Real Estate Legal Update - Spring 2023

A welcome from the editor…

Welcome to the latest edition of the Real Estate Legal Update.

Case Law update:

This quarter, the supreme courts both in England and Wales and in Scotland have been busy. We look at the meaning of land having been ‘identified for potential development’ in the context of town or village green applications; what happens when foreign companies owning land in England and Wales are dissolved; what you can do about it when hundreds of people are peering in through the windows of your swanky London apartment on a daily basis; modifying restrictive covenants in both a freehold and a leasehold context; and the duties a lender owes a borrower during and after the lifetime of a loan agreement.

Landlord and Tenant round-up:

We look at whether a tenant is entitled to relief from forfeiture in the context of a contractual option to take a new lease and we consider the Supreme Court’s ‘pay now, argue later’ compromise in a dispute about service charge certification.

Planning Points:

Looking at the Supreme Court’s interpretation of a planning condition requiring roads to be dedicated as public highways.

Tax Tips:

Covering the final word on whether VAT is payable on break payments. 

---

CASE LAW UPDATE

Development – Town or Village Green: R (on the application of Bellway Homes Ltd) v Kent County Council

Key points:

• Registration of land as a town or village green (TVG) means the landowner’s ability to develop the land is severely restricted
• Legislation introduced in 2013 made it more difficult for applications for registration to be made where certain ‘trigger events’ had taken place
• Trigger events include a planning application having been made or the land in question having been identified for potential development in a local authority’s development or neighbourhood plan

In 2019, a local action group applied to KCC to register land at Two Fields, Westbere as a TVG. BHL owned part of the application land, which fell within the Canterbury District Local Plan.

The Local Plan included Policy OS6 relating to ‘Green Gaps’ (areas of land outside urban areas which are subject to restraints on development to prevent coalescence between separate settlements). The policy statement said that development ‘will be permitted’ where it didn’t ‘significantly affect the open character of the Green Gap or lead to coalescence between existing settlements, or result in new isolated and obtrusive development within the Green Gap’.BHL argued that the fact that the land was included in a Green Gap meant it should be treated as having been identified for potential development – so a trigger event had occurred meaning the TVG application should be rejected.KCC decided that a trigger event had not occurred and permitted the TVG application. BHL applied for judicial review, but was unsuccessful.

Practical implications:

The Court was not prepared to stretch the interpretation of the meaning or the purpose of Policy OS6 so as to find that the land had been ‘identified for potential development’. BHL’s emphasis on the words ‘development will be permitted’ did not change the position.

How land is allocated for planning purposes can be key when it comes to buying and selling development sites. For further advice, please contact a member of our Planning Team. 

Dissolution – overseas company as owner: Alison Court Management Company Ltd v Crown Estate Commissioners

Key points

• When a foreign company that owns land in England and Wales is dissolved, that land ‘escheats’ to the Crown – effectively, the freehold estate is extinguished
• When a company registered in England and Wales is dissolved, any land it owns passes to the Crown as ‘bona vacantia’ or ‘ownerless goods’
• The Crown can then disclaim title to bona vacantia land, which then escheats to the Crown
• The Court has a discretionary power under the Law of Property Act 1925 to make a vesting order, vesting the title in the applicant if it can establish its entitlement to the land

Alison Court is a block of nine flats, developed in the early nineties by a group of companies. The site comprised three registered titles, two of which were owned by a Jersey-registered company and the third by a company registered in England and Wales.

In 1991, a management company (ACMCL) was incorporated and managed Alison Court and in 1996, the freehold titles were purportedly transferred to ACMCL. ACMCL continued to manage Alison Court, spending money on maintaining the estate and the common parts in the usual way.

By 1997, both the Jersey and English companies had been dissolved and it came to light, when one of the flat owners wanted to sell their flat, that the freeholds had never been transferred to ACMCL. The land owned by the Jersey company had passed escheat to the Crown, and the Crown disclaimed the title held by the English company, so that escheated too.In February 2022, ACMCL successfully applied to the High Court for an order to vest the titles to the land in it.

Practical implications:

The Court has a discretionary power when it comes to granting vesting orders in these circumstances, but there are also certain conditions that must be met. The first is that the legal estate has actually determined by virtue of the dissolution of the owner; the second is that an applicant must establish their entitlement to the properties had the estate not been determined. In this case, there were no competing claims to the land and although there was scant evidence as to the (uncompleted) conveyancing process, the Court found there was an agreement that the land would be transferred to ACMCL. It was already managing the flats and common parts and doing the things management companies usually do and everyone was under the impression that the transfer had been completed.

Dissolution – overseas company as trustee: Hamilton v Attorney General

Key points:

• As we saw in the previous case, land in England or Wales that is owned by a foreign company will ‘escheat’ to the Crown if that company is dissolved
• However, where the land is held on trust for a beneficiary, it doesn’t escheat – rather, it vests in the Crown ‘bona vacantia’ subject to the trust
• This means that if the company is restored to the register, the land doesn’t automatically revest in the company
• A party who wants the land vesting in them has to follow a different statutory process under the Trustee Act 1925, rather than under the Law of Property Act

This case relates to competing claims to ownership of Walton Castle in Somerset, a luxury venue offering weddings, corporate events and holiday accommodation. It was originally purchased by Mr H, but was later transferred to Mrs H, one of the claimants in the litigation. Mrs H established and then operated the events business.

In 2013, Mrs H sold the castle to the other claimant in this case, a Guernsey-registered company, WPL, which was ultimately owned by Mr H. Mr H was declared bankrupt in 2019, so his trustees in bankruptcy effectively controlled WPL. WPL held the castle on trust for itself and Mrs H (who had a 61% share). WPL was dissolved in 2020, although it was restored to the register in Guernsey a year later. The trustees in bankruptcy therefore claimed that the title to the castle had revested in it by virtue of the restoration of WPL and Mrs H claimed the castle should be vested in her.

The Court found that the castle did not automatically revest in WPL when it was restored to the register and WPL was not entitled to have the land vested in it under the Law of Property Act, because the legal estate had not escheated/determined and that Act was not engaged. The Court also found that Mrs H had sufficient standing to apply for a vesting order, by virtue of her beneficial interest and it was prepared to exercise its discretion and vest the property in her.

Practical implications:

The Court has a very wide discretion under the Trustee Act and can exercise its power to grant a vesting order as it sees fit, having regard to all the circumstances of the case. The Court is not necessarily required to restore the position to exactly what it was prior to the dissolution (so, in this case, by revesting the property in WPL subject to the trust in favour of Mrs H), but equally, it is not necessarily required to vest the asset in the person beneficially entitled to it (here, Mrs H).

It's rare to see cases where there are competing claims for vesting orders, but the Court will look to do justice in all the circumstances, which will, of course, be different each time. However, it is important to be aware of the different regimes that apply when companies are dissolved and what happens to any property it owns either on trust or beneficially. It’s also interesting to note that the courts have some flexibility on whether to apply English common law or the law of the jurisdiction in which a foreign company is registered in such disputes, but perhaps unsurprising that judges tend to stick to English law! 

Nuisance – overlooking: Fearn & Others v Board of Trustees of the Tate Gallery

Key points:

• Use of land which wrongfully interferes with the ordinary use and enjoyment of neighbouring land can amount to a private nuisance…
• …but to be actionable, that interference must be substantial, judged by the standards of the ordinary person
• Even then, there is no liability if the defendant is just making common and ordinary use of its own land, having regard to the character of the locality
• Successful claimants could be entitled to damages and/or an injunction

In 2016, an extension (the Blavatnik Building) was opened at Tate Modern, which included a viewing platform at 10^th floor level providing panoramic views of London. Visitors to the gallery using the platform could also see (and indeed, actively looked) into a number of the Neo Bankside apartments built nearby. The apartments in question were distinctive, in that they featured wall-to-ceiling glazing. Occasionally, visitors used binoculars to look in through the windows, and many others took photographs and posted them online.

Five of the apartment owners (F) brought claims in the High Court against BTTG alleging nuisance, seeking either an injunction requiring BTTG to prevent the public looking into the apartments from the relevant area of the platform, or alternatively, damages.

The High Court dismissed the claims in 2019, although required an undertaking from BTTG that it would put up signage and restrict the time the platform could be used (it was open every day and could accommodate 300 visitors a day). The High Court did find that there could be a cause of action in private nuisance for overlooking, but that it was not actionable in this case due to the distinctive nature of the apartments – in buying them, F and the other apartment owners had effectively accepted an increased risk of being overlooked and that they could have mitigated this risk by putting up curtains or blinds.

F appealed, but in 2022 the Court of Appeal dismissed the appeal. That court took a different view to the High Court, disagreeing that overlooking could amount to a private nuisance at all.

Undeterred, F appealed to the Supreme Court, which has now found, in a 3 – 2 majority decision, in favour of F. The Supreme Court considered the Tate’s use of its land for the purposes of the viewing platform as exceptional, rather than a necessary or ordinary incident of operating an art gallery.

Practical implications:

So, how is the situation to be remedied? This has been left to the parties to come to an agreement, failing which, it will be another trip to the High Court. In the meantime, the Supreme Court has been clear that there was no reason why use of land in an unusual way resulting in this sort of constant visual intrusion couldn’t amount to nuisance, although it would be rare, so this much-anticipated decision is something to be aware of, but not necessarily alarmed by.

Restrictive covenants – planning permission not required: Re Johnson

Key points:

• The Lands Chamber of the Upper Tribunal has jurisdiction to discharge or modify restrictive covenants affecting the use and development of land or buildings on it, if certain statutory grounds are made out
• One of the most common grounds is that the covenants impede the reasonable use of the burdened land
• The grant of a planning permission for change of use or for development can be persuasive when determining what is reasonable use or development, but sometimes permission isn’t required

J owned and lived in a two-storey detached property in Aldridge, Walsall. The property was subject to two restrictive covenants, imposed in 1937 and 1965, both effectively preventing business use.

Mrs J wanted to run an Ofsted-registered childminding business from the property, having had considerable experience in the education sector providing before- and after-school facilities. The intention was for the business to accommodate up to six children.

The Local Planning Authority had advised that planning permission would not be needed, so J did not apply for it, but did apply to the Upper Tribunal for the modification or discharge of the covenants, on the ground that they impeded a reasonable use of the property and did not secure practical benefits of substantial value or advantage to anyone with the benefit of them.

J had initially applied for just the 1937 covenant to be modified; this drew some objections from a couple of nearby residents, but they could not produce any evidence that their properties actually benefited from the covenant.

There were no objectors in relation to the current application, so the Tribunal only had to consider whether the covenants did impede a reasonable use of the property. Despite raising some initial concerns about increased traffic and potential parking issues, all of which J addressed through diligent research with the local police and through further information about how the business would actually operate day-to-day, it found that they did and ordered the modification of the covenants to allow for the operation of an Ofsted-registered childminding business.

Practical implications:

This case is a useful reminder that a proposed change of use may not require planning permission, but may breach restrictive covenants on the title, so these still need to be addressed. Anyone wishing to object to applications for discharge or modification must be able to demonstrate that their property does actually benefit from the restrictions. This can be difficult to ascertain, as, unlike the burden, the benefit of covenants is not usually recorded on the title register to a property. 

Restrictive covenants – planning permission not applied for: Naidu & Another v Morton & Others

Key points:

• Where planning permission for development or change of use is required, obtaining it in advance of an application for discharge or modification of a covenant can also be useful in addressing concerns of a structural nature

N owned an end of terrace three-storey townhouse in a tranquil and spacious development in Weybridge. The property was subject to covenants, imposed in 1989, restricting alterations to the external plan or elevation of the building without consent (the building covenant), and preventing business use (the business covenant). N wanted to build a side extension to provide more living space at all three levels for them and their children, and to better accommodate them working from home and potentially running their own business.

N applied to the Upper Tribunal for discharge or modification of the covenants on various grounds in November 2020, before they had submitted a planning application. N did not submit any supporting details of the proposed extension. The residents of the other houses in the terrace objected to the application, the resident with the greatest concerns being M, who owned the immediately adjoining property.

The following year, N made a pre-application enquiry to the Local Planning Authority; they received a supportive response and subsequently sent this, and various floor and elevation plans to M and the other objectors in February 2022. N also had a planning statement prepared, which addressed the likely impact on the objectors, which they also sent to the objectors. N later applied for planning permission.

In relation to the business covenant, the Tribunal found that it did not prevent N doing what they wanted to do – i.e. working from home or running a business from their home. N had taken a precautionary approach in including this covenant within its application, but it did not need to be modified.In relation to the building covenant, the Tribunal considered N’s proposals to build the extension to be a reasonable use of their property, even in the absence of formal planning permission, so the next question was whether the covenant secured practical benefits of significant value or advantage to the objectors.

The immediately adjoining property, situated up hill from N’s property, was likely to benefit from structural support provided by retaining walls in the gardens between the two properties, and works would need to be carried out to the walls if the extension was to go ahead. This was an issue of significant concern to the Tribunal and the Tribunal refused to modify the building covenant before N had gone through the planning process.

Practical implications:

It’s not the end of the road for N, as they can make another application for modification if they obtain planning permission, but one of the points made by the objectors was that N had provided very little in the way of detail – and nothing in the way of direct communication – throughout. The Tribunal suggested a useful lesson for anyone in N’s position, which is to engage with affected neighbouring or nearby owners and provide as much information as possible at an early stage. 

Restrictive covenants – leases: Schwarzschild Ochs Pty Ltd v Concerto Properties Ltd

Key points:

• Whilst we usually see applications for discharge or modification of restrictive covenants being made in relation to freehold land, the statutory procedure is also available for tenants of leases for more than 40 years, where more than 25 years have expired
• The grounds – and therefore the hurdles to be overcome – are the same whether the application is made in relation to freehold or leasehold land

SOPL was a fabric wholesaler operating out of the ground floor and basement of premises at 208-210 Great Portland Street. It occupied the premises on the terms of a long sub-underlease granted in 1995. The lease contained a tenant covenant restricting the use of the premises to a shop and showroom or, provided it obtained the landlord’s consent, another business use within Class B1 of the Town and Country Planning (Use Classes) Order 1987.SOPL moved out in 2015 with a view to assigning the lease or subletting. A lease was granted to a retailer of health and beauty products, but that tenant went into administration in 2018 and vacated the premises. SOPL marketed the premises for a period, but only received interest from medical or quasi-medical users and various attempts to get the consent of the landlord (CPL) failed. SOPL then applied to the Upper Tribunal to get the user covenant in the lease modified on the basis that it impeded a reasonable use of the premises. The modification it sought would also permit, with the landlord’s consent, use for the provision of medical or health services and office space.CPL objected to the application; it was keen to maintain control over the use and operation of the premises and was mindful of the approach of the freeholder, described as ‘a very active landlord, liable to take issue with the slightest breach…and aggressively pursue legal action against tenants’, so didn’t want to risk conflict between the permitted use under the lease and the terms of its own headlease.

The Tribunal concluded that the covenant did impede a reasonable use of the premises, even though SOPL hadn’t identified a specific tenant with a specific use requirement (which it was not required to do under the statute in any event). It then had to consider whether the covenant provided CPL with a practical benefit of substantial value or advantage. Ultimately, CPL’s objections centred around its ability to control the use of the premises, which it argued would be diminished if the covenant was modified – it claimed this was a practical benefit. The Tribunal did not agree and pointed out that the rest of the lease contained general terms that sufficiently regulated a tenant’s use of the premises, that would cover medical or health uses.

Practical implications:

Hopefully this will give SOPL sufficient flexibility to finally assign its lease, but from a general perspective, it is interesting to see the statutory modification process used in a leasehold context and the different considerations that the Tribunal has to take into account.

Security – duty of lender: Morley (t/a Morley Estates) v Royal Bank of Scotland plc

Key points:

• Lenders have a duty to provide banking services with reasonable care and skill (section 13, Supply of Goods and Services Act 1982)
• This duty effectively ends when a loan agreement expires
• After that, a lender has a more limited duty

M was a property developer. In 2006, he entered into a loan agreement with RBS, which enabled him to borrow up to £75 million. The loan was secured against M’s property portfolio, valued at around £95 million at that time. The loan agreement expired in 2009, by which point M was in breach of loan to value covenants (the value of his portfolio had dropped to around £60 million) and could not pay off the loan.

Rather than seek to enforce the security, RBS entered into what turned out to be protracted negotiations with M, with a view to coming to an agreement, failing which, RBS would appoint receivers. Eventually, in August 2010, a deal was agreed whereby a number of the properties were transferred to RBS’s distressed lending arm (at above their market value) and some were retained by M in return for a payment to RBS of £20.5 million. RBS agreed to write off the remaining debt of £10 million and released its security.

Several years later, M issued proceedings against RBS, claiming the bank had acted in breach of its statutory duty to exercise reasonable skill and care in the provision of banking services and in breach of its more general duty of good faith. He also claimed he was coerced into agreeing the deal with RBS, alleging intimidation and duress, which rendered the agreement voidable.M failed in both the High Court and the Court of Appeal, and the Supreme Court has refused further leave to appeal.

Practical implications:

This is a useful decision for lenders, clarifying the extent of their duty of care in relation to the provision of banking services, in this case the loan facility, which effectively extended to making the funds available to the borrower.

In relation to the more general duty of good faith, a breach of this would require a lender to act vexatiously or contrary to its legitimate commercial interests. The courts found that RBS had simply sought to exercise its contractual rights to recover the loan through lawful means.M’s claims of intimidation and economic duress were also dismissed; the Court of Appeal was satisfied that M had entered into the deal of his own free will (and with the benefit of legal advice) and had not been coerced. Equality of bargaining power was relevant here, although in other cases, a borrower’s position may be very different and could lead to the courts taking a different view.

---

LANDLORD & TENANT ROUND UP

Relief from forfeiture – option to renew lease: Hush Brasseries Ltd v RLUKREF Nominees (One) Ltd & Another

Key points:

• Forfeiture is a way for a landlord to bring a lease to an end in certain circumstances, often related to tenant default
• A tenant can apply to the court for relief from forfeiture and, if successful, the lease is reinstated
• Relief can also be granted in relation to other proprietary interests a tenant may have in addition to the lease itself

HBL had a 25-year lease of premises it operated as a restaurant and hospitality business. The lease term was due to expire in 2024, but HBL had an option to ask the landlord for a new lease (to last until 2030) on the same terms, provided it gave the landlord notice.

The option could be determined if any of the forfeiture events specified in the lease occurred – these included the rent remaining unpaid for 21 days or more.

During the pandemic, HBL fell behind on its rent and, in July 2021, the landlord (RNOL) served notice to terminate the option, although not to forfeit the lease. The parties reached a settlement over the rent arrears and HBL commenced proceedings to obtain relief from the termination of the option. The High Court decided to award relief to HBL on the basis that the option created an equitable interest in the property and that it would be unconscionable for RNOL to retain the benefit of terminating the option, particularly when it had not sought to forfeit the lease.

Practical implications:

It is common for tenants to have the option to renew a lease at the end of the initial term. This case provides useful guidance on the nature of the interest an option gives a tenant. For further advice on forfeiture and relief, contact a member of our Property Litigation Team. 

Service charge – certification: Sara & Hossein Asset Ltd v Blacks Outdoor Retail Ltd

Key points:

• Tenants in multi-let buildings will often pay a ‘fair and reasonable’ proportion of the total service charge costs incurred in relation to that building, with landlords providing a certificate at the end of each service charge year, setting out the total cost of expenditure and any balancing payment
• Leases usually provide that such certificates are conclusive, unless there is a mathematical error or fraud

Readers may recall this case, which we have followed from the High Court all the way, now, to the Supreme Court.BORL was the tenant of retail premises in Liverpool. The lease included a service charge, which BORL was required to pay quarterly on account and each year, SHAHL was required to provide a certificate showing the total amount of the cost, and the sum payable by BORL, which was calculated by reference to the net internal floor area of the premises. The lease provided that ‘in the absence of manifest or mathematical error or fraud’ such certificates were ‘conclusive’.In the last year of the lease term, BORL was charged over £400,000 in service charge, which was eight times what it had been charged in the previous year! BORL sought to argue that some of the expenditure set out in the certificate was not within the scope of the service charge as defined in the lease.

SHAHL claimed for the unpaid service charge, but was unsuccessful in the High Court, which found that although the certificate was conclusive as to the amount of costs incurred, it was not conclusive as to the question of whether those costs, as a matter of principle, fell within the scope of the service charge. The Court of Appeal overturned the decision in 2021, finding that, without express wording in the lease or a necessary implication, the two elements could not be separated. BORL appealed, and the Supreme Court has come to something of a compromise between the parties. It has found that the certificate was conclusive as to the amount BORL had to pay, but that did not preclude BORL from disputing its liability to pay.

Practical implications:

As we said in relation to the previous decisions, fairly drafted service charge provisions will give tenants the ability to challenge service charge certificates or at least ask for further information on both the amount and the nature of the costs that are included, and this is something tenants should be mindful of when negotiating new leases. However, in existing leases, there may be no ability to make a meaningful challenge.It remains to be seen whether BORL has the appetite to go back to the High Court and start again, not least because its cash flow has taken a hit with the Supreme Court’s direction to ‘pay now, argue later’ and in attempting to strike a balance between the parties, it could be said that the Court’s decision on what is ‘conclusive’ is itself somewhat…well…inconclusive. 

---

PLANNING POINTS

Planning conditions – dedication of highway: DB Symmetry Ltd v Swindon Borough Council

Key points:

• A local planning authority (LPA) can grant planning permission subject to conditions
• Case law has established that due to their unilateral nature, in order to be lawful, any planning conditions must be imposed for a planning (rather than an ulterior) purpose, must fairly and reasonably relate to the development permitted and must not be so unreasonable that no reasonable LPA could have imposed them
• If asked to interpret planning conditions, the courts will consider what a reasonable reader, equipped with some knowledge of planning law and practice, would understand the words to mean when looking at the condition in the context of the other planning conditions and the planning permission as a whole

In 2015, SBC granted outline planning permission for development at a site forming part of the proposed ‘New Eastern Villages’ (NEV) north-east of Swindon. The permission was subject to 50 conditions.This dispute is over condition 39, which related to roads. It was critically important that the various development sites within the NEV should be connected with each other and with the wider road network. Condition 39 provided that ‘the proposed access roads…shall be constructed in such a manner as to ensure that each unit is served by a fully functioning highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and…use’. A section 106 agreement was entered into at the time the permission was granted, but it did not require the access roads to be dedicated as public highways.DBSL bought the site not long after planning permission had been granted and applied for a certificate of lawful use or development confirming that the formation and use of roads as private (rather than public) access roads was lawful. SBC refused to grant the certificate.DBSL’s position was that condition 39 simply related to the physical manner and timing of the construction of the roads and did not require them to be dedicated for public use. The Planning Inspector agreed with DBSL, but the High Court then allowed an appeal by SBC. The Court of Appeal overturned that decision, and the Supreme Court has now dismissed a further appeal by SBC.

Practical implications:

The Supreme Court made it clear that even if the wording of condition 39 could have been interpreted as requiring dedication of the roads as public highways, this would have been unlawful. There is an important difference between a planning condition (imposed unilaterally) and a planning obligation (entered into by a developer or landowner voluntarily). The appropriate way to ensure a landowner grants public rights of way over land is by agreement, either under section 106 of the Town and Country Planning Act 1990 or under section 278 of the Highways Act 1980. Alternatively, an LPA could exercise its compulsory purchase powers and pay compensation to the landowner.

For further advice, please contact a member of our Planning Team.

---

TAX TIPS

VAT – break payments: Ventgrove Ltd v Kuehne & Nagel Ltd

Key points:

• VAT is a tax on the supply of goods and services (including, in certain circumstances, the supply of land)
• Historically, payments made to terminate agreements for the supply of goods or services were generally outside the scope of VAT
• After a confusing sequence of announcements from HMRC following decisions of the European Court of Justice on cancellation fees payable for cancelling mobile phone contracts, HMRC published updated guidance on its policy on early termination fees and similar payments, which came into effect on 1 April 2022
• The Scottish courts have taken this into account in an appeal by a tenant seeking to terminate its lease

KNL had a 10-year lease of premises in Dyce, at a rent of £450,000 a year. The landlord, VL, had opted to tax the property and KNL had been paying VAT on the rent and other payments due under the lease.

The lease contained an option for KNL to terminate the lease as at 3 January 2022. KNL was required, by 3 April 2021, to serve written notice to terminate on VL and to make a break payment of £112,500 ‘together with any VAT properly due thereon’. KNL served its notice to terminate on 23 February 2021 and paid £112,500 by BACS transfer to VL’s bank account. It did not pay VAT on the break payment.

On 4 June 2021, so after the 3 April deadline for satisfying the break conditions, VL’s agents wrote to KNL stating the break option had not been validly exercised, as it had not paid the VAT of £22,500 on the break payment and this was properly due following HMRC’s change in policy on termination payments.KNL argued that, at the break date, no VAT was due on the break payment and the Outer House of the Court of Sessions agreed on the basis of the HMRC policy and guidance at the time. However, on appeal, the Inner House has found that the break payment was subject to VAT.

Practical implications:

The practical implications for KNL are not good – its break notice was ineffective and so its lease has not been terminated. For the rest of us, it is now clear that if a lease provides for the tenant to pay VAT on any payments made under the lease, and the landlord has opted to tax, VAT is payable on the break payment.

Given the complexities of this area of law, and the possible financial implications, speak to a member of our Tax Team for further advice.