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APC OCT 2024 > Case Study > Flashcards

Case Study Flashcards

1
Q

Are leases by definition inside or outside the ‘54 Act?

A

Inside

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1
Q

How did you know that the lease was inside the ‘54 Act?

A

Was silent and no simple or statutory declaration attached to lease

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2
Q

How might a conflict of interest arisen in this case?

A
  1. The same agent/surveyor represents both the landlord and tenant (dual agency).
  2. There is a personal or financial relationship between the advisor and either party.
  3. The advisor has worked for the other party in the past on related matters.
  4. The advisor is incentivised in a way that favours one party.
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3
Q

You inspected the property having regard to the Surveying Safely. How did your inspection comply with this?

A

I conducted a desktop risk assessment prior to attending the site to identify any potential risks.

I then conducted a dynamic risk assessment on site.

I had regard to my companies lone working policy by ensuring my team knew where I was and made sure my phone was fully charged.

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4
Q

You measured the property on an NIA basis. What did you include/exclude?

A

Includes main sales area and storage, including kitchen.

Excluded plant room, toilets, cleaners’ room, usable areas less than 0.25 m, areas less than 1.5m in height, meter and service cupboards

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5
Q

Why did you choose not to Zone this property?

A

Zoning is a valuation technique, not a measuring technique

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6
Q

Turning to your first key issue - how did you rank the importance of these comparables?

A

Based on location, condition and size.

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7
Q

In your analysis of the comparables, you mention the strength of a hot-food use. Why was that a strength in your opinion? Why would hot food use achieve a higher rent?

A
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8
Q

What is a S.26 notice?

A
  • Tenant’s request for a new tenancy
  • Must be in the prescribed form containing proposals for a new lease and termination of current lease, including rent
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9
Q

Can a tenant serve a hostile S.26 notice?

A

No - if tenant does not wish to take on a new lease they must serve a S.27 notice if the current lease has already expired, giving 3 months’ notice

  • S.27 notice is not mandatory (if lease has not yet expired)
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10
Q

Your recommendation was to serve a S.25 notice - how long before the lease expiry did you recommend serving the S.25 notice?

A

Served S25 notice in Feb giving the minimum 6 months’ notice to terminate lease on 20 Aug 2024

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11
Q

What was your thinking between whether the notice should be served at the earliest opportunity (12 months before) or the latest opportunity (6 months before)?

A
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12
Q

If the market is improving, should you not have waited until the last opportunity to achieve the higher rent?

A

While waiting until to serve the notice at the last opportunity might have captured potential market improvements, the priority was to give the landlord certainty in securing a new lease without the risk of losing the tenant or facing delays.

No guarantee of a significant market uplift in the next few months, and early engagement allowed me to secure a rent reflecting current conditions

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13
Q

If you had waited 3 months before the lease expires to serve your section 25 notice - when would the new lease start?

A

If I had waited until 3 months before the original lease expiry (June 2024), the notice would not have complied with the minimum 6-month notice requirement.

This would mean the tenant could remain in occupation under the holding over provisions, and the new lease couldn’t legally start until at least 6 months after the notice was served

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14
Q

Ultimately, you agreed the lease renewal at £14,400 - what would you have done in the event the tenant’s representative disagreed with the quoting rent - what would be the appropriate dispute resolution options for you?

A

PACT

  • PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.

PACT offers a quick, efficient and cost-effective solution to a commercial lease renewal dispute without the need to go to court.

Parties who opt to use PACT can have their dispute resolution by a professional who has expertise in the subject matter, without the need to go to court.

Benefits of using PACT:

Flexible – parties can choose whether a lawyer or surveyor is appointed and whether they act as an arbitrator or independent expert.

Quick – PACT can be set up speedily and should be less time consuming than going to court.

Expert decisions – only professionals with high levels of knowledge and experience in the subject matter are appointed.

Adaptable – the scheme allows bespoke solutions to be developed to suit the needs of the parties.

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15
Q

What is PACT?

A
  • Professional Arbitration on Court Terms is a joint initiative set up by RICS and the Law Society as a form of alternative dispute resolution (ADR) for lease renewal disputes.
  • PACT is a process where the determination of all or some of the terms of a renewal lease is (with the consent of both parties) ‘delegated’ to an independent third party who may act either as an arbitrator or as an independent expert.

PACT offers a quick, efficient and cost-effective solution to your commercial lease renewal dispute without the need to go to court.

Parties who opt to use PACT can have their dispute resolution by a professional who has expertise in the subject matter, without the need to go to court.

Benefits of using PACT:

Flexible – parties can choose whether a lawyer or surveyor is appointed and whether they act as an arbitrator or independent expert.
Quick – PACT can be set up speedily and should be less time consuming than going to court.
Expert decisions – only professionals with high levels of knowledge and experience in the subject matter are appointed.
Adaptable – the scheme allows bespoke solutions to be developed to suit the needs of the parties.

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16
Q

If you wanted to make an offer to settle because you wanted to avoid going to court (because of costs etc) what might you have served on the tenant in this lease renewal?

A

Part 36 Offer of the Civil Procedure Rules marked ‘without prejudice’

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17
Q

What is the construction of your property and how do you know?

A

Concrete cross-wall construction, flat roof, solid concrete floors, glazed shop front.

I asked the internal building surveying team and confirmed with the client.

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18
Q

How else might you find out the construction of the property?

A
  • Building surveyor
  • Client info
  • Architects drawings and maintenance plans
  • Historical building information
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19
Q

What are the typical issues associated with your property?

A
  • Structural damage (cracked walls, faulty window seals, foundation deterioration)
  • Electrical hazards (incorrectly installed electrical panels and units or poorly maintained areas)
  • Moisture problems
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20
Q

Are you aware of any subsequent lettings on the parade and if so, at what rents were these?

A
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21
Q

Why would you not use ‘without prejudice’ in HoTs?

A

Becase the terms were not contentious

“Without prejudice” is used in negotiations to protect parties from having settlement discussions used against them in court. However, in HoTs, you typically would not use “without prejudice” because:

  1. Clarity of Intent: HOTs are meant to set out the agreed terms between the parties and signal the intention to move forward with the transaction. Using “without prejudice” would imply that the terms are still in dispute and not finalised.
  2. Binding Nature: HOTs often form the basis for drafting legally binding contracts. If marked “without prejudice,” it could undermine the intention to agree on key terms, causing uncertainty over the parties’ commitments.
  3. Record of Agreement: HOTs serve as a record of what both parties have agreed to in principle. Using “without prejudice” could imply that neither party is fully committed to the terms, which goes against the purpose of HOTs.
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22
Q

When would you use ‘without prejudice’?

A
  1. Settlement Negotiations: To ensure offers or concessions can’t be used against a party if negotiations fail.
  2. Dispute Resolution: To protect communications aimed at resolving disputes (e.g., rent reviews or dilapidations).
  3. Compromise Offers: In Calderbank Offers, to keep settlement discussions confidential while allowing reference to them when determining costs if rejected.

It encourages open negotiations without affecting the legal position.

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23
Q

Why use “Subject to Contract”? What does it mean?

A

“Subject to Contract” means that the terms being discussed are not legally binding until a formal contract is signed. It is used to:

  1. Clarify Intentions: Indicate that negotiations are ongoing and no agreement has been finalised.
  2. Prevent Premature Obligation: Ensure neither party is bound by the discussions until all terms are agreed and a formal contract is executed.
  3. Allow Flexibility: It gives both parties the ability to walk away or renegotiate terms without legal consequences until a contract is formally signed.
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24
Q

Why did you serve the S.25 Notice when the lease was due to expire in 2025?

A

Lease had security of tenure under the Landlord and Tenant Act 1954, allowing the tenant to remain in occupation after the lease expiry unless a S.25 Notice or other valid notice is served.

I served the S.25 Notice in Feb 2024 to propose a new lease starting on 21 Aug 2024.

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25
Q

Why did you propose a lease end date of 20 August 2024, rather than the original expiry date of June 2025?

A

The S.25 Notice still provided sufficient notice in line with the L&T Act 1954.

Notice was served more than 6 months before the proposed termination (on 20 Aug 2024), complying with statutory requirements.

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26
Q

How did you decide the dates in the S.25 Notice?

A

The Act requires a minimum of 6 months’ notice and a maximum of 12 months between serving the S.25 Notice and the proposed termination date.

I served the notice on 6 February 2024, proposing the lease end on 20 August 2024, which is within the legally acceptable timeframe.

The new lease was planned to start the day after, on 21 August 2024, to ensure continuity for the tenant and the landlord.

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27
Q

What would happen if negotiations for the new lease terms were delayed beyond 21 August 2024?

A

The tenant could remain in the premises on a holding over basis (S.24) under the terms of the existing lease until a new lease is agreed or a further notice is served.

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28
Q

Why did the HoT state that the new lease would start on 21 August 2024?

A

The HoTs reflected the proposed start date of the new lease as outlined in the S.25 Notice.

By stating 21 August 2024 as the new lease start date, it ensured both parties were aligned on the timing, providing certainty for the tenant and the landlord in terms of the lease renewal process.

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29
Q

How long before the lease expiry did you recommend serving the Section 25 Notice?

A

I recommended serving the S.25 Notice on 6 February 2024, following formal council approval.

I proposed a lease end of 20 August and the new lease to start the day after, complying with the minimum 6 month notice period.

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30
Q

Why did you serve the S.25 notice with a termination date of 20 August instead of 15 June 2024?

A

By the time I had been instructed on the property and received the existing property file information, I had missed the latest opportunity to serve the minimum 6 month notice to end the lease by the expiry date stated in the lease.

As a result, I had to propose the next reasonable date which was 20 August 2024.

31
Q

What would have happened if you had waited until 3 months before the lease expiry to serve the S.25 Notice?

A

If I had waited until 3 months before the original lease expiry (June 2024), the notice would not have complied with the minimum 6-month notice requirement under the ‘54 Act.

This would mean the tenant could remain in occupation under the holding over provisions (S.24), and the new lease couldn’t legally start until at least 6 months after the notice was served.

32
Q

Why was the original lease end date of 15 June 2024 missed?

A

Instructed late - not possible to undertake inspection/measurement and valuation and serve notice giving the minimum 6 months notice to end the least on the lease contractual end date.

33
Q

If the market was improving, should you not have waited until the last opportunity to achieve the higher rent?

A

Waiting might have captured potential market improvements, however the priority was to give the landlord certainty in securing a new lease without the risk of losing the tenant or facing delays.

There was no guarantee of a significant market uplift in the next few months, and early engagement allowed us to secure a new rent reflecting current conditions while avoiding risks associated with waiting.

34
Q

You state that you “carried out due diligence and necessary checks for conflicts of interest” – what due diligence did you undertake and what types of conflicts did you check for (actual, potential or perceived, financial or non-financial, individual or institutional)?

A

Due Diligence:

  • Asbestos register
  • EPC
    *Legal title

Undertook a conflict-of-interest check by consulting my team to ensure no other individual were acting for the same tenant, or any other party involved in the transaction.

Also discussed the matter with senior colleagues to ensure I had not been involved in any other related instructions that might create a conflict.

I checked for actual, potential, and perceived conflicts including:

  • Financial conflicts: Ensuring no personal or company financial interest in the transaction
  • Non-financial conflicts: Checking relationships or previous dealings with the tenant or client that might bias the outcome
  • Individual or institutional: Ensuring that no individual within the firm had any conflicting roles in this case.

After confirming no conflicts existed, I documented these findings to create a clear audit trail

35
Q

How did you know what to put in the ToE that the client eventually signed?

A

Before proceedings, I communicated with my client and discussed their requirements and objectives.

I had regard to the RICS Professional Standard: Real Estate Management wherein I documented the purpose of instruction, fees, reporting format.

Ensured terms were fair and clear

36
Q

How did you know that you were suitably qualified to act as a surveyor and advise on market conditions or values in Essex?

A

I have developed experience in the Essex property market through multiple lease renewals, rent reviews, valuations and property management exercises during my time at Basildon Borough Council.

These projects provided me with a strong understand of local market conditions and property values.

I regularly review comparable evidence and market trends.

Additionally, my work is always supervised and reviewed by a qualified RICS member to ensure compliance and accuracy, which reinforced my confidence in my ability to advise on market conditions.

37
Q

In your analysis of the comparables, you mention the strength of a hot-food use. Why was that a strength in your opinion? Why would hot food use achieve a higher rent?

A

Comparables showed that business like takeaways and cafes tend to attract more consistent footfall, which helps generate higher sales compared to traditional retail.

Also:

  1. Increased turnover: Food outlets typically generate higher revenues compared to standard retail, enabling them to afford higher rent
  2. Longer trading hours: Hot food businesses often operate during evenings and weekends, further increasing footfall and revenue
  3. Higher demand for food services: There is often a strong demand for food outlets, particularly in areas with limited competition, which increases the competitive bidding for these types of premises.
38
Q

Looking at key issue 1, how did you consider the comparable evidence to establish the market rent for your property?

A

I gathered comparable evidence by analysing local rents for similar properties, focusing on properties with a similar use class and location.

I examined rents achieved for hot food takeaways, as they were the most relevant use type for the subject.

I compared size, condition, and lease terms

39
Q

When collecting comparable evidence, you said you made adjustments in order to determine the market rent – what adjustment would you have made if one of your main comparables was a hairdressers?

A

I would adjust for the difference in use class and business type.

Hairdressers typically attract lower footfall compared to hot food takeaways, which may result in a lower rental value.

I would make adjustments for trading hours, business demand, and any fit-out costs specific to the hot food use, which tends to have higher operational costs

The adjustments would reflect the expected higher turnover of a hot food business, resulting in a higher rental value

40
Q

The evidence you ended up determining most useful were hot food takeaways – these were lease renewals. What would you refer to if there were different transaction types to help you make adjustments? Say a rent review and a lease renewal.

A

I would refer to the basis of the review outlined in the lease and any assumptions or disregards stated. For example:

  • Rent Review: Typically looks at the open market rent with disregards for tenant improvements. I would adjust for any assumptions or rent-free periods that may be applied.
  • Lease Renewal: Often based on current market rent, considering the tenant’s ongoing occupation and whether it reflects market demand. Adjustments would be made to ensure comparability across different transaction types by aligning them with the subject property’s lease terms
41
Q

You advised the tenant to get representation – why did you do this? How would your advice have changed in this case study if the tenant was not represented?

A

Advised tenant to get representation to ensure they fully understood the terms being negotiated and had access to professional advice on the lease renewal. Having a surveyor or legal representative could help the tenant secure the most favourable terms and ensure fair negotiations

Also is a mandatory requirement of the RICS Professional Standard: Code for Leasing Business Premises to advise unrepresented parties to seek legal advice.

If tenant had not been represented, I would have been more cautious in the negotiation process to ensure I maintained an ethical and balanced approach, explaining all key terms clearly. This would ensure transparency and prevent any perceived imbalance of power

42
Q

You also advised the landlord to serve a notice – what was your strategy in this case in regards to advising your client to serve a Section 25 notice?

A

To initiate the lease renewal process in a timely manner, providing both parties with the opportunity to negotiate new lease terms.

Gave the landlord an opportunity to propose new terms for the lease and start negotiations on their terms.

Served within the minimum 6-month notice period.

43
Q

When negotiating the lease - what were the main points of negotiation in this specific case?

A
  1. Market Rent
  2. Lease Length (and commencement date)
  3. Break Clauses
  4. Rent Reviews
  5. Repair Obligations
44
Q

In this case (lease renewal), you were able to come to an agreement, what would you have done if you did not come to an agreement?

A
  • Recommended referring the case to PACT - would allow an independent expert or arbitrator to make a decision
  • If PACT not suitable, we could have pursued the case through the County Court, following the Civil Procedure Rules and making a Part 36 offer to encourage settlement before going to trial.

Part 36 is similar to a Calderbank - has to be a genuine offer to settle. Offer is open for 21 days. Can be accepted after but offer can be withdrawn.

45
Q

What are the benefits of PACT over court proceedings?

A
  1. Faster Resolution: Quicker than going through the court process
  2. Lower Costs
  3. Specialist Decision-Maker
  4. Flexibility
46
Q

What were in your ToE?

A
  1. Parties
  2. Date of instruction
  3. Scope of Work detailing purpose of instruction, inspecting and measuring, sourcing comparable evidence, and advising on market rent
  4. Timescales
  5. Key outputs including valuation report and lease renewal strategy
  6. Conflicts of interest
47
Q

Why was it important to have ToE signed before you commenced work?

A
  1. Clarity: Clearly defined the scope and terms, ensuring both parties understood their obligations
  2. Legal protection: Provided contractual basis for the work, protecting both myself and the client
  3. Professionalism
48
Q

You mentioned that you took note of factors that could influence value on your inspection. What kind of things were you looking for?

A
  1. Property Condition: Identifying any defects or need for repairs
  2. Location: Its position within the retail parade and wider area (located outside of main retail zone)
  3. Layout and Size
  4. Comparable Properties
  5. Accessibility, parking, public transport
49
Q

Are you aware of any new RICS guidance emerging regarding measurement?

A

Following the publication of IPMS: All Buildings the RICS Professional Standard: RICS Property Measurement 2018 is in the process of being updated.

50
Q

Can you talk me through the specification of the property and how it compared to the comparable evidence sourced? How did it compare to the rest of the parade?

A

Single storey hot food takeaway in a neighbourhood retail parade.

Fit out for takeaway/food prep use with appropriate kitchen equipment and extraction systems.

Compares to the other units in the parade:

  • Had a similar frontage and visibility
  • Internal layout was more specific for hot food takeaway compared to the hairdresser or newsagent on the parade.
51
Q

In your schedule of evidence at Appendix C, you detail comparable evidence which is two-storey in height - how do you compare that and adjust against the subject?

A

The first floor area is residential occupied under a different lease not demised to the tenant. Therefore not a consideration in my valuation.

52
Q

How do you zone a retail unit? Why is it measured in this way?

A

Retail units are zoned based on Zone A, B, C, and remainder:

  • Zone A: The front portion of the shop, closest to the street, has the highest value
  • Zone B and Zone C: Progressively further from the street, each zone typically has half the value of the previous one
  • Remainder: Storage or ancillary space. Zoning is used to reflect the diminishing value of areas further from the shopfront and to make comparisons easier between properties of different layouts.
53
Q

What is in Section 25 and Section 26 of the Landlord and Tenant Act 1954?

A
  • Section 25: Allows a Landlord to serve notice to end or renew a business tenancy, proposing terms for renewal or stating opposition (with valid grounds)
  • Section 26: Allows a tenant to request a new tenancy by serving a notice to the landlord, proposing new lease terms
54
Q

Could you have proceeded with negotiations with the tenant if they did not receive any representation?

A

Yes, but I would have taken extra care to ensure that the tenant fully understood the terms of the negotiation.

I would have ensured complete transparency and fairness

55
Q

What did you include in your HoTs?

A
  1. Transaction type and parties (including solicitor details)
  2. New lease terms: Rent, lease length, break clauses
  3. Repair obligations
  4. Rent review mechanism
  5. Insurance and service charges
  6. Alienation provisions
  7. Security of tenure
  8. Surveyors and legal costs
56
Q

What use class is a hot food takeaway? Why is this relevant to your lease renewal?

A

Sui Generis

Relevant because I needed to find like-for-like evidence

Evidence from standard retail units wouldn’t accurately reflect the market rent for this specific use class

57
Q

What is the relevance of the lease being within the 1954 Act? Which section relates to security of tenure?

A

Lease being within the Act provides the tenant with security of tenure, meaning the tenant has the right to renew unless the landlord can oppose it on certain statutory grounds (e.g. redevelopment or tenant breaches)

Sections 24-28 relate to security of tenure:

  • Section 24: Right to continue in occupation
58
Q

Data Management – level 2 - How did you store any information about lease details when collecting the comparable analysis?

A

Stored in a secure, centralised database on the company’s server, which is only accessible to authorised personnel.

To ensure data accuracy, I cross-checked the information with survyeors and reliable sources before finalising the schedule.

All data was saved in a password-protected file and regularly backed up.

59
Q

What time period would you have had if a S.26 notice came in?

A

2 months to respond, in writing, known as a counter notice as to if the tenant’s request is accepted.

Failure to meet the 2-month timescale, the tenant may consider their notice accepted.

60
Q

If you received a S.27 notice, what action would you have taken?

A
  • Check that the notice has been served by the tenant
  • Check noticed has been served in writing
  • Confirm the tenant has been in occupation under the tenancy for at least 1 month
  • Confirm notice has been served on the competent landlord
61
Q

When would a Section 18 valuation be appropriate?

A

Section 18 of the Landlord and Tenant Act 1927 involves a specialist form of valuation relevant in the assessment of damages that result from a failure to meet contractual obligations

Majority of such cases occur after a lease end where a tenant may not have fully reinstated the building in accordance with its repairing obligations - in these circumstances, S.18 has the effect of limiting the landlord’s claim for damages to the loss in value suffered

62
Q

If you had not managed to agree HoT with the tenant, what course of action would you take? Are there ways that potentially costs could be mitigated?

A
63
Q

In your determination of the Market Rent, I couldn’t see the EPC rating. What was the EPC rating, and how did it affect your opinion of value?

A
  • EPC rating C
  • Meets current minimum standards
  • Reduces the risk of mandatory upgrades that could impact valuation
  • A lower rating could reduce the value due to potential compliance costs, especially if it fell below the legal minimum (E)
  • This might necessitate costly energy upgrades, deterring tenants and increasing risk, which could lead to a higher yield assumption, lowering the property’s capital value
64
Q

I can’t see that you recommended a break penalty in your Heads of Terms – is that a missed opportunity? What factors would influence your decision to include a break penalty?

A
  • A break penalty could have been beneficial, as it provides compensation to the landlord for early determination and deters tenants from exercising the break option.
  • However, in this case, omitting a break penalty allowed for more flexible terms
  • Factors to consider whether or not to include a break penalty include:
    Market demand
    Tenant negotiation power
    Landlord priorities
65
Q

After confirming your competence and independence, what is the next key thing to do?

A

Request a complete and signed copy of the current lease

66
Q

How could you have found out the identity of the tenant?

A
  • As tenant was a company, I checked on companies house
  • Section 40 notice
  • Check Land Registry deeds
67
Q

Why is it important to identify the parties involved?

A

To ensue that notice provisions and time limits can be adhered to

68
Q

Was there a statutory right to inspect the premises?

A

No, but there was a right to inspect giving REASONABLE notice

69
Q

What was the hypothetical term for the rent review date?

A

The greater of the residue of the term or 15 years

70
Q

Does a Section 25 notice have to state a proposed rent?

A

No - can just make reference to a market rent to be agreed between the parties or determined by the court

71
Q

Have you gone back and relooked at the rents in the subject area? What do they show?

A

No recent transactions on parade however a couple of transactions in Wickford High Street with rents between £13,750 and £14,700

72
Q

Other than size and location, what other factors influenced your opinion of the market rent?

A

User clause

Length of term

Tenant’s covenants

Alienation provisions

Rent review frequency

Date of transaction

73
Q

What was the rateable value for this property?

A

£11,250

74
Q

What is the EPC? Expiry?

A

C
July 2033

APC OCT 2024 (20 decks)

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