Colman Coyle attend the highly successful IR Global annual conference in Barcelona

Colman Coyle attend the highly successful IR Global annual conference in Barcelona

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Howard Colman, Oksana Howard and Adam Palmer have recently returned from Barcelona where they represented Colman Coyle at the annual IR Global conference.

The conference was a great success bringing together around 350 legal and financial professionals from around the globe.

This was Adam’s first IR conference as part of the Rising Stars programme and gave him a great opportunity to meet and develop connections with other young lawyers involved in international work.

A highlight of the conference for Colman Coyle was the award of the IR Global Member of the year to Howard after a vote of the whole IR Global membership of more than 1300 members.

For Oksana the conference was a great opportunity for her to strengthen relationships with existing members and make new connections through her role as a Committee Member of the M&A Committee.

Colman Coyle are pleased to have been members of IR Global since it’s inception and look forward to many more years working together.

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COVID rent arrears – A Landlord’s success story

COVID rent arrears – A Landlord’s success story

The Court of Appeal has dismissed an appeal by commercial tenants against the High Court’s summary judgment rulings ordering them to pay rent arrears notwithstanding the COVID-19 pandemic.

Claims were issued by Bank of New York Mellon (International) Ltd and London Trocadero (2015) LLP against their respective tenants, Cine-UK Limited and Picturehouse Cinemas Ltd and others in relation to the tenants’ failures to pay arrears due under leases of the premises that they occupied.

Despite the factual differences, the legal arguments were the same. The tenants argued that the government legislation during the Covid-19 pandemic, which forced various premises to close (including cinemas) rendered those buildings “unusable” and so the tenants were not liable to pay the rent during the lockdown periods.

What did the High Court decide?

The Court decided the tenants had no real prospect of successfully defending the claims against them and granted summary judgment to the landlord. The decision is lengthy, however, in summary the key elements of the decision were:

The requirement for the tenants to keep paying rent in these circumstances did not deprive the leases of business efficacy and there was no reason the losses arising from the pandemic should be borne by the landlord.

There was no failure of consideration as the use of the premises as a cinema was not the fundamental reason why the parties had entered into the leases, it was only an expectation that the property should be used for this purpose which motivated them to do so. The leases also expressly provided for situations where the cinema would not be used as a cinema (for example destruction by any insured risks) and the burden of risk in these instances was passed to the landlord.

The tenants appealed the High Court’s judgments using the following arguments:

The Court was wrong to reject the argument that a term should be implied into the lease to the effect that the rent due under the lease should be suspended for the period during which the premises could not be occupied.

The Court was wrong to conclude that there had been no partial failure of consideration which would mean no rent was due.

What did the Court of Appeal decide?

The appeals were dismissed in full.

The Court of Appeal held that there was no failure of the basis upon which rent was due and in doing so agreed with the landlords that the rent paid was in consideration for the exclusive use of the premises rather than an assumption that the premises could be lawfully used as cinemas.

The Court reaffirmed the High Court confirming that the requirement for the tenant to pay the rent even though the premises could not be used for the permitted use “did not lead to the conclusion that the leases lack commercial or practical coherence.”

Comment

This decision provides clarity as to tenants’ contractual obligations under their leases whilst they were forced to close during the pandemic.

The Commercial Rent (Coronavirus) Act 2022 introduced an arbitration scheme for landlords and tenants who were unable to reach an agreement as to the unpaid rent or debts that had accrued during the protected period.

The deadline for applications to this scheme has now expired, therefore, landlords once again have access to their full remedies available.

Should you have any queries regarding this, please contact the Property Litigation Team at Colman Coyle on +44 (0)20 7354 3000 or enquiries@colmancoyle.com.

David Bowers

David Bowers

Associate Solicitor

Fire safety issue in residential blocks of flats

Fire safety issue in residential blocks of flats

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Howard Colman and Ross Wilson of Colman Coyle are pleased to have acted for a large group of private flat owners and a housing charity in a claim in respect of various fire safety construction issues relating to two blocks of flats in North London.

The blocks were built by a major house builder, Bellway Homes, in or around 2011 and were sold with the benefit of NHBC insurance cover.

It became apparent that there were a number of problems with the construction, in particular compartmentation issues which posed a threat to the physical health and safety of the occupants and additionally meant that it was almost impossible for the owners to sell or remortgage their properties until the remedial works had been carried out.

Proceedings were commenced in the High Court against NHBC claiming the costs of the remedial work and damages.  NHBC joined Bellway into the proceedings.

The parties subsequently agreed to participate in a mediation which was held in London where they were able to reach an amicable settlement of the dispute.

Colman Coyle are currently instructed on a number of fire safety related matters. The law in this area is complex and subject to legislative and other changes.

If you are unfortunately affected by these sorts of issues, whether as freeholder, management company or lessee we will be happy to provide advice and assistance and you can contact Ross Wilson at ross.wilson@colmancoyle.com or Howard Colman at howard.colman@colmancoyle.com.

IR Global Member of the Year 2022

IR Global Member of the Year 2022

I am delighted that my partner, Howard Colman has been nominated as one of the three candidates to be the IR Global Member of the Year 2022.

Many members will know Howard well. He is one of the outstanding original members of IR Global and has attended more conferences than any other member! Below is his submission for the award.

In addition to being very active in networking and referral activities, I believe Howard has made a unique contribution to the overall success of IR. He has consistently come up with new initiatives, several of which are now regular features of the events.

Howard was the first to arrange pre-event dinners which now are a part of every conference. He arranged a memorable visit to the Royal Courts of Justice and Inns of Court in London for the Disputes Group. He has arranged and participated in numerous networking and social events with members and very recently has launched a new initiative for golfing members.

Whilst it goes without saying that all of the candidates merit their selection I really believe it is time that Howard’s contributions to IR were recognised and I urge as many of you as possible to vote for him.

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Oksana Howard will be attending next week the IR Global ‘Dealmakers’ international business conference in Zurich

Oksana Howard will be attending next week the IR Global ‘Dealmakers’ international business conference in Zurich

Oksana Howard is looking forward to travelling to Zurich on Wednesday, 29 June 2022, to participate in the IR Global ‘Dealmakers’ conference, which will be attended by 150 legal and financial professionals from over 40 jurisdictions worldwide.

Given that Oksana regularly advises its domestic and international clients on various corporate deals and projects and because she is also a member of M&A Committee at IR, this event will provide a great opportunity to exchange experience on deal-making with her international colleagues during M&A ‘Deals Insight and DealsBash’ networking sessions and also when leading M&A roundtable discussions in relation to the current M&A market and activity in various jurisdictions. 

If you have any questions or enquiries in relation to international deals or transactions, Oksana would be happy to assist.  Please email your enquiry to  oksana.howard@colmancoyle.com

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Oksana Howard
Partner

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Colman Coyle successfully oppose commercial tenant’s 1954 Act lease renewal claim on two grounds

Colman Coyle successfully oppose commercial tenant’s 1954 Act lease renewal claim on two grounds

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Colman Coyle were instructed on behalf of the landlord of a number of properties in Hackney London, the ground floors of which had been let to a commercial tenant.  The landlord opposed the tenant’s lease renewal claim under the Landlord & Tenant Act 1954 on grounds (b) (rent arrears) and (f)  (redevelopment).  The tenant argued that ground (b) could not be made out because it had various cross claims against the landlord which exceeded the rent that was owed and also that the landlord would not be granted planning permission, so that ground (f) could not succeed.

After a four day trial, in respect of which we instructed Nathaniel Duckworth of Falcon Chambers, HHJ Monty QC decided in favour of the landlord on both grounds, and dismissed the application for a new lease.

The decision in respect of the rent claim was of particular interest because of the highly unusual set of circumstances and the background to the dispute.  However, despite the tenant’s arguments, the Judge decided that the cross claims were not sufficiently connected to the claim for rent under the lease to set up a defence of equitable set-off.  The Judge further concluded that even if there had been a right of equitable set-off, the rent was still due under the lease and ground (b) was made out.

In relation to ground (f), the Judge found that the tenant’s expert, who had been instructed by his clients to oppose the planning application, lacked impartiality.  In contrast, the landlord was able to provide evidence from independent architectural and planning experts that planning permission would indeed be given and that the requirements of ground (f) were satisfied.   The Judge preferred the evidence of our clients’ expert, who had no prior interest in the dispute.

For any assistance in a dispute of this nature or indeed where any specialist property litigation advice is required please contact Anne Brown of Colman Coyle on anne.brown@colmancoyle.com or +44 (0)20 7354 3000.

Anne Brown

Anne Brown

Senior Associate

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