Equitable easements – a trap for the unwary developer

Author: Julia Tobbell, Senior Associate, Real Estate Disputes, London

When purchasing a development site, it is important to make sure that the site can be used for the purpose for which it is acquired. When it comes to easements, in theory a purchaser should not get any nasty surprises. However, overriding equitable easements can be hard to detect but can have costly consequences. What are they, what is their impact and how can the risk they present be minimised? Continue reading

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Beware! Contract Races – Could you be in one?

Author: Ruth Benfield, Senior Associate, Real Estate, London

The SRA Code of Conduct 2011 forms part of the Solicitors Regulation Authority Handbook. The Code is to be adhered to by all lawyers – both in-house and in private practice. Sometimes it’s good to have a timely reminder of aspects of the Code which you don’t necessarily come across that often. Of particular interest to investors and developers is the duty that a seller’s legal team must inform potential buyers of a seller’s “intention to deal” with more than one party. Understanding this duty may help when structuring the transaction. Continue reading

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Real Estate Podcast EP2: Highways – dedication, adoption, maintenance and stopping up

In this podcast, Herbert Smith Freehills associate Martyn Jarvis explains the difference between dedication and adoption of a highway, what a duty of maintenance of a highway involves and what stopping up is. Continue reading

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EGi: What’s so unlawful about London’s affordable housing policy?

The High Court has declared a key policy in the mayor of London’s planning guidance on affordable housing ‘unlawful’ – but what does that mean in practice? Matthew White, Partner and Head of UK planning, explains the impact of the decision in this article published on EGi on 25 June 2018, in hard copy in Estates Gazette on 30 June 2018.

For more information please contact:

Matthew White
Matthew White
Partner and Head of UK planning practice, London
Email | Profile
+44 20 7466 2461

 

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How the legal profession is responding to technological advances – interview with HSF partners Jeremy Walden and Shona Grey

In this podcast our HSF Real Estate partners Jeremy Walden and Shona Grey discuss how the legal profession is responding to technological advances, as part of the EG Tech Talk Radio series.

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HMRC wins landmark SDLT avoidance case

Authors: Neil Warriner, Partner and Head of UK Real Estate Tax; Will Arrenberg, Partner, Real Estate Tax; Heather Gething, Partner and Head of Tax Planning and Tax Disputes, London

In a 4-1 ruling, the Supreme Court has found in favour of HMRC in the long-running saga of Project Blue Limited v. HMRC (2018) UKSC 30, to the effect that the taxpayer was liable to pay stamp duty land tax (SDLT) on the amount of financing (£1.25bn) it received under the sharia’h law compliant structure, and not merely on the actual price it paid for the land (£959m).

To recap briefly, the taxpayer had contracted to buy a freehold property at Chelsea Barracks in London from the Secretary of State for Defence for a basic price of £959m and had arranged to finance this, along with anticipated development costs, by using a sharia’h law structure under which it sub-sold the freehold on to a banking group for £1.25bn and immediately leased back the asset on terms that effectively replicated a normal financing arrangement, at the same time taking a right to buy back the freehold in the future once the financing arrangement had run its course.

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Real Estate Podcast EP1: Why mark documents “subject to contract” in real estate transactions and joint ventures?

Kate Wilson and Lucy Morton, lawyers in the Real Estate and Planning teams at HSF, provide a summary of the importance of marking documents with the words ‘subject to contract’ when entering a real estate transaction or joint venture arrangement, as discussed in the recent Court of Appeal case of Generator Developments v Lidl UK [2018] EWCA Civ 396.  Continue reading

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Ousting unauthorised occupiers! Government consults on dealing with trespassers 

Authors: Judith Smyth, Associate and Matthew Bonye, Partner and Head of Real Estate Dispute Resolution, London

The word “trespasser” may well send a shiver down the spine of many commercial landowners.  Trespass can take a number of different forms, from squatters in empty commercial buildings, to travellers on empty land, or protestors occupying land to gather publicity for a particular cause. While squatting in residential buildings is now a criminal offence, the criminal law does not so easily assist for commercial land. Instead, regaining possession of commercial land following incursion by trespassers can be a fraught, costly and time-consuming exercise for the landowner, often involving court proceedings and bailiffs, and resulting in an expensive clean-up and repair operation after possession is obtained. There is now an opportunity for landowners, developers and other interested parties to comment on proposals for improving the system.

The Government’s recently announced consultation on “Powers for dealing with unauthorised development and encampments” is welcome recognition that the current system needs to be strengthened to give greater powers to commercial landowners to deal with trespass incidents swiftly and without having to incur significant expense. Although the consultation is expressed to be directed predominantly at what the Government terms “unauthorised encampments” set up by the travelling community, given the statutory mechanisms for dealing with trespass are essentially the same for all categories of trespass on commercial land, the consultation has the potential to benefit commercial landowners more broadly.

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Are you GDPR ready?

Authors: Ruth Benfield, Senior Associate and Alice Dockar, Partner, Real Estate, London

It is unlikely to have gone unnoticed from the volume of emails asking individuals to “opt in” to future company mailing lists that tomorrow (Friday 25 May), the EU General Data Protection Regulation (GDPR) comes into effect in all EU countries and in the UK it will be supplemented by the Data Protection Act 2018. The stakes are high – if your company does not comply, it could be fined up to 4% of worldwide turnover or 20 million Euros, whichever is higher.  As the information being held by landlords and developers is likely to be varied and complex (and not just employee data), such industries are in a vulnerable position with regards to compliance.

So what do companies operating in the real estate sector need to do?

  • Read the rest of this blog post for a reminder of the types of personal data which you might be holding on your databases which will need to be GDPR compliant;
  • Check our HSF hub page on GDPR here; and
  • Contact us at HSF with any queries or for further information.

GDPR will affect anyone using, collecting, processing and storing personal data. Personal data covers the type of information which you would expect, for example contact name and details, but could also include information collected by landlords and developers on building management systems and databases (for example when an individual enters and exits a building, and see more examples below).

The property development industry appeared to be lagging behind other sectors in its preparation for GDPR so we have put together a brief reminder of the types of personal data which you might be holding on your company databases which will be subject to GDPR requirements. This could include:

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CYBER SECURITY – is your property adequately protected?

Authors: Ruth Benfield, Senior Associate, Real Estate and Alice Dockar, Partner, Real Estate, London

Cyber security affects all businesses and industries and is a Board level agenda item. As cyber-attacks are becoming more common (and hitting large institutions, such as Uber and the NHS) we are advising our clients to check the adequacy of their buildings and contents insurance policies and the building management, security and IT systems in their properties.

Buildings are particularly vulnerable to outside threats due to their reliance on technology for building management and security systems (for example fire alarms, sprinkler systems, automated air-conditioning, lifts, escalators, to name a few) which are often fundamental to the running of a commercial building. Such systems could be an easy target to hackers and the potential physical damage, destruction and disruption which could be caused makes the threat a real one. The risk for developers and landlords is therefore significant.

A cyber-attack which results in the destruction (or temporary failure) of such systems is likely to mean that tenants or their customers and employees are unable able to use or occupy the premises until new systems are installed, which could be a time consuming and expensive process. Imagine if a cyber-attack results in the activation of a building’s sprinkler system, causing severe water damage. Not only would a tenant be unable to use its premises until the water damage is repaired (resulting in loss of business) but also the cost of repairing the damage might not be covered by any existing insurance policy. This type of threat could affect a range of commercial properties, whether retail shopping centres, industrial units, offices or hotels.

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