Legal Q&A

This Q& A assumes that the contractual termination date of the lease has passed. Where the contractual term has already ended, a landlord seeking to terminate a tenancy proceeds under section 29(2) of the Landlord and Tenant Act 1954 ( LTA 1954), issuing the matter as a CPR Part 7 claim. For overarching guidance, see Practice Note: LTA 1954 business lease renewal—proceedings (under ‘ Opposed application—procedure’). A defendant to a Part 7 claim who wishes to discontinue their defence should, as a sensible course, engage with the landlord to agree terms and file a consent order providing for the proceedings to be dismissed on a specified date......

At the heart of the query lies the status of a party who does not adhere to a court direction, yet has lodged an application to extend the time for compliance before the expiry of the deadline attached to that direction. On the scenario set out, the claimant will be in breach of the court order concerning the exchange of witness statements in two weeks’ time, because that order will not have been varied before the deadline for compliance under that order......

Easements—generally An easement is an intangible right enjoyed by the holder of a legal estate (dominant tenement) over land owned by another person (servient tenement), and it binds successors in title also. Easements are commonly positive, granting the dominant proprietor permission to go onto or use the servient land in some manner (e.g. a right of way). They may, however, be negative, as such restraining activities on the servient land and thereby conferring upon the dominant owner a right to receive something from that land (e.g. a right to light)......

When A and B make a covenant regulating the use of B’s freehold land (presently owned by B or to be conveyed to B) for the benefit of land kept or held by A, it is, as a contractual promise, immediately enforceable. If, however, either A or B disposes of the interest in their respective parcels, the covenant is enforceable only where the equitable rules governing the enforceability of freehold covenants are fulfilled. Where A, being the original covenantee, has transferred the interest in the benefitted land to C, C may enforce the covenant solely if it is demonstrable that the covenant benefits that land and that the benefit has passed by assignment. The latter element will, in most cases, arise automatically by virtue of section 78 of the Law of Property Act 1925 ( LPA 1925), as provided under that statute in...

As regards the requirement to serve, the controlling rule is CPR 55.10...

In England and Wales, the courts possess jurisdiction over divorce and judicial separation proceedings pursuant to Council Regulation EC 2201/2003 (often referred to as Brussels II bis)......

Joint ownership and severance Whether the pair are married or merely cohabiting is not stated; what is clear is that the house is their home and that title is held jointly. It is possible that, on transfer, an express declaration of trust was included to the effect that they were to hold upon trust for themselves as beneficial joint tenants or, in the alternative, as tenants in common in agreed shares which need not be equal. If an express declaration of trust exists, it would be conclusive of the extent of their interests. Should it provide that they are to hold as beneficial joint tenants, that would mean neither owns a divided portion of the property; but if the joint tenancy were to be severed, they would, from that point, hold as tenants in common in equal shares. Section 36 of the Law of...

Adverse possession When a person has exercised factual control over land owned by someone else for a defined period, intends to possess it, and does so without the landowner’s consent, he may have grounds to seek to be registered formally as the owner of that land on the register as such owner. This situation is described as adverse possession (also labelled ‘squatter’s rights’) and, from 13 October 2003, has been regulated by the Land Registration Act 2002 ( LRA 2002). Before the LRA 2002 came into force, the doctrine operated under the common law, with the leading modern authority being the decision in J A Pye ( Oxford) Ltd v Graham......

A mortgage by demise A mortgage by demise is an uncommon variety of mortgage whereby the borrower demises the property to the lender as security for a loan of money. Its arrangement is comparable to a lease, but for an exceptionally long duration (typically 3000 years). The mortgage will contain provisions for redemption. In the ordinary course, upon settlement of the principal amount and the interest, the mortgage will determine and the demised term thereby comes to an end......

The Academies Act 2010 ( Ac A 2010) The Academies Act 2010 ( Ac A 2010) and regulations made under it authorise and set out provisions for the transfer of land from the local authority to the Academy Trust. Although Schedule 1 to the Ac A 2010 permits an absolute transfer, guidance issued by the Department for Education in its Land Transfer Advice ( April 2013) indicates that, in the overwhelming majority of instances, the transfer should ordinarily proceed by means of a 125-year lease to the Academy Trust, thereby safeguarding public land......

Tithes Tithes represent a tenth share of all produce—praedial, personal, and mixed—owed to God and, by extension, to the ministers of His church for their support and maintenance. They fall due annually on everything that, with husbandry, yields increase through the act of God, even if that increase is not realised in each year, the obligation nonetheless arising from such productive potential... Tithe rentcharges The difficulty of gathering tithe in kind, coupled with the variable income it produced, prompted early moves to compound tithes: voluntary arrangements termed ‘moduses’ or compositions real, and those established by local or general statutes referred to as ‘corn rents’ or tithe rentcharges. Then, in 1836, a formal process was set out for commuting all tithes into tithe rentcharges, whether achieved by agreement or enforced by compulsion; in practice, almost all tithes have subsequently been so commuted......

This Q& A concerns a contract for land and vehicles―a mixed contract. Not every land transaction must follow a public procurement process publicised in the Official Journal of the European Union. Whether such a procedure is needed depends on the character of the arrangement and the contracting authority’s involvement, though land can still comprise a procurable component within a contract. The Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, do not apply where a contract contains inseparable mixed elements and the procurable aspects are not the contract’s principal object. The key point here is to determine whether the dominant element is the vehicles or the land. Under PCR 2015, SI 2015/102, reg 4(2), there are provisions guiding a contracting authority when dealing with a contract that includes some, but not exclusively, procurable elements......

A periodic tenancy may qualify as a business tenancy for the purposes of the Landlord and Tenant Act 1954 ( LTA 1954), conferring security of tenure on tenants. This sets periodic tenancies apart from other arrangements, such as a tenancy at will, a service tenancy, or a short-term business tenancy within LTA 1954, s 43(3), which cannot obtain any protected tenancy status under LTA 1954......

A liquidator of a company has broad power under section 178 of the Insolvency Act 1986 to disclaim any ‘onerous property’ Under section 178 of the Insolvency Act 1986, a company’s liquidator possesses extensive authority to renounce any ‘onerous property’......

Net settling a share award Net settling a share award is employed to cut down the quantity of shares a company is required to issue in order to discharge the award. Awards can, in principle, be net settled against both any exercise price due and any tax or National Insurance contributions ( NICs) that arise. Key benefits of net settlement include reduced dilution for existing shareholders and the possibility for a company to stretch its headroom under any relevant dilution limits, thereby enabling those limits to accommodate more awards. Net settlement for tax and NICs means the company issues to the award holder a number of shares whose value equals the post‑tax amount they would have retained had they taken the full, gross allocation and sold sufficient shares on‑market to meet the pay as you earn ( PAYE) and NICs...

We proceed on the basis that the company is UK-resident and that the dividend is not being made between companies within the same group for tax purposes. When analysing the tax consequences for the distributing company, the initial enquiry is to determine whether the transaction sits within the statutory rules on loan relationships or, alternatively, within the corporation tax provisions dealing with chargeable gains. In the ordinary course, a loan note held by a company is regarded, for tax purposes, as a loan relationship, and is treated in line with that classification......

If there is a share purchase, the employer’s identity remains the same and, if the incoming owner wishes to have a key employee or the MD enter into a fresh long-term agreement, this will need to be negotiated between the parties. For further details on employment issues in share purchases, see Practice Notes: Share purchases—employment issues acting for the buyer Share purchases—employment issues acting for the seller Where an asset purchase falls within the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, then—subject to an employee’s right to object to the transfer (see Practice Note: Employee transfer— Employee right to object to the transfer)—the employment contracts of those employed by the transferor and assigned to the organised grouping of resources or employees that is the subject of the relevant transfer, and which would otherwise be ended by the...

It can sometimes occur that an employee has more than one employer, and their contract of employment expressly confirms this. Joint employment should be distinguished from arrangements like secondments, where the sole employer lends their employee’s services to a third party, or from sole employment where the contract terms permit the employer to direct an employee’s work to a third party. A joint employment contract should plainly set out the basis on which each joint employer exercises control over the employee, and may provide for an indemnity between the joint employers in the event of an employment tribunal claim......

Can the administrator sublet the property to the purchaser? An administrator may do whatever is necessary or expedient to manage the company’s affairs, business and property (paragraph 59(1) of Schedule B1 to the Insolvency Act 1986 ( IA 1986)), which also encompasses the powers set out in IA 1986, Sch 1. In respect of subletting, IA 1986, Sch 1, para 17 confirms that an administrator has the power to grant or accept the surrender of a lease or tenancy of any company property, and to take a lease or tenancy of any property required or convenient for the company’s business. For further detail, see Practice Note: Roles, powers, functions and duties of an administrator, particularly the section ‘ The administrator’s powers’......

When one company advances funds to another, the contractual provisions govern any restriction on repaying the loan before the ten-year period first contemplated. Should the lending company enter liquidation or administration, that circumstance, by itself, does not alter the contract’s terms. The office-holding insolvency practitioner should nevertheless review the agreement to determine whether it permits earlier repayment, or repayment on alternative terms, if the lending company goes into liquidation or administration. Although that may appear improbable, it remains possible, and the officeholder ought to explore every avenue to secure accelerated repayment of the borrowing. Absent an express clause to the contrary, the insolvency of the lender does not, of itself, accelerate the debt, and timing remains governed by the bargain. It would seem that the office-holding insolvency practitioner holds an appointment that must remain open for at least ten years before the loan can be...