The Telecoms Code – A New Human Right?

The first substantive decision under the new Electronic Communications Code (the ‘Code’) was given by the Upper Tribunal on 30 October 2018 and it’s not good news for landowners. This judgment confirms that any ambiguity in the Code’s wording will be resolved firmly in favour of operators delivering electronic communications.

We now live in an age where it is assumed that it is in the public interest to have a choice of high quality electronic communications services – amusingly referred to by the claimant’s counsel as the ‘human right of mobile telephony’.

The case was a stark warning for landowners that Code agreements don’t only come about between willing parties – the Tribunal may impose agreements by which unwilling landowners may be compelled to grant Code rights to operators.

Here, the winning operator was Cornerstone Telecommunications Infrastructure Limited (‘Cornerstone’). At this stage, all Cornerstone wanted to do was have a look to see if the University of London (‘University’) building would be a good place to install new telecommunications apparatus. However, the University was loath even to let Cornerstone get its foot in the door.

Cornerstone applied to the Tribunal to compel the University to grant it interim rights of access under the Code.

The Upper Tribunal clarified that the Code does indeed confer power on it to compel a landowner to grant interim rights to an operator for preliminary investigations. The only bit of good news is that interim rights do not carry any right of statutory continuation.

Cornerstone needed only to demonstrate ‘a good arguable case’ (i.e. a lower standard than for permanent Code agreements) that it could satisfy the two-limbed test under the Code for the imposition of interim rights of access. The two limbs are:

  • can the prejudice that Cornerstone’s access causes to the University be compensated adequately by money; and
  • was there a public benefit likely to result in the making of the order.

In applying the first limb, the Tribunal held that allowing Cornerstone access to the University’s building to carry out non-intrusive surveys could clearly be compensated by money.

It follows that as there is only a minor prejudice being caused, the level of public benefit required to satisfy the second limb needed only to be relatively modest to succeed. Loss of capacity and coverage on a neighbouring site was held to be sufficient to discharge this limb.

Developers should note that the Tribunal may not impose such an agreement if the landowner intends to develop the land to which the Code right would relate, but the level of intention required has yet to be tested. It is not yet known whether the tests generated from years of case law under Landlord and Tenant Act 1954 will apply in the same way here.

Leaving would-be developers aside, it is hard to conceive of a situation in which the first limb of the test would not be met – if redevelopment is removed from the equation, perhaps all other inconveniences can be compensated by money. If access to electronic communications is to be viewed as akin to a ‘human right’, the interests of landowners may very rarely outweigh this public benefit and landowners may be better off working with operators to secure agreements mutually beneficial for themselves, the operators and the rest of us.

Getting One Step Ahead Of The Trespassers

The recent case of Vastint Leeds BV v Persons Unknown is a welcome decision for developers, who are concerned about the possibility of trespassers on large development sites.

Vastint Leeds BV’s (Claimant) development site on the site of the old Tetley Brewery and adjacent land in Leeds has suffered in the past from trespassers.  Due to the phased nature of the Claimant’s development plans, large parts of the site were and are likely to be vacant for a considerable period. Several of the buildings on the site are in an unsafe state and contain hazardous material, including asbestos. Despite having taken sensible precautions to secure the site with substantial fencing and security patrols, trespassers still managed to enter the site. Apart from travelers, nearby sites have also suffered from illegal raves and instances of fly-tipping, (the illegal dumping of waste products and materials).

Knowing of these potential  trespassers, yet without any current ones, the Claimant succeeded in obtaining an interim injunction from the court against “persons unknown” either attempting to establish occupation on the site or organizing raves, thus preventing trespassers from entering or remaining on the site without the Claimant’s consent.

When deciding whether the injunction should be made final, the Court confirmed that it is possible to obtain an order against persons unknown in three instances:

1. Where the name of a specific defendant is simply not known;

2. Where there is a specific group or class of Defendants, some of whom are unknown; and

3. Where the Defendants are defined by reference to their future act of infringement

The court looked at whether there was a strong possibility that if not restrained the persons unknown would act in breach of the Claimant’s rights. The court also considered if having acted in breach of those rights, the resulting harm would be so grave and irreparable that even the grant of an injunction at the time of the breach or an award of damages would not be an adequate remedy.

While troubled by the lack of evidence as to the specific identity of persons likely to trespass, the Court was swayed by the potential for serious harm that could occur to trespassers entering the site to whom the Claimant owed the usual limited duty of care. There was also concern about potential harm to employees/contractors/agents of the Claimant (to whom it owed a much more significant duty of care) as a result of any infringement of the Claimant’s rights.  The court also took into account the significant steps that the Claimant had taken to secure the site which had not prevented trespass in the past and which had resulted in significant loss to the Claimant.

This case will be helpful for problem sites, as having an injunction in place before any actual trespass occurs will accelerate the eviction process in terms of both civil and criminal enforcement action.  What comes out of the case is the importance for any applicant to take all practical and commercial steps possible to protect the property beforehand. Property owners should also identify specific risks both from and to specific classes of people in the area. The decision indicates that if evidence supports action the courts are willing to act.

 

Method in the madness: new certainty in valuation methods for viability assessments

Viability assessments for affordable housing have long been a source of frustration for developers. This difficult element of the planning phase is often the cause for delays in getting a development to the point where works can start. There is hope on the horizon in respect of one aspect at least however: a recent ruling should lead to more certainty with regards to valuation methods for viability assessments. In turn, this may reduce the time spent arguing about viability. Ground breaking it may not be, but it may speed the way to breaking ground. It must also be noted that the newly gained certainty will be offset, as the benefit of post-consent gains are most likely to be shared between the developer and the affordable housing pot.

Mr Justice Holgate, a very experienced planning judge, dismissed Parkhurst Road’s challenge to their appeal decision in Islington last year. He came down firmly in favour of factoring in local planning policy when calculating site values and requiring late-stage viability reviews to maximise affordable housing provision.  In a rare postscript, he took the opportunity to comment that it would be “opportune” for the RICS to revise their 2012 ‘Financial Viability in Planning’ guidance note, which the appellants had relied on in calculating their benchmark land value, in order to avoid a circular valuation issue.  The RICS  have responded saying that they are awaiting the review of the NPPF and will revise their viability guidance then but in the meantime will clarify the requirements for viability appraisals including making non-technical summaries.

The judgement will please the Mayor of London, who has adopted this approach himself and whose recent Housing SPG was aimed at embedding affordable housing requirements into land values. The adoption of such an approach ensures that initial appraisals on the purchase of a site factor in a 35% onsite provision.  It is thought that the next revision of the London Plan, due in 2019, will continue in this direction and the SPG may even influence the emerging NPPF changes, thereby extending this approach nationwide. The eventual logical conclusion to this will be reduced land values but it may also mean that developers will turn to non-residential schemes instead, particularly in a market where sales prices are already slipping.

Landlords, let’s be reasonable: otherwise you might pay the price

Landlords take note, on the back of a recent case, you face an increased risk that tenants will challenge costs which they are responsible for in a lease. The case in question related to tenants’ challenge of  insurance costs the Tribunal found in favour of the tenants, because the costs incurred were considered to be unreasonable.

Where leases require insurance costs to be ‘reasonably incurred’ or even just ‘reasonable’, landlords should:

  1. ‘shop around’ and be selective when renewing insurance policies. The premium charged must be reasonable and competitive in the market, but this does not mean that the cheapest insurance cover available is the only option. Other factors (such as the terms of the lease, the liabilities to be insured, the terms of the policy, credit rating of the insurer etc.) will all be relevant;
  2. be prepared to supply evidence to tenants to demonstrate that the landlord acted rationally when incurring the cost and that it is a reasonable charge in the circumstances; and
  3. when using block policies, consider whether tenants are adversely affected by the block insurance.

Whilst the recent case related to insurance premiums for a residential block, it would seem arguable that the same principle could also apply to commercial leases where  a service charge cost or insurance premium has to be ‘reasonably incurred’. It would therefore be prudent for commercial landlords to take the steps above when the costs themselves have to be ‘reasonably incurred’ or  ‘reasonable’.

Consent to Assign – taking the good with the bad.

The case of No.1 West India Quay (Residential) Ltd v East Tower Apartments Ltd surprised the legal profession in 2016 when the court held that one bad reason for refusing consent to assign a lease effectively trumped two other good reasons, making the landlord’s refusal unreasonable.

This decision provides some welcome pragmatism for landlords, residential and commercial alike, but care still needs to be taken when considering possible reasons for refusing consent, to ensure the decision is reasonable.

Best practice for refusing consent

  • Always make sure the reasons for refusing consent are related to the landlord and tenant relationship and the subject matter of the lease
  • It will be reasonable to refuse consent or impose conditions if otherwise the proposed assignee would have an adverse effect on the landlord’s rights and interest in the property or in its estate as a whole
  • Ensure any refusal is notified to the tenant in a reasonable time, giving the reasons for the refusal. This will be a matter of a few weeks, but will differ depending on the facts of the case and may depend upon how quickly the landlord is provided with all relevant information to allow him to evaluate the application properly
  • If there is insufficient information about the assignee either the application for consent to assign should be refused promptly or requests for financial and other information must be made speedily.

The Case
In the case, the tenant, East Tower, sought consent from its landlord, West India, to assign its interest in three apartments. West India withheld its consent to two of these applications on grounds that it had not received undertakings for its legal fees or for the cost of carrying out inspections of the apartments and it had not received a bank reference to enable it to assess the assignee’s covenant strength. The High Court held that the legal fees requested were excessive for a residential application and that this one bad reason overruled the two good reasons, thereby making West India’s refusal unreasonable overall.

The Court of Appeal disagreed and held that if the good reasons were independent of the bad reason then the bad reason should not “infect” the good. The vital question is whether the decision to refuse is reasonable not whether all the reasons were reasonable.

In this case the reasons were independent of each other and two of them were reasonable. The landlord would have refused consent on the reasonable grounds in any event. As a result the Court held that the decision to withhold consent was reasonable.

 

Attack of the Triffids: Knotweed nuisance cranks up a notch

Investor, developer, indeed landowner in any capacity – recent rulings mean Japanese Knotweed is now more of a nuisance (and a costly one) than ever. With over 6000 UK locations identified as containing the weed, you best be clear on how to handle this inconvenient invader or you face ending up in a bind.

What’s Changed?

The decisions in the two cases are a particular concern for landowners because:

  1. neighbouring landowners no longer need to demonstrate that the weed has caused physical damage to their property in order for a successful nuisance claim to be made; and
  2. the damages recoverable by the neighbouring owner can extend to diminution in value of their land and loss of amenity – which could amount to quite substantial sums of money.

What Should I Do?

If you are acquiring new land

  • Require the Seller/Landlord to confirm whether there have been any historic or ongoing Japanese Knotweed issues on the land and if so to provide details and copies of any guarantees or warranties which should be transferable to you and any lender.
  • Carry out your own site survey to satisfy yourself that there is no Japanese Knotweed on site. This will be very important for overgrown bare land.  It may be all you can do if the Seller tells you to rely on your own survey in answer to the question above.

If you have Japanese Knotweed on your land

  • Take immediate expert advice on how to eradicate the Japanese Knotweed – this must only be done by suitably qualified specialists. Make sure any action taken is backed by a guarantee or warranty which is transferable to successors and any future lenders
  • During the period whilst the Japanese Knotweed is being eliminated (which can take up to 3 years), take expert advice on how to minimise the risk of it spreading

GDPR: Three Months to Go

Changes to the privacy laws in the European Union reach beyond Europe. Any company regardless of location can fall under the new guidelines issued under GDPR. Reed Smith’s IP, Tech & Data Group hosted a webinar on February 22 that discussed key priorities and strategies for compliance during the final three months remaining before the Global Data Protection Regulation (GDPR) comes into force on May 25, 2018.

We believe these changes will affect many real estate clients worldwide, so we’d like to share our colleagues perspective on the GDPR.

The webinar, hosted by the authors of this blog post, can be seen on demand by registering on this page.

Buying in Wales? Why a speedy completion should be top of your priorities

Those of you involved in the acquisition of properties in Wales over the next couple of months should take note – if the value is over £1,000,000 for non-residential properties (or for non-residential leases, a net present value of over £2,000,000) or £400,000 for residential properties, then you’ll pay less tax if you can complete before 1 April 2018.

 From 1 April 2018, SDLT will be replaced by Land Transaction Tax (‘LTT’) for properties in Wales, as part of the exercise by the Welsh Assembly of its new devolved tax powers. Whilst many details of the new regime are still to be finalised (we have yet to have sight of the new return, or any online calculators, for example), the LTT system will take on board much of the existing SDLT regime – in particular, the various reliefs remain the same, according to what we know so far. Tax will be collected by the new Welsh Revenue Authority.

 The rates, however, are quite different, as you can see from the tables below – the Assembly has sought to follow a ‘progressive’ approach, in reducing tax for those purchasing cheaper properties, but increasing the tax payable on more valuable assets.  For example, the starting threshold for the payment of LTT is set at £180,000, rather than £150,000 (with no specific reductions for first-time-buyers, as there is under SDLT).

Non-Residential Freehold Properties and Lease Premiums

LTT SDLT
Value Rate Value Rate
£0 – £150,000 0% £0 – £150,000 0%
£150,000 – £250,000 1% £150,000 – £250,000 2%
£250,000 – £1,000,000 5% >£250,000 5%
>£1,000,000 6%

Non-Residential Leases

LTT SDLT
Net Present Value Rate Net Present Value Rate
£0 – £150,000 0% £0 – £150,000 0%
£150,000 – £2,000,000 1% £150,000 – £5,000,000 1%
>£2,000,000 2% >£5,000,000 2%

Residential

LTT SDLT
Value Rate Value Rate
£0 – £180,000 0% £0 – £125,000 0%
£180,000 – £200,000 3.5% £125,000 – £250,000 2%
£250,000 – £400,000 5% £250,000 – £925,000 5%
£400,000 – £750,000 7.5% £925,000 – £1,500,000 10%
£750,000 – £1,500,000 10% >£1,500,000 12%
>£1,500,000 12% [NB: 0% rate applies up to £300,000 and 5% for £300,000-£500,000, if you are a first-time buyer]

 

2017 Standard AIA forms: A summary of the important changes

The American Institute of Architects (AIA) contracts, the most commonly used set of construction contract forms on commercial projects in the United States, recently released the second part of its once-in-a-decade updates to the 2017 versions of its primary forms.

A Client Alert was issued summarizing the changes, which are described at length in a recent Client Alert written by Jim Doerfler of Reed Smith’s Energy and Natural Resources Group and Alison Wickizer Toepp of our Complex Litigation Group.

Full details on the changes to the forms used throughout the US real estate industry can be found here.

Are Contractor Joint Ventures the next development in Development?

The construction industry is witness to some fascinating developments, particularly around trophy properties in prime US coastal cities.

Within the US –and California particularly- we’re seeing a large number of reputable, experienced contractors banding together to pitch and win construction contracts on trophy properties. Companies that once ferociously competed have joined forces under Joint Venture Agreements, looking for the synergies that will win contracts on highly valued office towers, residential buildings and mixed-use developments.

One good example of a construction joint venture is found in the San Francisco mixed-use development at Ocean Center. Major contractors Swinerton and Webcor formed a joint venture to win the contract for this landmark city project. Their success is leading both companies as well as other firms to consider JV pitches for major developments across the United States.

Construction joint ventures are not without risk. Companies considering a partnership with a competitor have several issues to consider:

  • What will be the form of the JV entity impact upon construction contracts? Who has the authority to speak for all the JV partners when it comes to the contract?
  • Does the Joint Venture have any required JV contractor licenses that are required in some states?
  • The complexities of covenants between the JV partners and how they affect the agreement between the JV and the owner/developer.
  • Who in the JV has signature rights? Change orders often require quick decisions to avoid project scheduling problems.
  • Who is keeping the books? Accounting records should be on an ‘open book’ basis, available for inspection by the partners or members of the joint venture, the owner/developer or the owner’s construction manager.
  • Will the JV self perform work through its partners subsidiary organization and how will that be priced.
  • Will the need for cost expectation bar JV partner contractors from charging the owner/developer for costs and fees each JV partner has agreed to absorb due to the terms of the JV agreement.
  • Will project insurance require policies to name all the JV entities, particularly if partner contractors use their own forces at the construction site.  How will subcontractor liability insurance work on the Project.
  • Are there to be limitations on the owner/developer requirement that the JV partners agreement to joint and severally liable for the full completion of the work and for all obligations and liabilities under the terms of the construction documents.
  • How will any requirement for owner/developer indemnity protection from the JV to extend and bind the JV partners be handled.
  • In dispute resolution which is more complex when a construction JV exists will the JV partners agree that only one firm or attorney should represent them, simplifying the dispute resolution process.

Reputations are made in the construction of trophy properties. They also carry a corresponding financial risk and bonding requirement that may be beyond the capability of a single company. Joint Ventures in the construction arena address these concerns from the contractor side of the equation.

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