What is a commercial landlord? A commercial landlord is an individual or entity that owns property intended for business or commercial use and leases or rents that property to businesses or tenants. These properties can include office spaces, retail stores, warehouses, or other real estate designated for commercial activities.

A commercial landlord is responsible for maintaining the property, collecting rent, ensuring compliance with lease agreements, and managing any issues or concerns that may arise during a tenancy. A commercial landlord also has legal obligations, including adhering to safety regulations and addressing repairs or maintenance within the property. Commercial leases typically have different terms, conditions, and legalities compared to residential leases, as they cater to business needs.

When a commercial tenant falls into arrears, the landlord may exercise their right to recover the arrears in a number of different ways. These will be discussed below.

Commercial Rent Arrears Recovery (CRAR) – The Tribunals, Courts and Enforcement Act 2007 Section 72

The Tribunals, Courts, and Enforcement Act 2007 Section 72, specifically focuses on Commercial Rent Arrears Recovery (CRAR). The provision at Section 72 (1) allows a commercial landlord to use procedures in Schedule 12 to recover goods, to the value of the arrears due, without going to court. It must be noted however that the seizure of goods under this legislation only applies to the rent due and payable under the lease (including VAT and interest). The lease must be written and signed, and the tenant must owe a minimum of 7 days rent.

Should the landlord wish to use this method of recovery, they must provide the tenant with 7 days’ notice of enforcement after the rent becomes due. The landlord would then need to instruct Certified Enforcement Agents, to effect seizure of goods. Only Certified Enforcement Agents are permitted to seize goods, under the Act.

High Court Writ of Control

In addition to the CRAR, as discussed above, a commercial landlord may decide to obtain a judgment, which a High Court Enforcement Officer can then enforce. It is important to note, however, that this process will take longer than using the CRAR process. It would be appropriate for a commercial landlord to seek to obtain a court order in one of the following circumstances:

1. If the landlord seeks to recover any additional arrears apart from the rent due under the terms of the lease, for example service charges or insurance, as Section 72 only permits recovery of rent due under the lease, and not these additional arrears.

• There is no signed lease agreement, but a signed license.

• If the tenant is no longer at the leased premises, then the landlord would be required to obtain a High Court Writ of Control, as under the Act, the enforcement agent is only permitted to seize goods at the leased premises. The seizure of goods could then be effected by the enforcement agent at the tenant’s new business address.

Statutory Demand

A commercial landlord may decide to serve the tenant with a statutory demand, which provides the tenant with 21 days to make repayment of the arrears. Failing the tenants’ repayment, the landlord can then apply for a winding up petition against the tenant’s company. The landlord may also seek to obtain a bankruptcy order. A statutory demand can be an effective way to obtain repayment of rent arrears.

Money Judgment

A commercial landlord may issue proceedings and seek to obtain a judgment for rent arrears. The landlord should however consider whether it is worthwhile taking this route, as if the judgment is granted, the tenant still may not pay. The landlord would then need to have the judgment enforced, which would only be a viable option if the tenant has any assets of enough value to cover the arrears. If the tenant does not, then the landlord is at risk of losing more money, as it can be costly to issue proceedings and to enforce the judgment. There are also several procedural steps that must be followed prior to issuing proceedings, in compliance with Pre-Action Protocol under the Civil Procedure Rules.

Forfeiture

A commercial landlord may also exercise their right to forfeit a lease, by way of peaceable re-entry to the property. Forfeiture, however, may not be the most preferable option for a landlord, as unless they have secured a new tenant, forfeiture could prove to be expensive, and financially detrimental.

In conclusion, as we have explored there are several options available to commercial landlords, seeking to recover rent arrears. It would appear that Section 72 of CRAR would be the most beneficial and cost effective route for the landlord to use if this option is available to them, as it is relatively straightforward, and likely has the best prospects of recovering goods to the value of the arrears.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Co-owning property is common whether it is for the purpose of an investment or owning your home with your spouse or cohabitee. Similarly, a situation might arise where a person has died, leaving behind one or more properties within their estate.

Whilst everyone hopes that the parties who own the property will agree on how to handle it, this is not always the case. What happens to the home when a relationship breaks down? What about when investors disagree on the best time to sell a property and realise the investment? What happens if one of the owners has a large amount of debt? In any of these circumstances, the parties might want to use the provisions set out in the Trustees of Land and Appointment of Trustees Act 1996, also referred to as TLATA.

Who can make an application?

TLATA states that someone can make an application to either the High Court or the County Court if they are a:

• Trustee of the land, or might have an interest in the land;
• Personal representative of a beneficiary;
• Trustee dealing with the bankruptcy of a beneficiary;
• Person holding a charge over the land;
• Person holding a mortgage over the land;
• Receiver.

Lots of different people, operating in varied capacities, can therefore utilise the provisions of TLATA. The important aspect of TLATA is that where there is a trust of land, there are statutory provisions stating what can happen to that land and what the court can do about it.

What can a court do?

The court has some discretion in relation to deciding what to do, by looking at why the trust of land was created in the first place. For example, if a couple intended to create a family home before a relationship breakdown, the court might be reluctant to order the sale of the property if the trust can still fulfil its main purpose of being a home for a family. In these circumstances, the court will also have particular regard to the welfare of any children who might be living in the property.

A court has the power to make a variety of orders under TLATA, which include ordering the sale of a property, or an order postponing the order for sale; apporting the beneficiaries’ ownership of the property; an order relating to a beneficiary’s right to occupy the property or for the land to be partitioned without the consent of the beneficiaries.

When to seek legal advice

TLATA disputes can become complicated, and given that property is usually the most valuable asset people have, it is important to take steps to protect your interest in it. If you have any disputes relating to property owned jointly, then you should contact a solicitor to see how they can advise and assist you.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Alternative Dispute Resolution (ADR), is a way of trying to resolve a dispute without going to court.

Going to court should always be viewed as a last resort to solve any disputes. Whilst there are times that it can be necessary, there are usually other options to consider before pursuing litigation, including ADR methods.

What is ADR?

Alternative Dispute Resolution, often referred to as ‘ADR’, is a way of trying to resolve a dispute without having to go to court. The general idea behind ADR is that the parties can agree a settlement at an earlier stage in the legal proceedings, or sometimes without even starting legal proceedings. In short, it can help save money.

In legal disagreements, courts strongly encourage parties to try ADR methods first. Parties will often have to justify to the court why they are refusing to use ADR, with the possibility of facing sanctions for their refusal.

Alternative Dispute Resolution: The Pros & Cons

Whilst each type of ADR has its own complexities, and could be explained in detail, the following pros and cons apply to most types of ADR. In short, ADR can be cheaper, faster and less stressful than litigation. However, it is not suitable for everyone and can potentially hinder the process of resolving some disputes.

Asking an experienced Dispute Resolution solicitor can help you decide if ADR is right for your case.

Key benefits of ADR:

• It is less expensive than pursuing litigation.
• It can help maintain a positive relationship between the parties.
• It can obtain a faster result compared to litigation.
• Many forms of ADR are confidential processes, which maintains privacy for clients.
• The neutral third party assisting is often an expert in their field.

Disadvantages of ADR:

• If ADR is unsuccessful, it can delay the court proceedings.
• Except for arbitration, ADR is not usually legally binding.
• All parties to the dispute must agree to using ADR.
• ADR does not guarantee a resolution to the dispute.
• An ineffective third party can potentially hinder a resolution.

Types of ADR Available

There are different types of ADR (listed below). They all work in different ways, have their own pros and cons, and each type is suited to differing types of dispute – there is no one size fits all when it comes to ADR!

• Mediation is where a neutral person will assist the parties to discuss the differences in their legal position to help them to come to an agreement. It’s often faster than court, but not legally binding.
• Arbitration is where an arbitrator (usually an expert in the field of the dispute) will make a decision based on information given to them by the parties to the dispute. The decision made by the arbitrator is legally binding on the parties. Although legally binding, it can be more costly than mediation.
• Early Neutral Evaluation can be completed either by a judge, or be done privately. Whilst it is not legally binding on the parties, it gives an opportunity for the strengths of the case to be provisionally considered, which indicates which side would be likely to win if the matter were to go to trial. 
• Independent negotiation is where an independent negotiator will help the parties to negotiate and reach an agreement. It can help keep relationships intact, depending on the skill of the negotiator.

Is ADR right for my case?

ADR can be suitable for claims of any size (large or small), and in July 2022 the government announced that it is looking at expanding a requirement to mediate beyond the current Small Claims Mediation Service (which is currently for small claims valued at under £10,000). This therefore makes understanding, and utilising, ADR ever more important as a tool for resolving disputes quickly, without needing expensive litigation in court. 

Our dispute resolution solicitors at TV Edwards LLP are always happy to provide reliable, independent legal advice for disputes that arise. This includes advising on appropriate ADR options that can be explored.

Speak to our solicitors for tailored advice based on your case and goals.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

A will and the intestacy rules: definition

A Will is a document establishing who will inherit your estate and who will manage your belongings (called administering the estate) upon your demise.

The cornerstone rule of the succession law regime in the UK is as follows: complete testamentary freedom.

Indeed, if no Will is left behind upon our demise, then the intestacy rules apply. This means that the closest relative, usually the civil partner or spouse, is the most entitled person who can apply to manage the estate (by being granted what is called letters administration) and the partner/spouse or children might inherit the full estate.

We will simplify the rules as follows:

1. If there are children, or if these children passed away prior to the testator, their descendants, the partner/spouse will inherit all the personal property and belongings of the person who passed, the first £270,000.00 of the estate and half of the remaining estate. The children, once reading the age of 18 years old, will inherit the remaining of the estate.
2. If there are no surviving children or descendants of these children, the partner/spouse inherits the whole estate.

While the above seems simple, it becomes way more complex when there is no spouse, no children or where the right to an interest on the deceased’s estate is contested, which more often than never end up in Court and costing the parties a significant amount of money.

In addition, any jointly owned property such as bank accounts, shares and/or real estate will be inherited by the spouse/partner. The joint status of ownership can be changed; we advise to receive legal advice on the above if it is your situation.

On the other hand, having a properly drafted Will means that the wishes of the deceased will be applied if the Will is properly drafted, witnessed, that there is no other conflicting Will and that the original is provided to the Probate Registry at the time of the application to administer the Estate.

The rules above can be more complex than they seem, particularly where the   Will is contested. A Will can be contested where it is, among other things, poorly drafted or because the original is lost. It is therefore extremely important to ensure your Will is meeting the formal requirements allowing its validity.

Challenging a will: the grounds

Sometimes, executors, beneficiaries or non-beneficiaries will want to challenge the content or validity of a will.

A will’s validity can be challenged and common grounds include the following:

1. The will is not signed or witnessed properly
2. The will was forged or the signatures were forged
3. The will was the result of fraud
4. The testator does not have capacity
5. The testator was under undue influence
6. The will was signed but its content was unknown and unapproved by the testator

Where you have a valid claim and the grant has not been issued, the procedure to follow is called a caveat. It is an application to the Probate Registry to require a halt in the process of distributing the estate of the deceased. A caveat last six months and can be renewed.

In addition, if you believe that there is an error in the will such as an administrative error or a lack of understanding of the testator’s instructions, which result in the intentions of the testator not being carried by the will, you may be able to bring a claim under the Administration of Justice Act 1982 for the will to be rectified.

Where the will is valid but its content considered unfair – the Inheritance Act 1975

Other possibilities exist where the will is valid but you have been left out of it and unfairly treated. This falls under the regime of the Inheritance Act 1975.

This act allows certain individuals to initiate a claim for a reasonable financial provision where the will left them out.

The Inheritance Act 1975 allows the following people to bring a claim:

1. The spouse or civil partner of the person who passed away or their former spouse
2. A child of the deceased
3. Someone who had been living with the deceased as spouse or civil partner for two years prior to their demise
4. Someone treated like a child by the deceased
5. Any other person who was maintained by the deceased

What can be claimed depends on the person bringing the claim. The first category of individuals can bring a claim for what is reasonable in the circumstances of the case for their category of individuals. For the other categories, the claim is for financial provisions as it would be reasonable for their maintenance, which means that their claim is limited to what is necessary and not what is reasonable in their circumstances.

Section 3 of the Act explains the circumstances relied upon by the Court, it includes the financial needs, financial resources, the value of the estate of the applicant, any disability and the conduct, if relevant.

Time limit

It is very important to note that the limitation period for bringing such a claim is six months from the grant of probate or letters of administration.

The Court’s powers

The Court has a wide range of discretional measures it can take in relation to contested probate. It includes allowing a party to live in the deceased’s property, awarding a lump sum or periodic payments and transferring properties.

Conclusion

Contentious probate matters are often costly in time and funds. Our Solicitors can advise you on what the best course of conduct is and the likelihood of success.

For all the reasons mentioned above and to understand better the rules applying we advise to consult a Solicitor to ensure your wishes will apply once you pass away and that your loved ones will receive what you meant for them to receive. We, at TV Edwards, are available to advise you on the above and draft your Will for you to protect your interest. In addition, we are available if your wish to receive assistance with a contentious probate matter.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.