Competition law and land agreements

An OFT consultation papers is out today on the effect on land agreements of the revocation of the Land Agreements Exclusion Order.  With effect from 6th April 2011 the prohibition of anti-competitive agreements in Chapter 1 of the Competition Act 1998 will apply to land agreements. 

Restrictive user covenants in shopping centres, for example, will have to be considered (and reconsidered from time to time) in the light of this change.

The consultation paper is about the OFT's draft guidance on the application of the law in this field.

Exchange Chambers Property Law Seminar

I hope many of you will be able to come to our 1 day Property Seminar at the Lowry Hotel in Manchester on 23rd September.


Our speakers include Edward Cousins, Adjudicator to HM Land Registry, and members of Chambers including Anthony Elleray QC, Mark Cawson QC, Bill Hanbury, Stephen connolly, Guy Vickers and myself. I will be in the Chair.


The topics to be covered include conveyancers' negligence and fraud, negligent valuation, recent security issues, keeping the tenant on the hook, land estoppels, Land Regsitry Adjudication and rectification and real property.


For more details contact me or email stapley@exchangechambers.co.uk. It should be a great conference!

Mediation panel

I am pleased to have accepted an invitation to join the panel of mediators at Consensus Mediation.

Land Registry Adjudicator

I am happy to say that I have been appointed a part-time Deputy Adjudicator to HM Land Registry. This work should be very interesting.

Agreement for a lease

The Privy Council has published a new decision on the creation of an agreement for a lease: FBO 2000 (Antigua) Ltd v Vere Cornwall Bird Jr [2008] All ER (D) 175. I haven't seen the opinions yet, but the Lexis summary suggests it offers nothing terribly new: it was held that the Antigua government had reached a sufficiently firm agreement for a lease where the essential terms of the transaction, i.e. the parties, the land, the term, and the rent had all been agreed.

I will be quite interested to see what they have to say about the degree of significance to be attached to the fact that the claimant had had entered into occupation and undertaken building works.

Land Registry adjudication decisions

There is a useful free site (part of the Tribunals Service website) which reports decisions of Land Registry adjudicators. It only reports them if

(1) they contain a statement of law or practice that is of general interest, and may be of assistance to other parties using the website or
(2) they decide points of law which have not, so far as the Adjudicator has been able to ascertain, been the subject of any other decision or
(3) they are in some other way of general importance.

It offers unrivalled access to current thinking in this important jurisdiction, but it is rather hidden away, so here is the address: http://www.ahmlr.gov.uk/Public/Search30May.aspx. I hope you find it interesting.

Landlord seeking to sue company in administration

Sunberry Properties Ltd v Innovate Logistics [2008] EWCA Civ 1261, CA (reported on LEXIS today) is a useful reminder of how not to approach an application for permission to bring proceedings regarding the breach of a lease where the prospective defendant is in administration.

The point of the administration was to do better for the company's creditors as a whole than if the company were wound up right away. It was up to the claimant to show that it was inequitable not to be able to sue. The court had to balance the legitimate interests of the landlord and those of the other creditors. Here, it had to compare the landlord’s loss if it could not sue, with the other creditors’ losses if it could. But it was very important not to interfere more than strictly necessary with the landlord’s proprietary interests. Even so, if the other creditors would suffer substantially greater loss, or loss out of all proportion to the benefit, that might outweigh the landlord’s loss.

Here the judge had gone wrong in several ways.

• He had criticised the administrators on a misunderstanding.
  
• He had wrongly thought the purpose of the administration would not be impeded by proceedings, on the footing that it had already been achieved on the sale of the business; but one of the main purposes of administration was still to collect the book debts.
• He had not done the balancing exercise properly: the administration needed the company to occupy the property.