How ALMOs relate to tenant management organisations ( TMOs) The constitutional make-up of ALMOs An ALMO is a not-for-profit company delivering housing services for an LHA. Commonly, an LHA establishes an ALMO to manage and improve all or part of its stock, while...
The presence of a town or village green ( TVG) can curtail, or even halt, development. Interfering with, or disturbing, the use or enjoyment of a TVG is a criminal offence. Accordingly, applying to register a TVG is a powerful tool for anyone seeking to stop a development. TVGs may, or may not, be subject to rights of common. They are areas of open land used by inhabitants of the town, village or parish for lawful sports and pastimes. There is no legal distinction between town greens and village greens; the terminology simply depends on location. See also Practice Notes: Town and village greens—making an application to register a TVG, Town and village greens—registration, rectification, correction and deregistration, and Town or village greens—property development. Legislative context The Commons Registration Act 1965 ( CRA 1965) introduced a new requirement to create a permanent,...
This Practice Note examines overriding interests under the Land Registration Act 2002 ( LRA 2002). It provides detailed analysis of actual occupation as an overriding interest and signposts additional relevant material that offers comprehensive information on other overriding interests. It also addresses interests that have lost overriding status since the LRA 2002 came into effect. Overriding interests under the Land Registration Act 2002 Overriding interests generally Overriding interests are unregistered rights that nonetheless affect registered land, despite not appearing on the register. They bind the registered proprietor and any person who later acquires an interest in the property. Such interests fall into two classes: those that take effect on first registration of land; set out in LRA 2002, Sch 1 those that override a registered disposition; set out in LRA 2002, Sch 3 Both classes of overriding interest include the types of interest outlined...
This Practice Note considers the taking of security over contractual rights in broad terms and at a high level. It covers: commonly used techniques for creating security over rights arising under contracts principal provisions to review in the agreement to be assigned, including governing law, restrictions on assignment and contractual set-off rights essential terms to be included within the security instrument practical points relating to serving notice of the security on the counterparty to the contract perfection and priority considerations and related matters Further detail on assignments by way of security, including how statutory and equitable assignments differ and why notice is served, appears in Practice Note: Assignments by way of security. What are contractual rights and when is security taken over them? What is meant by contractual rights? In essence, rights under contracts are intangible assets rather than tangible...
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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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