Commercial Property Law

Books

Alan Moran

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    Preface

    This book aims to provide an introduction to commercial property which is accessible to the reader who has not studied the subject before. After some years doing commercial property work in practice, I have taught commercial property for many years but there has never been a suitable course book available. Inevitably, the plan of the book closely mirrors the course I teach which is an undergraduate option for LLB students. I hope, however, that those taking LPC and BVC courses may find the book helpful, as well as those non-lawyers taking such courses as land management and surveying. It may also be of use to the younger (perhaps) lawyer in practice who finds himself or herself required to get involved in commercial property work – which is how I got into this field.

    Much legal work involves dealing with matters of business, and so all solicitors in practice should have some knowledge of business tenancies. The market for commercial property plays such an important role in the nation's economy that to have no awareness of this subject is to be at a disadvantage in serving the interests of clients. The book tries to strike the right balance between laying out the legal background and seeing the subject in its practical context.

    There have been many developments in commercial property law and practice in recent years and in the last two years especially. Changes of the utmost importance have been wrought by, for instance, the Land Registration Act 2002 and the reforms to the Landlord and Tenant Act 1954 Part II. Case law likewise has made some significant strides in very recent years: the number of cases cited in this book from 2005 and 2006 bears this out.

    It is usual in a Preface to extend thanks to those who have helped in the production of the book. My first thanks must go to Peter Luxton and Margaret Wilkie; without their generous and unstinting help as colleagues and friends over the years, I would never have been equipped to teach this subject or to think of writing this book. My debt to them cannot be repaid. My thanks go also to the publishers who have given prompt and unstinting help throughout the writing of the book. I would also like to thank those of my students who have read some draft chapters and given me feedback as to how it seemed from the consumer's point of view: I mention in particular Mark Reading, Caitlin Stickler and Asad Arif whose comments in particular were very useful. I have not managed to include all their suggestions – perhaps next time.

    I have tried to state the law as at 24 June 2006 (a quarter day, and so a day on which many rent payments must have been made!).

    Alan Moran.

    Table of Cases

    • 3M United Kingdom plc v Linklaters & Paines [2006] EWCA Civ 530 10, 138–9, 142
    • Abbey National Building Society v Maybeech Ltd [1985] Ch 190 152
    • Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513 160
    • Akici v LR Butlin Ltd [2005] EWCA Civ 1296 40, 121, 148
    • Aldin v Latimer Clarke, Muirhead & Co [1894] 2 Ch 437 41
    • Allied Dunbar Assurance plc v Homebase Ltd [2002] 2 EGLR 23 4, 117, 126
    • Amherst v James Walker (Goldsmith and Silversmith) Ltd [1983] 2 All ER 1067 73
    • Anglia Building Society v Sheffield City Council [1983] 1 EGLR 57 83
    • Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716 107, 110, 111–12
    • Artemiou v Procopiou [1966] 1 QB 878 157
    • Ashburn Anstalt v Arnold [1988] 2 All ER 147 26, 36, 40, 41, 65
    • Ashworth Frazer Ltd v Gloucester City Council [2002] 1 All ER 377; [2001] UKHL 59 18, 124, 126
    • Asian v Murphy [1990] 1 WLR 766 39
    • Aspinall Finance Ltd v Viscount Chelsea [1989] 1 EGLR 103 157
    • Atwal v Courts Garages [1989] 1 EGLR 63 90
    • Australian Mutual Provident Society v National Mutual Life Association of Australia Ltd [1995] 1 NZLR 581 69
    • Avonridge Property Co Ltd v Mashru [2004] EWCA Civ 1306 57
    • Babar v Anis [2005] EWHC 1384 35
    • Bacchiocchi v Academic Agency Ltd [1998] 2 All ER 241 157, 176
    • Balls Brothers Ltd v Sinclair [1931] 2 Ch 325 101
    • Barclays Bank plc v Saville Estates Ltd [2002] EWCA Civ 589 73
    • Barclays Bank v Daejan Investments (Grove Hall) Ltd [1995] 1 EGLR 68 83
    • Barrett v Morgan [2000] 1 All ER 481 137, 138
    • Barth v Pritchard [1990] 1 EGLR 109 174
    • Basildon Development Corporation v Mactro Ltd [1986] 1 EGLR 137 89
    • Basingstoke and Dean BC v Hose Group Ltd [1988] 1 WLR 348 78
    • Bass Holdings Ltd v Morton Music Ltd [1987] 1 EGLR 214 142
    • Baxall Securities Ltd v Sheard Walshaw Partnership [2002] EWCA Civ 9 105
    • Beegas Nominees Ltd v Decco Ltd [2003] 3 EGLR 25 80
    • Betty's Cafes Ltd v Phillips Furnishing Stores Ltd [1959] AC 20 173
    • BHP Petroleum Great Britain Ltd v Chesterfield Properties Ltd [2002] 2 EGLR 121, CA; [2001] 2 EGLR 11 57, 60–1
    • Bickel v Duke of Westminster [1976] 3 All ER 801 122, 124
    • Bickmore v Dimmer [1903] Ch 158 97–8, 102
    • Billson v Residential Apartments Ltd [1992] 1 All ER 141 147, 150
    • Botterill v Bedfordshire CC [1985] 1 EGLR 82 174
    • BP International Ltd v Newcastle International Airport Ltd Newcastle County Court 18 January 2005 173
    • Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 All ER 587 106, 110
    • British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137 115
    • British Gas Corp v Universities Superannuation Scheme Ltd [1986] 1 All ER 978 67
    • British Glass Manufacturers' Confederation v University of Sheffield [2004] 1 EGLR 40; [2003] EWHC 3108 81, 107
    • Bromley Park Garden Estates Ltd v Moss [1982] 2 All ER 890 127, 129
    • Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 34, 39, 40
    • C & A Pensions Trustees Ltd v British Vita Investments Ltd [1984] 2 EGLR 75 77
    • C A Webber (Transport) Ltd v Network Rail Infrastructure Ltd [2003] EWCA Civ 1167 165
    • Calabar Properties Ltd v Stitcher [1984] 1 WLR 287 114
    • Calabar (Woolwich) Ltd v Tesco Stores Ltd [1978] 1 EGLR 113 90
    • Cambridge Water Co v Eastern Counties Leather Ltd [1994] 2 AC 264 18
    • Canary Wharf v Telegraph Group Ltd [2003] EWHC 1575 79
    • Catlin Estates Ltd v Carter Jonas [2005] EWHC 2315, TCC 105
    • Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 1048 149
    • Centrovincial Estates plc v Bulk Storage Ltd [1983] P & CR 393 51, 52
    • Chancebutton Ltd v Compass Services UK & Ireland Ltd [2005] 1 P & CR 8 79
    • Chartered Trust plc v Davies [1997] 2 EGLR 83 28, 144
    • Chelsea Yacht and Boat Club Ltd v Pope [2001] 2 All ER 409 35
    • City of London Corporation v Fell [1994] 1 AC 458; [1993] 4 All ER 968 25, 47, 48
    • Clear Channel UK Ltd v Manchester City Council [2004] EWHC 2873 37, 38–9, 40
    • Clinicare Ltd v Orchard Homes & Developments Ltd [2004] EWHC 1694 QB 105
    • Clore v Theatrical Properties Ltd and Westby & Co Ltd [1936] 3 All ER 483 36, 41
    • Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] 3 All ER 297 91
    • Cobbe v Yeomans Row Management Ltd [2005] EWHC 266 32
    • Comber v Fleet Electronics Ltd [1955] 1 WLR 566 83
    • Commercial Union Life Assurance Co Ltd v Label Ink Ltd [2001] L & TR 29 107
    • Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501 67
    • Coronation Street Industrial Properties Ltd v Ingall Industries [1989] 1 WLR 304 55
    • Cragov Julian [1992] 1 WLR 372 31, 119
    • Credit Suisse v Beegas Nominees Ltd [1994] 1 EGLR 76 111–12, 113, 114
    • Crestfort Ltd v Tesco Stores Ltd [2005] EWHC 805 117, 118, 121
    • Crown Estate Commissioners v Signet Group plc [1996] 2 EGLR 200 127–8, 129
    • Cunliffe v Goodman [1950] 2 KB 237 173
    • D & F Estates Ltd v Church Commissioners for England [1989] AC 177 22
    • Debenhams Retail plc v Sun Alliance & London Assurance Co Ltd [2005] EWCA Civ 868 70
    • Design Progression Ltd v Thurloe Properties Ltd [2004] EWHC 324 123
    • Dogan v Semali Investments Ltd [2005] EWCA Civ 1036 173
    • Dolgellau Golf Club v Hett [1998] 2 EGLR 75 174
    • Dong Bang Minerva (UK) Ltd v Davina Ltd [1995] 1 EGLR 41 123
    • Dresden Estates v Collinson [1987] 1 EGLR 45 35, 37, 38, 40
    • Duncliffe v Caerfelin Properties Ltd [1989] 2 EGLR 38 53
    • Earl Cadogan v Escada AG [2006] 05 EG 272, CS 79–80
    • Earl of Cadogan v 27/29 Sloane Gardens Ltd [2006] 24 EG 178 131
    • Edlington Properties Ltd v JH Fenner and Co Ltd [2005] EWHC 2158 67, 115
    • Edwardes v Barrington (1901) 85 LT 650 36
    • Egerton v Esplanade Hotels London Ltd [1947] 2 All ER 88 148
    • Elite Investments Ltd v Tl Bainbridge Silencers Ltd [1986] 2 EGLR 43 109
    • Elmcroft Developments Ltd v Tankersley-Sawyer [1984] 270 EG 140 106
    • Errington v Errington [1952] 1 All ER 149 36
    • Esselte AB v Pearl Assurance plc [1997] 2 All ER 41 137, 156–7
    • Esso Petroleum Co Ltd v Fumegrange Ltd [1994] 2 EGLR 90 37, 38, 40
    • Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340 148, 150
    • Eyre v McCracken (2000) 80 P & CR 220 108–9
    • Felber Jucker & Co Ltd v Sabreleague (2005) Estates Gazette 19 November 175
    • First Penthouse Ltd v Channel Hotels & Properties (UK) Ltd [2004] 1 EGLR 16; [2003] EWHC 2713 56–7, 59
    • First Property Growth Partnership LP v Royal 8i Sun Alliance Property Services Ltd [2002] EWCA Civ 1687 73
    • Fitzroy House Epworth Street (No 1) Ltd v The Financial Times Ltd [2006] 19 EG 174; [2005] EWCA Civ 329 142
    • Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001] 2 EGLR 103 106
    • Footwear Corporation Ltd v Amplight Ltd [1998] 2 EGLR 38 126, 127, 128
    • Fox & Widley v Guram [1998] 3 EG 142 72
    • FR Evans (Leeds) Ltd v English Electric Co Ltd (1978) P&CR 185 76
    • Frederick Berry Ltd v Royal Bank of Scotland [1949] 1 KB 619 95
    • Friends Provident Life Office v British Railways Board [1996] 1 All ER 336 52, 64
    • Fuller v Judy Properties Ltd [1992] 1 EGLR 75 151
    • FW Woolworth & Co Ltd v Lambert [1937] Ch 37 101–2, 122
    • FW Woolworth plc v Charlwood Alliance Properties Ltd [1987] 1 EGLR 53 91, 125
    • Garston v Scottish Widows Fund [1998] 3 All ER 596 139
    • Gibson Investments Ltd v Chesterton plc [2002] EWHC 19 109
    • Go West Ltd v Spigarolo [2003] 2 WLR 986 125
    • Graysim Holdings Ltd v P & O Property Holdings Ltd [1995] 4 All ER 831 158–9, 160
    • Greenwich LBC v Discreet Selling Estates Ltd [1990] 2 EGLR 65 150
    • Haines v Florensa [1990] 1 EGLR 73 44, 95
    • Halliard Property Co Ltd v Nicholas Clarke Investments Ltd (1983) 269 EG 1257 108, 110
    • Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 115
    • Hampstead & Suburban Properties Ltd v Diomedous [1968] 3 All ER 545 46
    • Hawkesbrook Leisure Ltd v Reece-Jones Partnership [2003] EWHC 3333 160
    • Hazel v Akhtar [2001] EWCA Civ 1883 172
    • Heard v Stuart (1907) 24 TLR 104 45, 46, 96
    • Hemingway Realty Ltd v Clothworkers' Company [2005] EWHC 299 69
    • Henry Smith's Charity Trustees v AWADA Trading and Promotion Services Ltd [1984] 1 EGLR 116 72
    • Hill v Harris [1965] 2 QB 601; 2 All ER 358 12, 82
    • Hillil Property and Investment Co Ltd v Naraine Pharmacy Ltd (1979) 39 P & CR 67 160
    • Hills (Patents) Ltd v University College Hospital Board of Governors [1956] 1 QB 90 160
    • Historic Hotels Ltd v Cadogan Estates [1995] 1 EGLR 117 78
    • Holding & Barnes plc v Hill House Hammond Ltd (No 1) [2002] 2 P & CR 11 6, 113
    • Hua Chiao Commercial Bank Ltd v Chiaphua Industries Ltd [1987] AC 99, PC 50
    • Hussain v Lancaster City Council [1999] 4 All ER 125 87
    • Hussein v Mehlman [1992] 2 EGLR 87 24, 115, 143
    • I & H Caplan Ltd v Caplan [1963] 2 All ER 930 157
    • Ibrahim v Dovecorn Reversions [2001] 2 EGLR 46 113
    • Inntrepreneur Estates v Mason [1993] 2 CMLR 293 86
    • International Drilling Fluids v Louisville Investments (Uxbridge) Ltd [1986] 1 All ER 321 100, 122, 127
    • Interoven Stove Co Ltd v Hibbard [1936] 1 All ER 263 37
    • Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 6
    • Iperion Investments Corporation v Broadwalk House Residents [1992] 2 EGLR 235 149
    • Iqbal v Thakrar [2004] 3 EGLR 21 99
    • Ivory Grove Ltd v Global Grange Ltd [2003] 26 EG 179, CS; [2003] EWHC 1409, Ch 174
    • James v Hutton & J Cook & Sons Ltd [1950] 1 KB 9 103
    • Janet Reger International Ltd v Tiree Ltd [2006] EWHC 1743 112, 114, 115
    • Javad v Aqil [1991] 1 All ER 243 30
    • John Lewis Properties plc v Viscount Chelsea [1993] 2 EGLR 77 149, 150
    • Johnsey Estates Ltd v Webb [1990] 1 EGLR 80 55
    • Joseph v London County Council [1914] 111 LT 276 98
    • JT Sydenham & Co Ltd v Enichem Elastomers Ltd [1989] 1 EGLR 257 83
    • Kalford Ltd v Peterborough City Council [2001] EGCS 42 99
    • Kay v London Borough of Lambeth [2006] UKHL 10 39–40
    • Keydon Estates Ltd v Eversheds LLP [2005] EWHC 972; [2005] 21 EGCS 139 12, 22, 120
    • Killick v Second Covent Garden Property Co Ltd [1973] 2 All ER 337 124, 127
    • Kilmartin SCI (Hulton House) v Safeway Stores [2006] EWHC 60 135
    • King v David Allen & Sons Billposting Ltd [1916] 2 AC 54 36
    • Kumar v Dunning [1987] 2 All ER 801 55
    • L Schuler AG v Wickman Machine Tool Sales Ltd [1973] 2 All ER 39 5
    • Lace v Chantler [1944] 1 All ER 305 26
    • Ladbroke Hotels Ltd v Sandhu [1996] 72 P & CR 498 107
    • Laiqat v Majid [2005] EWHC 1305, QB; [2005] 26 EG 130, CS 95
    • Lam Kee Ying Sdn Bhd v Lam Shes Tong (t/a Liam Joo Co) [1975] AC 247 121
    • Lambert v FW Woolworth & Co Ltd [1938] Ch 883 99, 102
    • Law Land Co Ltd v Consumers' Association Ltd [1980] 2 EGLR 109 77
    • Lee-Verhulst (Investments) Ltd v Harwood Trust [1973] QB 204; [1972]3 All ER619 159, 160
    • Legal and General Assurance Society Ltd v Expeditors International (UK) Ltd [2006] 18 EG 151 142
    • Lemmerbell Ltd v Britannia LAS Direct Ltd [1998] 3 EGLR 67 141
    • Lewis v Weldcrest Ltd [1978] 3 All ER 1226 160
    • Lilley & Skinner v Crump [1929] 73 SJ 366 98
    • Lister v Lane and Nesham [1893] 2 QB 212 106, 108
    • Littman v Aspen Oil (Broking) Ltd [2005] EWCA Civ 1579 6, 7
    • Lloyd v Dugdale [2002] 2 P & CR 167 36, 41
    • London & Argyll Developments Ltd v Mount Cook Land Ltd [2002] 50 EG 111 125
    • London Borough of Southwark v Tanner [2001] 1 AC 1 87
    • London County Council v Hutter [1925] Ch 626 96–7, 98
    • London Diocesan Fund v Phithwa [2005] UKHL 70 57, 61, 65
    • Lurcott v Wakely and Wheeler [1911] 1 KB 905 106, 107, 108, 110, 111–12
    • Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044 41
    • Mancetter Developments Ltd v Garmonson Ltd [1986] QB 1212 97
    • Manchester Airport plc v Dutton [1999] 3 WLR 524 40
    • Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352 140–1, 142
    • Marazzi v Global Grange Ltd [2003] 34 EG 59; [2002] EWHC 3010 (Ch) 174
    • Mason v TotalFinaElf [2003] EWHC 1604 110, 112, 114
    • Max Factor Limited v Wesleyan Assurance Society [1996] 74 P & CR 8 139
    • McDougall v Easington District Council [1989] 1 EGLR 93 106, 108, 110
    • Mean Fidler Holdings Ltd v Islington London Borough Council [2003] EWCA Civ 160 121
    • Mecca Leisure Ltd v Renown Investments (Holdings) Ltd [1984] 1 EGLR 137 72
    • Methodist Secondary Schools Trust Deed Trustees v O'Leary [1993] 1 EGLR 105 159
    • Midland Bank plc v Chart Enterprises [1990] 2 EGLR 59 123
    • Midland Bank Trust Co Ltd v Green [1981] AC 513 56, 117–18
    • Monella v Pizza Express (Restaurants) Ltd [2003] EWHC 2966 73
    • Morcom v Campbell-Johnson [1956] 1 QB 106 108
    • Morrison Holdings Ltd v Manders Property (Wolverhampton) Ltd [1976] 2 All ER 205 157
    • Moss Bros Group plc v CSC Properties Ltd [1999] EGCS 47 128–9
    • Moule v Garrett [1871] LR 7 Exch 101 54, 55
    • Mount Cook Land Ltd v Joint London Holdings Ltd [2005] EWCA Civ 1171 89
    • Mount Eden Land Ltd v Folia Ltd [2003] All ER (D) 374 123
    • Mount Eden Land Ltd v Towerstone Ltd [2002] EWHC 2545 125
    • Murphy v Brentwood District Council [1991] 1 AC 398 106
    • Muscat v Smith [2003] 1 WLR 85 53, 115
    • National Car Parks Ltd v Trinity Development Co (Banbury) Ltd [2001] EWCA Civ 1686 38, 40
    • National Car Parks v The Paternoster Consortium Ltd [1990] 2 EGLR 99 176
    • National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 24
    • NCR Ltd v Riverland Portfolio No 1 Ltd (No 2) [2005] EWCA Civ 312 123, 126, 128
    • NCR Ltd v Riverland Portfolio No 1 Ltd [2004] EWHC 921 126
    • Norwich Union Life Insurance Society v British Railways Board [1987] 2 EGLR 137 111
    • Nynehead Developments Ltd v RH Fibreboard Containers Ltd [1999] 1 EGLR 7 115, 144
    • Old English Inns plc v Brightside Ltd (2004) The Times, 30 June 125
    • Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2) [1979] 1 WLR 1397 117, 148
    • Olympia & York Canary Wharf Ltd v Oil Property Investments Ltd [1994] 2 EGLR 48 129, 139
    • O'May v City of London Real Property Co Ltd [1983] 2 AC 726; [1982] All ER 660 131, 177
    • Orlando Investments Ltd v Grosvenor Estate Belgravia (1990) 59 P & CR 21 126–7
    • Owen v Gadd [1956] 2 QB 99 95–6
    • P & A Swift Investments v Combined English Stores Group plc [1988] 2 All ER 885 55
    • Pakwood Transport Ltd v 15 Beauchamp Place Ltd [1977] 36 P &CR 112 150
    • Pankhania v Hackney London Borough Council [2004] 1 EGLR 135 34
    • Parkes v Westminster Roman Catholic Diocese Trustee [1978] 36 P & CR 22 175
    • Passmore v Morland plc [1998] 4 All ER 468 86
    • Penton v Barnett [1898] 1 QB 276 150
    • Plinth Property Investments Ltd v Mott Hay & Anderson [1979] EGLR 17 77
    • Pointon York Group plc v Poulton [2006] EWCA Civ 1001 37, 160
    • Ponderosa International Development Inc v Pengap Securities (Bristol) [1986] 1 EGLR 66 126
    • Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055 106, 111, 112
    • Premier Confectionery (London) Co Ltd v London Commercial Sale Rooms Ltd [1933] Ch 904 127
    • Proctor & Gamble Technical Centres Ltd v Brixton plc [2002] EWHC 2835 141
    • Proudfoot v Hart [1890] 25 QB 42 106, 107, 110, 112
    • Prudential Assurance Co Ltd v London Residuary Body [1992] 3 All ER 504 25, 26
    • Prudential Assurance Co Ltd v McBains Cooper (No 2) WL 1421232 105
    • Prudential Assurance Co Ltd v Mount Eden Land Ltd [1997] 1 EGLR 37 100–1
    • Pumperninks of Piccadilly Ltd v Land Securities plc [2003] 1 P & CR 14 174
    • PW & Co v Milton Gate Investments Ltd [2004] Ch 142 39
    • Quick v Taff-Ely Borough Council [1985] 3 All ER 321 111, 112
    • R (on the application of National Grid Gas plc) v Environment Agency [2006] EWHC 1083 19
    • R (on the application of the Lord Chancellor) v Chief Land Registrar [2005] EWHC (Admin) 1706 5
    • Rainbow Estates Ltd v Tokenhold Ltd [1988] 2 All ER 860 114
    • Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1979] 1 All ER929 106, 108, 109, 111
    • Re Cooper's Lease [1968] 19 P & CR 541 129
    • Re Greater London Properties' Leases [1959] 1 WLR 503 126
    • Reed Personnel Services plc v American Express Ltd [1997] 1 EGLR 229 142
    • Riverside Housing Association Ltd v White [2005] EWCA Civ 1385 74
    • Riverside Property Investments Ltd v Blackhawk Automotive [2005] 1 EGLR 114 107
    • Ropemaker Properties Ltd v Noonhaven Ltd [1989] 2 EGLR 50 148, 151
    • Safeway Food Stores Ltd v Banderway Ltd (1983) 267 EG 850 74
    • Sainsbury Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 10
    • Sandhu Menswear Co Ltd v Woolworths plc [2006] EWHC 1299 159
    • Sargeant v Macepark (Whittlebury) Ltd [2004] 3 EGLR 26 100, 102
    • Sawa v Houssein (1977) 73 P & CR 150 148
    • Say v Smith [1563] 1 Plowd 269 26
    • Scala House & District Property Co Ltd v Forbes [1974] QB 575 148
    • Scholl Manufacturing Co Ltd v Clifton (Slim-Line) Ltd [1966] 3 All ER 16 169
    • Scottish & Newcastle plc v Raguz [2006] EWHC 821 51, 54, 64, 146–7
    • Secretary of State for the Environment v Possfund (North West) Ltd [1997] 2 EGLR 56 136
    • Segal Securities Ltd v Thoseby [1963] 1 QB 887 149
    • Selous Street Properties Ltd v Oronel Fabrics [1984] 1 EGLR 50 52
    • Shell-Mex v Manchester Garages [1971] 1 WLR 612 37
    • Simmons v Dresden [2004] EWHC 993 110
    • Smith v Titanite [2005] 20 EG 262 159
    • Speedwell Estates Ltd v Dalziel [2002] 02 EG 104 141
    • Spencer's Case [1583] 5 Co Rep 16a 50, 51, 53
    • St Marylebone Property Co Ltd v Tesco Stores [1988] 2 EGLR 40 89
    • Starmark Enterprises Ltd v CPL Distribution Ltd [2001] EWCA Civ 1252 72–3
    • Stewart v Scottish Widows and Life Assurance Society plc (QBD, 22 June 2005) 38
    • Street v Mountford [1985] AC 809; 2 All ER 289 34, 36, 38, 41, 65
    • Swainland Builders Ltd v Freehold Properties Ltd [2002] EWCA Civ 560 6
    • System Floors Ltd v Ruralpride Ltd [1995] 1 EGLR 48 139
    • Taylor v Vectapike Ltd [1990] 2 EGLR 12 95
    • Telegraph Properties (Securities) Ltd v Courtaulds (1981) 257 EG 51, CA 73
    • Thomas v Sorrell (1673) Vaugh 330 35
    • Tilfen Land Ltd v London Logistics Ltd [2005] EWHC 1456 6
    • Trafford MBC v Total Fitness (UK) Ltd [2003] 2 P & CR 8 141
    • Transworld Land Co Ltd v J Sainsbury plc [1990] 2 EGLR 255 91
    • Trustees of Grantham Christian Fellowship v The Scouts Association Trust Corporation [2005] EWHC 209 40
    • Turner v Wandsworth Borough Council [1994] 1 EGLR 134 174
    • United Scientific Holdings Ltd v Burnley Borough Council [1977] 2 All ER 62 71, 140
    • Venetian Glass Gallery Ltd v Next Properties Ltd [1989] 2 EGLR 42 126
    • Walsh v Lonsdale (1882) 21 ChD 9 9, 32
    • Wandsworth London Borough v Singh [1991] 2 EGLR 75 157, 160
    • Webb v Sandown Sports Club Ltd [2000] EGCS 13 157
    • Wells v Kingston-upon-Hull Corporation (1875) LR 10 CP 402 37
    • Welsh v Greenwich London Borough Council [2000] 3 EGLR 41 5, 111–12
    • Wessex Reserve Forces & Cadets Association v White [2005] EWHC 983 174
    • Westminster City Council v Clarke [1992] 2 AC 288 40
    • Westminster City Council v HSBC Bank plc [2003] 1 EGLR 62 5, 6, 98, 102
    • Whelton Sinclair v Hyland [1992] 41 EG 112, CA 7
    • Whiteminster Estates v Hodges Menswear Ltd [1974] 232 EG 715 127
    • Williams v Kiley (t/a CK Supermarkets Ltd) [2002] EWCA Civ 1645 46, 86, 90
    • Wilson v Flynn [1948] 2 All ER 40 124
    • Yaxley v Gotts [2000] Ch 162 32
    • York v Casey [1998] 2 EGLR 25 141
    • Yorkshire Metropolitan Properties Ltd v Co-operative Retail Services Ltd [1997] EGCS 57 120–1, 150
    • Zafiris v Liu [2005] All ER (D) 261 175
    • Zarvos v Pradhan [2003] 26 EG 180 175

    Table of Statutes

    Table of Statutory Instruments

    • Family Procedure (Adoption) Rules 2005 7
    • General Development Order 1995 20
    • Hazardous Waste (England and Wales) Regulations 2005 87
    • Land Registration (Amendment) (No 2) Rules 2005 14, 43, 118
    • Part 2 6
      • Sch 1 6
    • Land Registration Rules 2003 16
    • Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 169
    • Pollution Prevention and Control (England and Wales) Regulations 2000 87
    • Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 46, 143, 154, 161
    • Regulatory Reform (Deeds and Documents) Order 2005 31, 32
    • Regulatory Reform (Fire Safety) Order 2005 87
    • Town and Country Planning (Control of Advertisements) Regulations 1992 88
    • Town and Country Planning (Use Classes) (Amendment) (England) Order 2005 84
    • Town and Country Planning (Use Classes) Order 1972 20, 84
    • Town and Country Planning (Use Classes) Order 1987 20, 84

    Table of Abbreviations

    ADRalternative dispute resolution
    AGAauthorised guarantee agreement
    CVAcompany voluntary arrangement
    FRIfull repairing and insuring (lease)
    JCTJoint Contracts Tribunal
    L&T(C)A 1995Landlord and Tenant (Covenants) Act 1995
    LLPlimited liability partnership
    LPALaw of Property Act
    LRA 2002Land Registration Act 2002
    LTVloan-to-value ratio
    DCLGDepartment for Communities and Local Government
    OMRopen market rent
    RICSRoyal Institution of Chartered Surveyors
    SDLTstamp duty land tax
    SSSIsite of special scientific interest
    UORRupwards only rent review
  • Glossary of Commercial Property Terms

    • Abandonment

      The voluntary relinquishment of a property or an interest in a property, where there is no intention of resuming possession of the property or of maintaining rights in it.

    • AGA

      See Authorised Guarantee Agreement.

    • Agreement for lease

      Tenant contracting to take a lease in a development before the development is completed. Often called a pre-let.

    • Alienation

      The transfer of an interest in property to another, usually by sale of a freehold or the grant or assignment of a lease, but can mean any parting with possession. Also called ‘disposition’.

    • Arbitration

      A method of settling disputes by reference to an independent and impartial third party, usually an arbitrator appointed by the President of the RICS. Arbitration is essentially an adjudication of the arguments of the parties, and as such differs from independent expert determination.

    • Arbitrator

      Person appointed to carry out arbitration.

    • Assignee

      A party to whom a lease has been assigned (see entry on assignment below).

    • Assignment

      The transfer of a lease from one party to the other. Once a lease has been assigned, the assignee becomes responsible to the landlord for paying the rent and fulfilling the other obligations of the lease; however, in the event of default, the landlord can require the assignor to pay the rent (a) under the doctrine of privity of contract, where the latter still applies, or (b) under an Authorised Guarantee Agreement.

    • Assignor

      One who assigns or transfers a lease.

    • Authorised Guarantee Agreement

      Agreement under s 16 of the L&T (C) A 1995 that the assignor of a lease guarantees the performance of the tenant covenants by the assignee.

    • Bank finance

      Funding of a development by a bank in return for a charge over the developer's property. Basically, a commercial mortgage.

    • Break clause

      A clause in a lease giving either or both parties the right to terminate a lease in specified circumstances.

    • Building lease

      A long-term lease, imposing an obligation on the lessee to erect one or more buildings on the leased land, which will become the property of the landlord after the lease expires.

    • Capital value

      The value of an asset, freehold or leasehold, as distinct from its annual or periodic (rental) value.

    • Capitalisation

      The value of an asset assessed in relation to the expected future income (rental) stream.

    • Certificate of practical completion

      A certificate by the developer's architect or agent that a development has been practically completed.

    • Collateral warranties

      Contractual promises for the benefit of third parties to whom they would otherwise owe no duty (eg tenants) given by contractors, architects, engineers and surveyors warranting that their obligations under their contracts or retainers have been and will be fulfilled.

    • Comparables

      In determining the initial rent, or the market rent during the course of a rent review, parties and those acting on their behalf will have regard to evidence of rents for similar properties. Comparables may also be used to analyse properties' sale values.

    • Condition precedent

      A term making a contract conditional until the condition has been fulfilled, until which time the contract will not come into effect.

    • Condition subsequent

      The contract comes into effect immediately it is entered into but may cease to have effect if the condition is not fulfilled.

    • Confidentiality clause

      An agreement between the parties to a lease or sale that some or all of the terms will remain confidential. Third parties can however compel the revelation of such terms (for example, where they are required to establish comparables) by means of a subpoena.

    • Contracting out

      Agreement between parties who are to be landlord and tenant that the security of tenure provisions of ss 38 and 38A of the Landlord and Tenant Act 1954, shall not apply to the lease into which they propose to enter.

    • Covenant

      The word is used in two senses. First, in the strict legal sense, it refers to a clause in the lease requiring the tenant (or landlord) to do something or not to do doing something (see also entry on restrictive covenant below). Secondly, it is used in the wider sense to denote the worth of a tenant (or, bearing in mind the doctrine of privity of contract, that of previous assignors) and hence the risk of default, which will have a bearing on the value of the lease. In this second sense, often called ‘covenant strength’.

    • Demised premises

      Premises which are the subject of a lease. Better described as just ‘premises’.

    • Derogation from grant

      An obligation on the landlord not to take away with one hand that which he has given with another (eg storing explosives next to the tenant's premises!).

    • Determination

      The bringing or coming to an end of a lease, or an estate or interest in property, especially by notice as expressly provided for in the lease or as a consequence of a fundamental breach of a lease condition. See also entry on termination below.

    • Development lease

      A lease in which the tenant agrees with the grantor to develop the site comprising the premises demised by the lease.

    • Disposition

      See entry on alienation above.

    • Distraint

      The enforcement of distress for rent.

    • Distress for rent

      A common law remedy enabling landlords to recover rent arrears by the seizure and sale of goods within the defaulting tenant's property.

    • Estimated Rental Values (ERV)

      An estimate of the rental which a property is likely to command in the open market at a given time.

    • Estoppel

      A principle in English law that a person cannot go back on something he has previously affirmed. For example, a tenant serving a counternotice to a section 25 notice cannot subsequently argue that the latter was invalid, unless he expressly reserved his position.

    • Expert

      Third party appointed to determine a dispute or resolve a failure to agree, as in a rent review.

      Expert witness

      One who is qualified to give technical or professional evidence, such as when a specialist surveyor gives evidence in support of one party.

    • ‘Flip flop’ arbitration

      A form of arbitration under which the arbitrator bases his award on the submission he considers most reasonable. It is claimed that this encourages parties to be more reasonable in their submissions and reduces polarisation.

    • Forfeiture

      Forfeiture of a lease occurs when the landlord exercises his right to regain possession against the wishes of the tenant, where there is a breach in a condition of the lease, or a breach of a covenant. The tenant can apply for relief. The landlord may lose the right to forfeit by waiver.

    • Freeholder

      Person holding an estate in ‘fee simple absolute in possession’, ie the freehold. Sometimes called the ‘reversioner’.

    • Full repairing and insuring (FRI) lease

      An FRI lease requires the tenant to pay all running costs, namely repairs and maintenance, rates and insurance.

    • Head tenant

      Where a subtenancy (or series of subtenancies) exists, the highest leaseholder in the chain (who pays head rent to the freeholder).

    • Headline rent

      The rent apparently being paid, which may not take account of concessions such as rent-free periods.

    • Independent expert determination

      An independent determination of the rent to be paid on review. Independent expert determination differs from arbitration in that the independent expert is not confined to the evidence presented by the parties.

    • Indexation

      The regular adjustment of a rent in accordance with a specified index, eg the Retail Price Index.

    • Institutional lease

      A lease developed since the 1960s to meet the requirements of pension funds and insurance companies investing in property. The term is typically 25 years without options to break (see entry on break clause above) and with five-yearly upwards-only rent reviews. The aim of such leases is long-term investment as part of a portfolio which aims to enable financial institutions to succeed in the financial services market by meeting their commitments to investors in a competitive and attractive way.

    • Interim rent

      A landlord may apply to the court to fix an interim rent when he has given notice of termination of a tenancy or where the tenant has served notice of a request for a new tenancy on the landlord.

    • Intermediate landlord

      The landlord of a subtenant, and in turn being the tenant of the head landlord.

    • Investment yield

      Annual passing rent as a percentage of the capital value.

    • Landlord

      The party letting the property.

    • Lessee

      See entry on tenant below.

    • Lessor

      See entry on landlord above.

    • Market rent

      See entry on Open Market Rental Value below.

    • Mesne landlord

      See entry on Intermediate landlord above.

    • Off-balance sheet finance

      Financial techniques which allow companies to incur debt, usually via associated companies or joint ventures, without the debt appearing in the group's consolidated accounts and affecting its gearing ratio.

    • O'May rules

      The principle that the terms of a new lease will generally follow the terms of the existing one; the onus is on the party proposing a change to show that it is fair and reasonable (O'May v City of London Real Property Co Ltd [1983] 2 AC 726).

    • Open market rent review

      Where the rent review clause provides that the rent on review should be based on the open market prevailing for new lettings.

    • Open Market Rent – OMR

      The best rent at which a property might reasonably be expected to be let with vacant possession in the open market, with a willing landlord and tenant, taking full account of all terms of the tenancy offered. The term tends now not to be favoured by surveyors.

    • Overage

      A sum of money over and above the purchase price which the buyer pays to the seller following compliance with agreed conditions as when, for example, the buyer applies for and gets planning permission and so increases the value of the property. The seller thus benefits from the increase. Overage may be secured by a restriction on the register or a charge on the property. Often used in development deals.

    • Over-renting

      This occurs when the passing rent exceeds the current open market rent.

    • Overriding lease

      An intermediate lease which the landlord grants to another party for a term longer than that of an existing lease, thereby creating a landlord and tenant, but not a contractual, relationship between the new and old lessee.

    • Passing rent

      The actual current rent being paid.

    • Pre-let

      See entry on agreement for lease above.

    • Premium

      The price an actual or prospective tenant pays to a landlord, usually in return for the rent being reduced to below what would otherwise be payable. Or a sum paid at the outset for the purchase of a lease. (See also entry on reverse premium below.)

    • Prime covenant

      The best quality of investment, represented by prime property.

    • Prime location

      The most desirable or sought after location.

    • Prime property

      A term used to define property of particular interest to investors. Broadly, prime property is likely to be a modern or recently refurbished building, finished to a high specification, well situated in a commercially strong geographical location and let to a good tenant.

    • Privity of contract

      The principle in English common law that landlord and tenant continue to have obligations under the lease despite subsequent assignment. Privity of contract was abolished for new leases coming into force from 1 January 1996. Leases entered into before then are still subject to privity, but landlords wishing to sue previous tenants still bound by privity have to serve notice within six months of rent or service charges becoming due. The current legislation (L&T(C)A 1995) enables landlords in certain circumstances to require the outgoing tenant to guarantee the performance of the incoming tenant, until there is a further assignment. See entry on Authorised Guarantee Agreement above.

    • Quarter days

      The four dates in the year when rent is normally due: 25 March, 24 June, 29 September, 25 December. Often termed, ‘the usual quarter days’.

    • Quiet enjoyment

      Most leases contain a covenant for quiet enjoyment, entitling the tenant to enjoy his lease without lawful entry, eviction or interruption, but not freedom from ordinary noise.

    • Rack rent

      The best market rent obtainable.

    • Real estate

      American term for real property now increasingly used in the UK, especially by large firms of solicitors.

    • Re-entry

      A landlord may exercise his right to regain possession of premises by peaceable re-entry where there has been a breach of a condition by the tenant or a breach of a covenant of a lease with a forfeiture clause. (See also entry on forfeiture above.)

    • Rent free period

      Short period of, say, three months at the start of a lease when the tenant does not pay rent because it is preparing the premises for business.

    • Rent review

      Lease clauses providing for a periodic review of the rent, usually at five-yearly intervals. The lease will generally specify what the basis of the review is to be: eg the open market rent prevailing at the time of the review or, as is frequently the case, upwards only (see entry on upward only rent reviews below).

    • Rental value

      The rent that a property might reasonably be expected to command in the open market at a given time, subject to the terms of the lease.

    • Restrictive covenant

      A covenant in a lease restricting the tenant in some respect, eg a covenant in a shop lease providing that only a particular type of trade may be carried out at the premises. More generally, an obligation in a deed whereby the covenantor undertakes to refrain from some act affecting the land of the covenantee.

    • Reverse premium

      On assignment, the payment of a sum of money by the assignor to the assignee as an inducement to take the assignment and so reflecting unfavourable lease terms, or adverse market conditions, eg where there is over-renting.

    • Reversion

      The right of the landlord to the return of premises on the expiry of a lease. As an interest, the reversion has value and may be transferred.

    • Reversioner

      See entry on freeholder above. Also means the estate of any superior title holder, such as that of an intermediate landlord (see also entry above).

    • Sale and leaseback

      An arrangement whereby a property is sold, with the vendor simultaneously being granted a lease on the property by the purchaser, generally either at a rack rent or at some lesser rent related to the price paid.

    • Schedule of dilapidations

      List of repairing works which the landlord requires the tenant to do under its repairing covenant.

    • SDLT

      See entry on stamp duty land tax below.

    • Securitisation

      The conversion of assets into tradeable securities.

    • Security of tenure

      The statutory right of a tenant to renew the lease at the end of a term. Part II of the Landlord and Tenant Act 1954 gives business tenants security of tenure, but parties may exclude it.

    • Service charge

      The amount a tenant pays for services which his landlord provides.

    • Side agreement/side letter

      Terms agreed separately by landlord and tenant, or by buyer and seller, which do not form part of the lease or contract of sale.

    • Stamp duty land tax

      Replaced stamp duty from 1 December 2003. SDLT is payable on the consideration paid by the purchaser in a ‘land transaction’ as defined by s 43(1), of the Finance Act 2003, meaning any transfer of land, grant or assignment of a lease. Charities and transactions within a group of companies are exempt. The tax is self-assessed and then a certificate of payment is issued, without which a transaction registrable at the Land Registry will not be registered. SDLT is said to raise about £7bn a year.

    • Subletting

      Where the tenant lets part or all of the premises to a subtenant, as permitted by the terms of the lease. It differs from assignment in that the head lessee remains responsible to the landlord for the payment of rent and fulfilment of other obligations.

    • Tenant

      The party to whom a lease is granted or who is a successor to that party and so currently the holder of the lease.

    • Termination

      The coming or bringing to an end of a lease, by mutual agreement, by the effluxion of time, or by the exercise of a right of one of the parties. Sometimes called ‘determination’.

    • Turnover

      Total sales or other business receipts, less VAT, in a given period, usually a year, thus ‘annual turnover’.

    • Turnover rent

      Where part or all of a rent, especially of retail premises, is based on a specified proportion of the tenant's turnover.

    • Upwards/downwards review clauses

      See entry on open market rent review above.

    • Upwards only rent reviews – UORRs

      Clauses in leases providing for regular reviews, at which the rent will be fixed at either the current passing rent or the open market level, whichever is the higher.

    • Waiver

      The act of voluntarily giving up, or intentionally relinquishing, a claim, benefit or interest. A landlord waives his right of forfeiture when a tenant is in breach of covenant, if he knows of the breach and accepts or demands rent or unequivocally recognises the continued existence of the lease.

    • Yield

      See entry on investment yield above.

    Bibliography

    Abbey, R and Richards, M, A Practical Approach to Commercial Conveyancing and Property, (
    2nd edn
    . Oxford: Oxford University Press, 2003).
    Encyclopaedia of Forms and Precedents, vol 22 (Butterworths).
    Evans, D and Smith, P, The Law of Landlord and Tenant, (
    6th edn
    , London: LexisNexis, 2002).
    Garner, S and Frith, A, A Practical Approach to Landlord and Tenant Law, (
    4th edn
    , Oxford: Oxford University Press, 2004).
    Gray, K and Gray, S, Elements of Land Law (
    4th edn
    , Oxford: Oxford University Press, 2005).
    Hill and Redman's Law of Landlord and Tenant (Butterworths, loose-leaf, 1988).
    Luxton, P and Wilkie, M, Commercial Leases (Birmingham: CLT Professional Publishing, 1998).
    Megarry, RE and Wade, W, The Law of Real Property, ed CHarpum (
    6th edn
    , London: Sweet & Maxwell, 2000).
    Ross, Commercial Leases (Butterworths, loose-leaf).
    Woodfall's Law of Landlord and Tenant (Sweet & Maxwell, loose-leaf, 1978).

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