January 2010 - Top property tips for 2010

To mark his arrival at Cousins Business Law we asked commercial property specialist Paul Harrison to put together a list of dos and don’ts for businesses to help them avoid the pitfalls of property issues and capitalise on potential opportunities in 2010.

Commercial property tips for 2010

1. Landlords should be proactive on recovering rent arrears to avoid being left high and dry by struggling tenants. Look out for warning signs that might mean a tenant has financial issues, like delays in payment or publicity surrounding the performance of the organisation. If it goes into administration, it becomes much more difficult to take action and recoup arrears.
2. With the stamp duty threshold going down, there are a number of ways to save tax on both high and low value transactions so ask your commercial property lawyer about how this could save you money.
3. Clients who are thinking of signing personal guarantees to secure liabilities of their company should not rush into it. If the business is unable to pay then a huge liability could then fall at your feet. Take advice before going down this road.
4. In the current climate, the chances are good for pub tenants to buy the freehold of their pub cheaply or to renegotiate a lower rent with their landlord. Discuss tactics with your commercial property specialist before approaching the brewery
5. Over the next 12 months, business rates relief is still going to be available for commercial properties. Speak to your legal adviser about how this might benefit you or whether business rates can be avoided altogether.

For more details on how you can make the most of property deals and minimize property costs contact Paul Harrison or Steve Petty in our Commercial Property Team.

Ezines at the end of last year looked at mediation and adjudication as methods of resolving business disputes. This final article exploring the range of dispute management methods looks at arbitration, expert determination and neutral evaluation.

Arbitration
Arbitration grew up due to the need to have a forum for resolving international trade disputes, for example shipping and carriage of goods. It is only usually relevant in high value cases, as it can be just as expensive as a court action.

Arbitration is similar to court proceedings. The final decision, known as an award, is final and binding, and enforceable through the courts. Arbitration has the advantage that it is consensual, so can only be used with the agreement of all parties and it’s private and confidential, so ideal for the kind of commercial dispute that you don’t want in the public domain.

Arbitration agreements can be found in all sorts of business arenas. For example, the rules of the Football Association require arbitration in disputes between clubs.

Read more: Solving disputes using arbitration.

Expert Determination
Expert Determination is a confidential and binding process which is agreed by the parties to the dispute, either in the original contract documentation, or in a subsequent agreement. An expert appointed will reach a decision which will be binding on the parties.

It has the advantage that it is confidential, carried out in private, and so can protect commercial confidences and sensitive subjects. It is also fast and far less formal compared to other dispute resolution processes, and is ideal for multi party disputes.

Expert determination is most suitable for technical disputes where the help of an expert is required. For example the expert may be an engineer, IT consultant, or valuer of certain types of property or goods.

As far as costs are concerned, it is usual for the parties to agree that they will meet their own costs and share of the fees of the expert. Unless the parties have agreed in their terms of reference, the expert cannot award costs against another party.

Read more: Expert determination for resolving business disputes.

Neutral Evaluation
Also known as Early Neutral Evaluation (ENE), this alternative dispute resolution process emerged in the late 1990s. The main difference to the other forms of dispute resolution is that any evaluation is non-binding.

So why would a non-binding evaluation be of any help? The key is that the evaluator is usually either a judge or a QC, someone who is used to court trials as well as having legal expertise and experience. The idea is that their decision would be very persuasive and be a strong indicator of the likely outcome if the matter went to trial.

It can be a cost effective solution for some disputes.

Read more: Resolving disputes through early neutral evaluation

For advice on any business dispute contact Nigel Musgrove or Gary Cousins in our Dispute Management Team.

With so much going on at the moment in the world of licensing law, licensees could be forgiven for not keeping up. Cousins Business Law will be issuing a detailed Licensing Law Update in the near future but here’s a sneak preview of what’s in store.

With election fever setting in, the government is frantically trying to put its house in order, and also trying to stay one step ahead of the opposition when it comes to the issue of binge drinking. Both the government and the Conservatives have just retreated from minimum pricing, but unfortunately the new mandatory conditions do seem to hit the on trade rather than the supermarkets. The good news is that the traditional pub should not be unduly tested by the new laws.

New laws passed last November make some significant changes for licence premises owners. The following changes will come into force on 29 January 2010:

1. Allowing members of Licensing Authorities to object to applications and initiate a review of a Premises Licence or Club Registration Certificate;
2. Making it an offence to sell alcohol to children on 2 occasions (currently 3 occasions) within 3 consecutive months;
3. A new offence for under 18s of persistently possessing alcohol in a public place (3 or more occasions in 12 consecutive months);
4. Changes to the law on confiscation of alcohol from under 18s and directions to those aged 10 or over to leave a public place.

The government has just announced the additional mandatory conditions which will attach to all licences, both new and existing. The conditions include a requirement to obtain satisfactory identification from those who appear to be under 18 who are trying to purchase alcohol, a requirement that free tap water is made available, a ban on irresponsible promotions and drinking games, and a requirement to make available smaller wine glasses and spirit measures.

The conditions on tap water and promotions will come into force on 6 April, and the conditions on age verification and smaller measures on 1 October.

As these will be licence conditions, any breach will be an offence carrying possible fines and/or imprisonment, but hopefully common sense will prevail in their enforcement.

Like 2009, this year is likely to be a challenging one for all. The World Cup should be a welcome boost for the trade, and particularly so if England progress through the group into the knock out stages. Let us hope that we can all return to positive thinking with sustained growth and prosperity by the end of 2010.

Read a copy of our Licensed Trade Legal Update on the Cousins Business Law website.

Paul Harrison joined Steve Petty in our commercial property team in December to expand our coverage across the Midlands. Working from his office in Northampton and covering clients across the Midlands, Paul joined Cousins Business Law from a firm in Milton Keynes. A graduate of Derby University, Paul began his legal career at a law firm in Leamington Spa before moving on to specialise in commercial property. He deals with everything from lease renewals and negotiations to property and land purchases, as well as small business purchases and sales, in particular restaurants, pubs, hotels and shops.

In these difficult economic conditions, the need for reliable, tailor-made commercial legal advice has never been more critical. Paul brings a wealth of additional experience to the team and his knowledge will be invaluable to our clients and professional contacts.

Find out more about Paul on our website, or for specific property advice give him a call on 01604 456591.

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