Tarmac Real Estate Bulletin: Summer 2024

Welcome to the Summer Edition of the Tarmac Real Estate Bulletin.

This quarter we take a look at landlord’s intentions when opposing lease renewals, new regulations around energy performance data and the revised Code of Practice under the Electronic Communications Code.

• Opposing a lease renewal - Landlords intention

   

• EPCs - New regulations widening access to energy performance data

   

• Telecoms - Electronic Communications Code of practice

Opposing a lease renewal – Landlord’s intention

The High Court has held that a former landlord was liable for compensation under section 37A of the Landlord and Tenant Act 1954 due to misrepresentation, resulting in the termination of a lease of restaurant premises in an important strategic location in London.

The tenant issued a request for a new tenancy under section 26 of the 1954 Act, which the landlord opposed, claiming an intention to run their own restaurant business on the premises, but the landlord misrepresented their intention to open a specific restaurant, leading to the termination order. Post-judgment evidence revealed a lack of a decided business plan.

The amount of compensation is to be determined at a later hearing.

Practical tips:

• Practical tip – the case emphasises the importance of landlords being truthful about their intentions when opposing lease renewals
• Practical tip – a court needs to be satisfied that a landlord has a “firm and settled” intention to occupy premises for its own business as at the date of the hearing
• Practical tip – the position is similar when a landlord opposes the renewal of a lease on the ground that it intends to redevelop the property

EPCs – New regulations widening access to energy performance data

The Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2024 will come into effect on 24 June 2024.

These regulations will allow greater access to data collected during energy assessments, which was previously not readily available because it was not included on the Energy Performance of Buildings Register.

Practical tips:

• Practical tip – building owners, landlords, occupiers and third parties can (with the relevant person’s consent) view information collected during the energy assessment process
• Practical tip – requests can be made to keep data off the register
• Practical tip – the Regulations may assist landlords where tenants are commissioning EPCs on subletting or assignment, as additional data will be available. The government’s intention is that wider dissemination and use of the data will support progress towards net zero by informing decisions about energy efficiency improvements.

Telecoms – Electronic Communications Code of practice

Ofcom has published a revised Code of Practice (CoP) under the 2017 Electronic Communications Code (Code). The aim of the CoP is to suggest best practice to facilitate “positive and productive engagement” between Code operators and landowners and occupiers.

The revised CoP includes suggestions for resolving disputes that may arise and in particular, best practice relating to Alternative Dispute Resolution. This backs up a new statutory duty on operators, which came into effect at the end of last year, to consider using ADR to settle disputes or narrow down disputed issues, before applying to court.

Practical tips:

• Practical tip – the Code confers rights on providers of electronic communications networks and infrastructure operators to install and maintain equipment on, under and over land
• Practical tip – where the Code operator and the landowner cannot reach an agreement on terms, the Code allows the operator to apply to court to impose an agreement conferring the required rights or to make the Code binding on the landowner or occupier
• Practical tip – we see a lot of litigation arising out of the Code and it’s hoped that this revised CoP will result in the effective resolution of disputes to ensure much-needed telecoms equipment can be deployed as quickly and as smoothly as possible