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London SE1 - 178 Lambeth Road

A cafe/restaurant with flats above, the property occupies a prominent corner in an isolated trading position.

Acting for the Tenant, for the 2008 review, the landlord's proposal was £34,000 pa. I served the counter-notice to prevent the proposal becoming binding and then negotiated a reduction of £11,000 per annum.

Following expiry of the contractual term, in 2014 the Tenant instructed me to negotiate renewal of the lease.

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London W11 - 229 Portobello Road

Acting for a Subway franchisee, I was instructed to negotiate the 2011 rent review. The landlord also owns the adjoining property let to Starbucks and we were told that the rent on renewal there had been agreed on more favourable terms in order to deter Starbucks from leaving. The landlord's surveyor proposed a hefty increase which could be softened if my Client would agree to a rising rent.

Before my Client had taken the assignment, the previous tenant had agreed the 2007 review coupled with a personal concession on rent payable. The concession expired on the 2011 review date so my Client had no choice but to pay more in any event.

After I was instructed, the landlord's suggested softening of proposed increase was withdrawn and the full market rent required which the surveyor was adamant should be based, pro-rata, on the Starbucks rent.

The lease plan states the agreed areas overall so the surveyor dismissed any idea the shop should be valued in zones. However, Portobello Road shop rents are zoned, also I discovered that the lease plan had been extracted from a shop-fit drawing that had been prepared for the previous tenant before the lease was granted and which also showed a different layout.

I proposed various figures in the hope of getting the landlord to agree and on one occasion the offer would have been accepted in principle, but I then withdrew it after new evidence came to light. By then, the landlord had implemented the dispute resolution procedure in the hope of pressuring an agreement. I concluded it would be best to allow the referral to go ahead and independent expert determine the rent.

The time-frame in the lease by which the independent expert had to determine the rent was tight and the parties would not agree to any deviation from the timetable. In my submission, I pulled out all the stops.

Much to the consternation of the landlord and its surveyor, the outcome was favourable to my Client. The passing rent before the review was £43,500 pa, the landlord's proposal £56,000 pa, and the Determination £45,700 pa.

The Lease did not require the independent expert to give reasons for the determination and he did not. After the determination was released, the landlord's surveyor sought reasons but I objected on the ground there was no benefit to my Client and the landlord capable to forming his own opinion of how the rent had been arrived at.

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London W11 - 31 Notting Hill Gate

The premises, in Notting Hill Gate, London W11 were let in 2004 at £50,000 per annum exclusive for a term of 20 years, with 5 yearly rent reviews. The tenancy is outside the Landlord and Tenant Act 1954. In July 2010, the first tenant (a franchisee of Subway) assigned the tenancy to a new franchisee. Before the assignee took over, negotiations for the December 2009 rent review were on-going, both first tenant and the landlord professionally represented. The landlord, represented by Savills, had proposed £80,000 and after extensive negotiations including Calderbank offers the landlord wanted £72,000 pa whereas the first tenant’s surveyors were at £57,000 pa. The landlord, having initiated the dispute procedure, referred the review to an Independent Expert. Even though the assignee had only just taken over the lease, the review negotiations had reached the stage at which it was necessary to make a decision whether to agree £72,000 pa or allow the Independent Expert to proceed. The fees quoted by the first tenant’s surveyor for acting for the assignee on referral were in the region of £4000 plus VAT, excluding any fees payable to the Independent Expert if the determination of rent were at or greater than the landlord’s Calderbank offer.

The assignee contacted me and I was instructed to deal with the review including the dispute resolution proceedings. (Unlike most surveyors, I do not charge any extra for ‘going to arbitration’ and my total fee (exclusive of VATt) was under half the amount that the previous tenant’s surveyor would’ve charged). Before the instruction was formally confirmed, the Landlord's Surveyor telephoned the assignee direct and intimated £60,000 per annum exclusive would be acceptable.

Some information was passed on to me but otherwise I started from scratch. I inspected the premises and made enquiries I considered necessary. The Independent Expert preliminary procedures were underway. I found several points in the interpretation of wording and phrasing of the lease that did not appear to have been explored, so I issued a Calderbank offer at £57,500 pa to protect my Client’s interest on costs. The Landlord would not accept the Calderbank offer, the Independent Expert was asked to proceed.

Acting as advocate, I presented the Independent Expert with submission of seventeen pages, 7350 words. Because the Landlord owns the entire parade in which 31 is located, together with numerous other shops in Notting Hill Gate, the Landlord’s Surveyor had all the evidence. One could have the impression the landlord was invincible. However, the Landlord's Surveyor was acting as expert witness; a role that, in my view, exposes a surveyor to a need for a considerably more accuracy and compliance with technical expectations. My counter-submission, twelve pages and 5400 words, followed by re-examination (five pages, 1800 words) of the expert witness surveyor’s reply.

The determination was £53,630 per annum exclusive. The landlord paid all costs of the Independent Expert.

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Biddulph - Sale of leases to Sainsbury's

Sainsbury's wanted to develop a new supermarket in Biddulph, Staffordshire and hoped to start work in 2009-2010.

Part of the site included a parade of shops, with flats above, where I acting for two retailers - SW Cotton, Optician at 44/44a High Street, and Morning Fresh greengrocer at 46/46a High Street - in negotiations for surrender of their leases to Sainsbury's, subject to simultaneous leaseback for a few months until vacant possession was required. 

For 44/44a I negotiated almost twice as much as Sainsbury's offered originally. For the lease of 46/46a, I negotiated almost three times as much.


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Bury St Edmunds - saving £87,000 pa

Acting for a successful retailer in East Anglia, the premises are on an under-lease from Homebase Ltd. Like many large companies, Homebase has a residual estate: numerous properties that it used to occupy, but which have long since been conveyed to others. (Around the time of my involvement, according to April 2009 accounts, in the public domain, the parent company of Homebase, Home Retail Group plc, made £117.3M provision for onerous lease charges.) In this case, Homebase wanted to assign its lease with an indemnity for the remainder of the term for a difference in repairing covenants, so my Client would be no worse off.

Terms were agreed in principle. At the onset, I said I should not recommend my Client instruct solicitors until the freeholder’s consent had been obtained. The head-lease contains a surrender-back clause, also I did not want my Client to incur costs unnecessarily. Homebase applied for licence to assign, a draft was submitted by the freeholder’s solicitors, and I was told by the surveyor acting for Homebase consent had been given. However, what was not disclosed until much later on was that the freeholder had not actually given consent, because it was still awaiting reply to its enquiries about my Client’s accounts. [Whether the freeholder’s solicitors, in having issued a draft licence, was enough to deem consent was never resolved: that would’ve meant applying to court for a declaration, which Homebase would do provided contracts to assign were first exchanged, (on condition if the application failed then the transaction would abort)]

As the conveyancing progressed, I started thinking further ahead. Even if the freeholder were shown to be unreasonably withholding consent, I felt my Client would be off to a bad start if the landlord were ordered to consent against its will. No matter the impersonality of business tenancy law, the human aspect in the ongoing relationship between landlord and tenant is important. Then there was the question of personal surety. The underlessee has no surety, which would mean, on expiry of the head-lease when Homebase’s interest ends, and the under-lease is renewed direct with the freeholder, there would be no need for surety in future. (The under-lease is inside the 1954 Act so has renewal rights.) In the head-lease, the freeholder can require personal surety for a limited company assignee. My Client offered an associate company, but not a personal surety. Had the matter gone to court, it is possible the court would have ordered a personal surety with any licence to be granted, which would mean my Client would have been worse off.

The difference in repairing covenant could also cause problems. The under-lease contains a schedule of condition, whereas the head-lease is full repairing. The cost of the difference is estimated at £100,000, at least. I got Homebase to agree to extend the indemnity beyond expiry of the term into any holding-over period, but that benefit would only have practical effect if the freeholder were to serve a schedule of dilapidations whilst Homebase were around. There would be nothing to stop the freeholder waiting until Homebase were out of the picture before serving it on my Client. Similarly, if my Client did not want to renew, then its terminal obligation would be limited. Also, by taking on the head-lease, the under-lease could have been extinguished, losing the benefit in having the schedule of condition continue on renewal of the lease direct with the freeholder.

I concluded the risks outweighed the benefits, so I recommended withdrawing from the transaction.

I have agreed the 2003 and 2009 rent reviews at nil increase, a saving of about £87,000 pa.


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Trowbridge - 39 The Shires

Acting for Special Occasions (Greetings) Ltd, a well-respected greeting cards retailer, I negotiated acquisition of a new lease at 39 The Shires, Trowbridge, for a term of 10 years from October 2008. 

Special Occasions was a partnership with 4 shops when I first started acting for the Client. The business later incorporated and over years the company took on another 10 shops, a total of 14 branches net of short while experiences. Carterton, Cheltenham (for a while) Chepstow, Cirencester (for a short while), Fishponds (Bristol), Gloucester, Hereford, Leominster, Monmouth, Roath (Cardiff), Ross on Wye, Stroud, Tewkesbury, Trowbridge, Whiteladies (Bristol( (for a while), Witney, and Yate.

I dealt with rent reviews, lease renewals, and acquisition diligence, and tenancy matters arising, including assignments from the partnership to the company. My services came to an end after the business was sold to Cardzone, another greeting cards multiple retailer.

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Hunstanton - 8-16 High Street

My Client, t/a Warehouse Clearance, bought the lease of 8-16 High Street, Hunstanton - formerly occupied by Woolworths - from the administrator of Woolworths. 

Before contracts were exchanged for the acquisition, I advised on the terms and conditions of the existing lease so that my Client would know what it would be letting itself in for. Thereafter, I negotiated the outstanding rent review with the Landlord. 

In Hunstanton, I have also advised on:

24 High Street
1 Northgate Precinct
St Edmunds Terrace

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London SE1 - 62-64 Weston Street

My Client t/a Champor-Champor is an award-winning modern Malaysian restaurant close to London Bridge Station.

The Landlord owns numerous buildings in the area and the proposal of £34,000 was based on its evidence.

For the 2008 review, the Lease contained a minimum uplift so I was unable to reduce the rent below that figure, but at least I made sure the tenant did not have to pay a penny more.


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Cheylesmore - 1-2 Quinton Parade

Acting for a retailer in Cheylesmore, Coventry, I arranged referral of a rent review at 1-2 Quinton Parade to an independent expert and the revised rent was determined accordingly.

The Lease requires the tenant to pay all costs of the determination (the expert's fees) if the determination were within 10% of the landlord's proposal, so the expert took it upon himself to determine my Client should pay all costs. However, what the expert overlooked was a) the proposal was that which had been made at the date of the application to the RICS for the appointment of the expert and b) the expert's role in the procedure did not extend to responsibility for costs. At the date of my application to the RICS, the landlord had not proposed any rent so I reasoned the provision for costs did not apply. Also, I reasoned that apportioning responsibility for costs was a separate issue which was nothing whatsoever to do with the expert. It was an arrangement the parties had agreed would apply after the determination were released and not part of the actual determination process. 

Needless to say, the landlord's surveyor did not agree but, because I stuck to my guns the expert found himself in an invidious position, so the landlord said he would obtain legal opinion. Whilst waiting for the lawyers, the landlord's surveyor sent me a memorandum for my Client to sign to  confirm the new rent. I obtained my Client's signature but did not return the Memorandum to the landlord's surveyor for completion; instead I said that because the expert's determination on costs was included in the determination the entire determination was invalid pending resolution of the costs issue.  I emphasised that whereas I was not going to recommend the revised rent should not be agreed, I did not
think it should be payable until after the issue of costs was finally disposed of, so if the landlord's legal opinion did not agree with my opinion, I should arrange for my Client's solicitors to apply to the Court for a declaration. However, without prejudice, I offered to advise my Client to return the Memorandum for completion and pay the rent without further ado if the landlord would agree to pay half the expert's costs. The landlord realising the matter could take months to resolve, not to mention mounting legal costs, capitulated.

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Northampton - 26-28 The Drapery

Acting for the occupier of 26-28 The Drapery, Northampton, the tenant had been negotiating the rent review June 2006 direct with the landlord's surveyors. The 2001 passing rent was £30,000 pa and the landlord's proposal £40,500 per annum. Following negotiations the landlord made a Calderbank offer to settle at £33,750 pa. The tenant instructed me to take over negotiations and I settled the rent at £31,000 per annum.

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Stroud - 24 Merrywalks Centre

F Hinds Ltd, jewellers,  instructed me to negotiate the rent review 29 September 2000 at its branch in The Merrywalks Centre, Stroud, Gloucestershire. 

The rent was £21,500 per annum and, for various reasons, the review was up or down. The Landlord's Surveyors, Johnson Fellows, offered to settle at £19,750 pa. I referred the matter to arbitration so as to present a submission to someone with no vested in the outcome. 

The Award was £15,000 pa.  
A saving of  £6500 per annum

For the September 2005 review, F Hinds Ltd started negotiations direct with the Landlord's surveyors, this time, Alder King. The proposal was £28,500 per annum but, before I was instructed, the Landlord had offered compromise at £26,000 pa. 

This time, the Landlord had applied for arbitration. A different arbitrator to last time was appointed. On my recommendation, the arbitration proceeded. 

The Award was £24,675 per annum. 

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Weston Favell

Acting for Nolan's Jewellers in Weston Favell Shopping Centre, Northampton, the rent was £25,500 per annum and for the July 2004 review the Landlord, The Tesco British Land Property Partnership, proposed £58,800 per annum, based on an open market new letting nearby. 

(Every little helps Tesco!)  To put pressure, Tesco referred the matter to an independent expert, but the matter was held in abeyance. Initially, the lowest I could persuade the Landlord to accept was £45,500 pa, but, after the freehold of the Centre was sold, I negotiated with the surveyors for the new Landlord and the rent was agreed at £35,000 per annum. 

A saving of £23,800 per annum

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London W1 - Piccadilly Circus

Acting for the Tenant of 8 Glasshouse Street, London W1, I negotiated the rent review 24 June 2002. 

Landlord: Land Securities PLC. Landlord's Surveyors: Drivers Jonas.

The rent was £93,000 per annum and the proposal was £222,000 per annum.  

The Landlord referred the matter to arbitration, but proceedings were not pursued. I negotiated agreement at £125,000 per annum.  

In 2007, the lease came up for renewal but the Landlord wanted to include a break-clause for redevelopment. The Tenant consulted me on matters arising and I was involved in the negotiations with the Landlord.

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