Insights Commercial Property Law – Key Considerations (January 2022)

Our January 2022 summary of the latest developments in Property law and practice is as follows:

The Commercial Rent (Coronavirus) Bill 2021-22 was introduced into parliament on 9 November 2021.

The aim of the bill is to provide a backstop in situations where a landlord and tenant cannot reach an agreement for compromising on the tenant’s debt liability. In this situation, the parties are bound to arbitrate through a new system introduced by the legislation.

The bill relates to business tenancies (as defined by Part of 2 of the Landlord and Tenant Act 1954) and includes payments for service charge, VAT and interest paid on unpaid sums. It will apply in respect of unpaid rent arrears that are protected and fall within the ring-fenced period (starting on 21 March 2020 and ending with 18 July 2021 in England and 7 August 2021 in Wales or, if earlier, the last day upon which a closure requirement applied to the business or premises in question).

The government has revised and updated its Code of Practice for commercial property relationships following the pandemic.

The Code of Practice provides guidance on negotiating rent arrears accrued during the pandemic. It is intended to be used alongside the Commercial Rent (Coronavirus) Bill 2021-22 but can be used by any business that falls outside the legislation too.

The Code sets out what it intends the arbitration procedure under the Commercial Rent (Coronavirus) Bill 2021-22 to cover. Specifically, achieving a proportionate result for both the landlord and tenant and preserving otherwise viable businesses from going under.

The new Code includes a non-exhaustive list of factors the parties may wish to take into account when negotiating and a timeline for referring the matter to an arbitrator.

The Department for Transport (and Office for Zero Emission Vehicles) has published a response to a consultation by the DfT on “EV Charge points in Residential and Non-Residential Buildings.” In its response, the government sets out proposals to changes to regulations.

In relation to non-residential buildings, buildings undergoing major renovations, with more than 10 parking spaces after the renovation is complete, must have at least one charge point and cable routes to cover one charge point in every five for the total number of spaces.

The paper states amending regulations will be brought before parliament this year.

The National Security Investment Act 2021 came into force on 4 January 2022. Among other things, the Act provides the government power to scrutinise and intervene on “investments” for the purposes of protecting national security. The trigger for such intervention is when there has been, or there is contemplation of, an acquisition of an entity or asset where they may be a risk to national security.

In property transactions, such a trigger could be the proposed or actual acquisition of land close to government facilities or ‘sensitive industries’ (which clause 17 specifies as including AI, civil nuclear, communications, transport, military, satellite, space technologies and other).

Based on guidance from The Department for Business, Energy and Industrial Strategy, it is expected that acquisitions over qualifying assets (such as land) do not require mandatory notification to the Secretary of State. Rather, notification will be voluntary, and parties may wish to voluntarily notify the Secretary of State to ensure the acquisition will not be called-in for security checks by the government.

The Department for Digital, Culture, Media & Sport has published the government’s response on changes to the Electronic Communications Code. The response includes proposed amendments to the Digital Economy Act 2017. The proposed amendments were introduced into parliament under The Product Security and Telecommunications Bill on 24 November 2021.

The proposals include:

  • Expanding the meaning of occupier under the Code
  • Expanding the rights under the Code to include the sharing of apparatus
  • Expanding the ability for operators to share sites
  • Introducing provisions to handle cases where the occupier of land does not respond to repeated notices given by the operators seeking to agree or confer rights under the Code.