The Rent Review Specialist
RICS
Market Rent
There are two types of market value: the capital value and the rental value. The matters to be taken into account for the market rental for purpose of a rent review will be defined in the actual lease and/or by reference to case-law; the market rent for a tenancy renewal is defined in s.34 and s35 Landlord and Tenant Act 1954.
For the capital value, the definition of "market value" has become institutionalised by the International Valuation Standards Council ("IVSC") and the Royal Institution of Chartered Surveyors ("RICS"). To the IVSC,“market value” means “the estimated amount for which a property should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion. "The market value shall be documented in a transparent and clear manner". The IVSC make it clear that a “willing seller” in that context is simply a seller motivated to sell at the best price obtainable on the valuation date.
In the Red Book, the RICS manual for valuers, the open market value ("OMV") is the best price obtainable in a transaction completed on the valuation date based upon the following assumptions:
(i) a willing seller (a hypothetical owner who is neither eager nor reluctant i.e. not forced but not at a price which suits only him/her).
(ii) prior to the valuation, a reasonable period to market the property and complete all the necessary legal formalities was available.
(iii) during this period, the state of the market was the same as at the date of valuation.
(iv) any bid from a special purchaser is excluded.(vi) all parties acted knowledgeably, prudently and without compulsion
In 1994, agreed with the British Bankers Association, the RICS Valuation Guidance Note introduced "Estimated Realisation Price", ("ERP") a basis of valuation to be used solely for loan valuation purposes. ERP is identical to OMV in representing an exchange price in the market place, but it differs on a number of points, two of which are fundamental. ‘Reasonably expected’ is retained in the ERP definition but the two fundamental points are:
(i) the marketing period commences on the date of valuation, with the sale completed after a reasonable marketing period to be specified by the valuer.
(ii) the market is dynamic and is not assumed to be static over the marketing period.
The opinion must be informed and given by a knowledgeable and experienced person. Valuation is not just a science, but also an art. To arrive at an opinion of value, a surveyor considers a host of factors, including intuition. In my opinion, surveyors that ignore intuition do so at their peril. The market is not always logical. Prediction may be frowned upon as esoteric, but knowing what is going to happen or at least attempting to forecast realistically is, in my opinion, just as important as basing opinion on the past or present. However, because many surveyors are focussed more on the past - for example, talking about when the market returns to 'normal' - or prejudiced by their own experience in acting for retailers whose business model depends on being able to rent shops for next to nothing - the future prospects are often ignored.
The market comprises buyers and sellers. Although surveyors do not make the market, it is the surveyor's interpretation of the behaviour and attitude of buyers and sellers that will have an often a profound influence upon the state and direction of the market. The reason surveyors have so much say is that, unlike the seller and/or buyer's opinion which is likely to be subjective and sentimental, the surveyor's opinion is objective. With 'subjective' the seller or buyer will assess the proposition in relation to the buyer's individual requirements, whereas with 'objective' the surveyor will assess the proposition in relation to the market.
In theory, objectivity is neutral; in practice it may be bias. Without training, and even then it can be difficult, it is virtually impossible for a human being to be emotionally detached. The partisan of professional standards may also overshadow. For example, chartered surveyors, as members of an institution with a code of conduct, are subject to fear of a disciplinary committee or at worst expelled. It does not help that, from my observations, the RICS is prone to issuing and revising practice statements and guidance notes for its members after the event, rather than in anticipation of market trends. One difficulty I suspect is conflict of interest between valuation surveyors and their colleagues in investment departments, and quite possibly of shareholders where surveyors operate as public or private limited companies. Ultimately, the law and the view of the courts in case-law is paramount. To quote from a textbook of Professional Negligence, the authors Jackson and Powell state "a professional is not entitled slavishly to follow the provisions of a code of practice". Per PK Finans International (UK) Ltd v Andrew Downs and Co Ltd [1992], the court's reservations about the status of the RICS guidance notes are made apparent: "I suspect that they are as much for the protection of surveyors as anything else, in that they set out various recommendations which, if followed, it is hoped will protect the surveyor from the unpleasantness of being sued". In my view, where a surveyor has informed knowledge of the market there is a duty of care to anyone whom the surveyor is advising. When a surveyor has a feeling that all is not as it should be, to keep quiet and toe the party-line is not an option.
So, since there is a difference between the value of a property and as an investment, how does one go about separating the two values? The question is by no means that easy to answer. To begin with, it is a question of how far back one should go. Arguably, one should go back approximately 30 years to the time before buyer inexperience took hold and when there was a marked difference between yields in different parts of the country. If so then what has happened to the shop investment market in the after-math of the sub-prime crisis, ensuing recession and downturn generally (2008 onwards) could be said to be a return to the 'norm'. In other words, values nowadays are not on the low side because they have fallen from the peak, but have merely reverted to the rightful level. When that approach is adopted, prospects become a lot clearer.
For the capital value, the definition of "market value" has become institutionalised by the International Valuation Standards Council ("IVSC") and the Royal Institution of Chartered Surveyors ("RICS"). To the IVSC,“market value” means “the estimated amount for which a property should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion. "The market value shall be documented in a transparent and clear manner". The IVSC make it clear that a “willing seller” in that context is simply a seller motivated to sell at the best price obtainable on the valuation date.
In the Red Book, the RICS manual for valuers, the open market value ("OMV") is the best price obtainable in a transaction completed on the valuation date based upon the following assumptions:
(i) a willing seller (a hypothetical owner who is neither eager nor reluctant i.e. not forced but not at a price which suits only him/her).
(ii) prior to the valuation, a reasonable period to market the property and complete all the necessary legal formalities was available.
(iii) during this period, the state of the market was the same as at the date of valuation.
(iv) any bid from a special purchaser is excluded.(vi) all parties acted knowledgeably, prudently and without compulsion
In 1994, agreed with the British Bankers Association, the RICS Valuation Guidance Note introduced "Estimated Realisation Price", ("ERP") a basis of valuation to be used solely for loan valuation purposes. ERP is identical to OMV in representing an exchange price in the market place, but it differs on a number of points, two of which are fundamental. ‘Reasonably expected’ is retained in the ERP definition but the two fundamental points are:
(i) the marketing period commences on the date of valuation, with the sale completed after a reasonable marketing period to be specified by the valuer.
(ii) the market is dynamic and is not assumed to be static over the marketing period.
The opinion must be informed and given by a knowledgeable and experienced person. Valuation is not just a science, but also an art. To arrive at an opinion of value, a surveyor considers a host of factors, including intuition. In my opinion, surveyors that ignore intuition do so at their peril. The market is not always logical. Prediction may be frowned upon as esoteric, but knowing what is going to happen or at least attempting to forecast realistically is, in my opinion, just as important as basing opinion on the past or present. However, because many surveyors are focussed more on the past - for example, talking about when the market returns to 'normal' - or prejudiced by their own experience in acting for retailers whose business model depends on being able to rent shops for next to nothing - the future prospects are often ignored.
The market comprises buyers and sellers. Although surveyors do not make the market, it is the surveyor's interpretation of the behaviour and attitude of buyers and sellers that will have an often a profound influence upon the state and direction of the market. The reason surveyors have so much say is that, unlike the seller and/or buyer's opinion which is likely to be subjective and sentimental, the surveyor's opinion is objective. With 'subjective' the seller or buyer will assess the proposition in relation to the buyer's individual requirements, whereas with 'objective' the surveyor will assess the proposition in relation to the market.
In theory, objectivity is neutral; in practice it may be bias. Without training, and even then it can be difficult, it is virtually impossible for a human being to be emotionally detached. The partisan of professional standards may also overshadow. For example, chartered surveyors, as members of an institution with a code of conduct, are subject to fear of a disciplinary committee or at worst expelled. It does not help that, from my observations, the RICS is prone to issuing and revising practice statements and guidance notes for its members after the event, rather than in anticipation of market trends. One difficulty I suspect is conflict of interest between valuation surveyors and their colleagues in investment departments, and quite possibly of shareholders where surveyors operate as public or private limited companies. Ultimately, the law and the view of the courts in case-law is paramount. To quote from a textbook of Professional Negligence, the authors Jackson and Powell state "a professional is not entitled slavishly to follow the provisions of a code of practice". Per PK Finans International (UK) Ltd v Andrew Downs and Co Ltd [1992], the court's reservations about the status of the RICS guidance notes are made apparent: "I suspect that they are as much for the protection of surveyors as anything else, in that they set out various recommendations which, if followed, it is hoped will protect the surveyor from the unpleasantness of being sued". In my view, where a surveyor has informed knowledge of the market there is a duty of care to anyone whom the surveyor is advising. When a surveyor has a feeling that all is not as it should be, to keep quiet and toe the party-line is not an option.
So, since there is a difference between the value of a property and as an investment, how does one go about separating the two values? The question is by no means that easy to answer. To begin with, it is a question of how far back one should go. Arguably, one should go back approximately 30 years to the time before buyer inexperience took hold and when there was a marked difference between yields in different parts of the country. If so then what has happened to the shop investment market in the after-math of the sub-prime crisis, ensuing recession and downturn generally (2008 onwards) could be said to be a return to the 'norm'. In other words, values nowadays are not on the low side because they have fallen from the peak, but have merely reverted to the rightful level. When that approach is adopted, prospects become a lot clearer.
Market Value
The definition of "market value" has become institutionalised by the International Valuation Standards Council ("IVSC") and the Royal Institution of Chartered Surveyors ("RICS"). To the IVSC,“market value” means “the estimated amount for which a property should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion. "The market value shall be documented in a transparent and clear manner". The IVSC make it clear that a “willing seller” in that context is simply a seller motivated to sell at the best price obtainable on the valuation date.
In the Red Book, the RICS manual for valuers, the open market value ("OMV") is the best price obtainable in a transaction completed on the valuation date based upon the following assumptions:
(i) a willing seller (a hypothetical owner who is neither eager nor reluctant i.e. not forced but not at a price which suits only him/her).
(ii) prior to the valuation, a reasonable period to market the property and complete all the necessary legal formalities was available.
(iii) during this period, the state of the market was the same as at the date of valuation.
(iv) any bid from a special purchaser is excluded.(vi) all parties acted knowledgeably, prudently and without compulsion
In 1994, agreed with the British Bankers Association, the RICS Valuation Guidance Note introduced "Estimated Realisation Price", ("ERP") a basis of valuation to be used solely for loan valuation purposes. ERP is identical to OMV in representing an exchange price in the market place, but it differs on a number of points, two of which are fundamental. ‘Reasonably expected’ is retained in the ERP definition but the two fundamental points are:
(i) the marketing period commences on the date of valuation, with the sale completed after a reasonable marketing period to be specified by the valuer.
(ii) the market is dynamic and is not assumed to be static over the marketing period.
The opinion must be informed and given by a knowledgeable and experienced person. Valuation is not just a science, but also an art. To arrive at an opinion of value, a surveyor considers a host of factors, including intuition. In my opinion, surveyors that ignore intuition do so at their peril. The market is not always logical. Prediction may be frowned upon as esoteric, but knowing what is going to happen or at least attempting to forecast realistically is, in my opinion, just as important as basing opinion on the past or present. However, because many surveyors are focussed more on the past - for example, talking about when the market returns to 'normal' - or prejudiced by their own experience in acting for retailers whose business model depends on being able to rent shops for next to nothing - the future prospects are often ignored.
The market comprises buyers and sellers. Although surveyors do not make the market, it is the surveyor's interpretation of the behaviour and attitude of buyers and sellers that will have an often a profound influence upon the state and direction of the market. The reason surveyors have so much say is that, unlike the seller and/or buyer's opinion which is likely to be subjective and sentimental, the surveyor's opinion is objective. With 'subjective' the seller or buyer will assess the proposition in relation to the buyer's individual requirements, whereas with 'objective' the surveyor will assess the proposition in relation to the market.
In theory, objectivity is neutral; in practice it may be bias. Without training, and even then it can be difficult, it is virtually impossible for a human being to be emotionally detached. The partisan of professional standards may also overshadow. For example, chartered surveyors, as members of an institution with a code of conduct, are subject to fear of a disciplinary committee or at worst expelled. It does not help that, from my observations, the RICS is prone to issuing and revising practice statements and guidance notes for its members after the event, rather than in anticipation of market trends. One difficulty I suspect is conflict of interest between valuation surveyors and their colleagues in investment departments, and quite possibly of shareholders where surveyors operate as public or private limited companies. Ultimately, the law and the view of the courts in case-law is paramount. To quote from a textbook of Professional Negligence, the authors Jackson and Powell state "a professional is not entitled slavishly to follow the provisions of a code of practice". Per PK Finans International (UK) Ltd v Andrew Downs and Co Ltd [1992], the court's reservations about the status of the RICS guidance notes are made apparent: "I suspect that they are as much for the protection of surveyors as anything else, in that they set out various recommendations which, if followed, it is hoped will protect the surveyor from the unpleasantness of being sued". In my view, where a surveyor has informed knowledge of the market there is a duty of care to anyone whom the surveyor is advising. When a surveyor has a feeling that all is not as it should be, to keep quiet and toe the party-line is not an option.
So, since there is a difference between the value of a property and as an investment, how does one go about separating the two values? The question is by no means that easy to answer. To begin with, it is a question of how far back one should go. Arguably, one should go back approximately 30 years to the time before buyer inexperience took hold and when there was a marked difference between yields in different parts of the country. If so then what has happened to the shop investment market in the after-math of the sub-prime crisis, ensuing recession and downturn generally (2008 onwards) could be said to be a return to the 'norm'. In other words, values nowadays are not on the low side because they have fallen from the peak, but have merely reverted to the rightful level. When that approach is adopted, prospects become a lot clearer.
In the Red Book, the RICS manual for valuers, the open market value ("OMV") is the best price obtainable in a transaction completed on the valuation date based upon the following assumptions:
(i) a willing seller (a hypothetical owner who is neither eager nor reluctant i.e. not forced but not at a price which suits only him/her).
(ii) prior to the valuation, a reasonable period to market the property and complete all the necessary legal formalities was available.
(iii) during this period, the state of the market was the same as at the date of valuation.
(iv) any bid from a special purchaser is excluded.(vi) all parties acted knowledgeably, prudently and without compulsion
In 1994, agreed with the British Bankers Association, the RICS Valuation Guidance Note introduced "Estimated Realisation Price", ("ERP") a basis of valuation to be used solely for loan valuation purposes. ERP is identical to OMV in representing an exchange price in the market place, but it differs on a number of points, two of which are fundamental. ‘Reasonably expected’ is retained in the ERP definition but the two fundamental points are:
(i) the marketing period commences on the date of valuation, with the sale completed after a reasonable marketing period to be specified by the valuer.
(ii) the market is dynamic and is not assumed to be static over the marketing period.
The opinion must be informed and given by a knowledgeable and experienced person. Valuation is not just a science, but also an art. To arrive at an opinion of value, a surveyor considers a host of factors, including intuition. In my opinion, surveyors that ignore intuition do so at their peril. The market is not always logical. Prediction may be frowned upon as esoteric, but knowing what is going to happen or at least attempting to forecast realistically is, in my opinion, just as important as basing opinion on the past or present. However, because many surveyors are focussed more on the past - for example, talking about when the market returns to 'normal' - or prejudiced by their own experience in acting for retailers whose business model depends on being able to rent shops for next to nothing - the future prospects are often ignored.
The market comprises buyers and sellers. Although surveyors do not make the market, it is the surveyor's interpretation of the behaviour and attitude of buyers and sellers that will have an often a profound influence upon the state and direction of the market. The reason surveyors have so much say is that, unlike the seller and/or buyer's opinion which is likely to be subjective and sentimental, the surveyor's opinion is objective. With 'subjective' the seller or buyer will assess the proposition in relation to the buyer's individual requirements, whereas with 'objective' the surveyor will assess the proposition in relation to the market.
In theory, objectivity is neutral; in practice it may be bias. Without training, and even then it can be difficult, it is virtually impossible for a human being to be emotionally detached. The partisan of professional standards may also overshadow. For example, chartered surveyors, as members of an institution with a code of conduct, are subject to fear of a disciplinary committee or at worst expelled. It does not help that, from my observations, the RICS is prone to issuing and revising practice statements and guidance notes for its members after the event, rather than in anticipation of market trends. One difficulty I suspect is conflict of interest between valuation surveyors and their colleagues in investment departments, and quite possibly of shareholders where surveyors operate as public or private limited companies. Ultimately, the law and the view of the courts in case-law is paramount. To quote from a textbook of Professional Negligence, the authors Jackson and Powell state "a professional is not entitled slavishly to follow the provisions of a code of practice". Per PK Finans International (UK) Ltd v Andrew Downs and Co Ltd [1992], the court's reservations about the status of the RICS guidance notes are made apparent: "I suspect that they are as much for the protection of surveyors as anything else, in that they set out various recommendations which, if followed, it is hoped will protect the surveyor from the unpleasantness of being sued". In my view, where a surveyor has informed knowledge of the market there is a duty of care to anyone whom the surveyor is advising. When a surveyor has a feeling that all is not as it should be, to keep quiet and toe the party-line is not an option.
So, since there is a difference between the value of a property and as an investment, how does one go about separating the two values? The question is by no means that easy to answer. To begin with, it is a question of how far back one should go. Arguably, one should go back approximately 30 years to the time before buyer inexperience took hold and when there was a marked difference between yields in different parts of the country. If so then what has happened to the shop investment market in the after-math of the sub-prime crisis, ensuing recession and downturn generally (2008 onwards) could be said to be a return to the 'norm'. In other words, values nowadays are not on the low side because they have fallen from the peak, but have merely reverted to the rightful level. When that approach is adopted, prospects become a lot clearer.
RICS Fees
In connection with the dispute resolution procedure, such as the appointment of an Independent Expert or nomination of an Arbitrator, with effect from 1 March 2017 the application fee payable to the RICS is £425.00 (inclusive of VAT 20%)
Previously:
2000 April - £275 inclusive of VAT
2002 August - £300 inclusive of VAT
2006 June - £320 inclusive of VAT
2008 April - £340.00 inclusive VAT
2009 April 15 - £333 inclusive of VAT (15%)
2009 June 15 - £353 inclusive of VAT
2010 to 3 January 2011 - £361.00 inclusive of VAT (17.5%)
2011 January 4 - to 30 September 2015 - £369 inclusive of VAT (20%)
2015 October 1 - £395.00 (inclusive of VAT)
Currently:
1 March 2017 - £425.00 (inclusive of VAT)
Previously:
2000 April - £275 inclusive of VAT
2002 August - £300 inclusive of VAT
2006 June - £320 inclusive of VAT
2008 April - £340.00 inclusive VAT
2009 April 15 - £333 inclusive of VAT (15%)
2009 June 15 - £353 inclusive of VAT
2010 to 3 January 2011 - £361.00 inclusive of VAT (17.5%)
2011 January 4 - to 30 September 2015 - £369 inclusive of VAT (20%)
2015 October 1 - £395.00 (inclusive of VAT)
Currently:
1 March 2017 - £425.00 (inclusive of VAT)
Dispute Resolution
Depending on the nature of the dispute, there are various methods of resolution.
At rent review, the usual methods, a process known as referral, are arbitration and independent expert determination.
On tenancy expiry/.renewal, the usual procedure is the court, or less commonly PACT (Professional Arbitration on Court Terms). In some instances, usually involving building construction disputes, the court will encourage ADR (alternative dispute resolution), mediation, and conciliation.
Arbitration is the determination of a dispute by one or more independent and impartial third parties, rather than by the court.
Arbitrators are appointed by the parties in accordance with the terms of the arbitration agreement or in default by the court. At rent review, the arbitration agreement is usually the lease. The arbitrator may be appointed by agreement of the parties or in default by the President of the Royal Institution of Chartered Surveyors, ("RICS") or in some leases by the Law Society or the Chartered Institute of Arbitrators. The RICS provides a dispute resolution service whereby on application by one or both parties the RICS appoints a suitably qualified person, usually a chartered surveyor, as arbitrator. A fee would be charged for the service. The arbitrator's charges are a matter for the arbitrator.
Arbitrators derive their authority from the Arbitration Act 1996. In outline, the arbitrator's determination, known as an award, must lie at or between the extremes of evidence presented by the parties. Whether the strict rules of evidence apply would be a matter for the parties to decide with the agreement of the arbitrator. Depending upon in what capacity the parties themselves or their advisers are acting, the procedure involves report and/or submission, counter-submission and/or points of reply, and possibly further examination. At rent review, the procedure is generally in writing, but oral hearings may be used as well for more complex matters. The arbitrator will inspect the premises and any comparables, ask questions of the parties or possibly make his own enquiries, subject to disclosing finding to the parties and inviting comment, deliberate then subject to prior payment f his costs publish the award.
At rent review, there may be two awards: the first award on rent, the final award on costs.
The matter of costs will depend on the award and any Calderbank offers. The general rule that costs follow the event does not have to apply; it would depend upon the circumstances. The arbitrator can award costs (any agreement in the lease re the parties' liability for costs is void under the Arbitration Act 1996) including the cost of the parties' themselves. The only grounds for appeal is on a point of law, misconduct or serious irregularity.
An Independent Expert derives his authority from the lease so parties' responsibility for costs will vary depending upon the wording of the lease. Where the lease is silent then unless the parties agree to share the costs, the party that made the application is usually responsible for the whole of the Independent Expert's costs.
At rent review, the usual methods, a process known as referral, are arbitration and independent expert determination.
On tenancy expiry/.renewal, the usual procedure is the court, or less commonly PACT (Professional Arbitration on Court Terms). In some instances, usually involving building construction disputes, the court will encourage ADR (alternative dispute resolution), mediation, and conciliation.
Arbitration is the determination of a dispute by one or more independent and impartial third parties, rather than by the court.
Arbitrators are appointed by the parties in accordance with the terms of the arbitration agreement or in default by the court. At rent review, the arbitration agreement is usually the lease. The arbitrator may be appointed by agreement of the parties or in default by the President of the Royal Institution of Chartered Surveyors, ("RICS") or in some leases by the Law Society or the Chartered Institute of Arbitrators. The RICS provides a dispute resolution service whereby on application by one or both parties the RICS appoints a suitably qualified person, usually a chartered surveyor, as arbitrator. A fee would be charged for the service. The arbitrator's charges are a matter for the arbitrator.
Arbitrators derive their authority from the Arbitration Act 1996. In outline, the arbitrator's determination, known as an award, must lie at or between the extremes of evidence presented by the parties. Whether the strict rules of evidence apply would be a matter for the parties to decide with the agreement of the arbitrator. Depending upon in what capacity the parties themselves or their advisers are acting, the procedure involves report and/or submission, counter-submission and/or points of reply, and possibly further examination. At rent review, the procedure is generally in writing, but oral hearings may be used as well for more complex matters. The arbitrator will inspect the premises and any comparables, ask questions of the parties or possibly make his own enquiries, subject to disclosing finding to the parties and inviting comment, deliberate then subject to prior payment f his costs publish the award.
At rent review, there may be two awards: the first award on rent, the final award on costs.
The matter of costs will depend on the award and any Calderbank offers. The general rule that costs follow the event does not have to apply; it would depend upon the circumstances. The arbitrator can award costs (any agreement in the lease re the parties' liability for costs is void under the Arbitration Act 1996) including the cost of the parties' themselves. The only grounds for appeal is on a point of law, misconduct or serious irregularity.
An Independent Expert derives his authority from the lease so parties' responsibility for costs will vary depending upon the wording of the lease. Where the lease is silent then unless the parties agree to share the costs, the party that made the application is usually responsible for the whole of the Independent Expert's costs.