October 8, 2021
Our October 2021 summary of the latest developments in Property law and practice is as follows:
Ring-Fencing Covid Arears
The Ministry of Housing, Communities & Local Government has published a summary of responses to and an analysis of its Call for Evidence on commercial rent debts, investigating how landlords and tenants were responding to the build-up of rent arrears accruing during the pandemic. Following an analysis of responses, the Government announced that:
- Legislation will be introduced to ringfence debt accrued due from March 2020 for those tenants whose businesses were affected by closures imposed by Covid-19 restrictions (essentially meaning that landlord’s must negotiate settlements and cannot simply forfeit.) No specific date in March 2020 is mentioned but one assumes it is rent falling due during the moratorium period under section 82 of the Coronavirus Act 2020 which has been running since 24 March 2020.
- Section 82 of the Coronavirus Act 2020 will continue to prevent forfeiture for unpaid rents until 25 March 2022. However, as soon as ringfencing legislation is passed, the restrictions on forfeiture will only apply to ringfenced arrears, thereby opening up the possibility for landlords to terminate leases in respect or pre-pandemic arrears of rent, or arrears accruing after Covid-19 restrictions ceased to apply in the tenant’s sector.
- Alongside ringfencing, and the continuation of restrictions on forfeiting for (or using CRAR in respect of) unpaid rents, the Government will introduce a system of binding arbitration to be undertaken between landlords and tenants. This is intended as a last resort if the parties are unable to come to an agreement
Option to VAT
During the height of the pandemic, HMRC extended the time period for notifying an option to tax from the normal 30 days to 90 days. This temporary extension came to an end on 31 July 2021. The temporary change during the pandemic to allow taxpayers to notify an option to tax with an electronic signature has now been made permanent.
The Land Registry has updated its guidance in relation to the use of electronic signatures. At paragraph 13.3 of Practice Guide 8, the Land Registry sets out its requirements for a valid electronic signing of a deed, which are (in summary) as follows:
- All the parties agree to the use of electronic signatures and a platform in relation to the deed and all the parties have conveyancers acting for them.
- A conveyancer is responsible for setting up and controlling the signing process through the platform.
- The conveyancer who lodges the registration application does so by electronic means and includes with the application a PDF of the completed deed. Where the application is for first registration, a print-out of the PDF, certified to be a true copy of the completed deed, can be lodged.
- The conveyancer lodging the application provides a certificate (given either by that conveyancer or the disponor’s conveyancer) in the following form: “I certify that, to the best of my knowledge and belief, the requirements set out in practice guide 8 for the execution of deeds using electronic signatures have been satisfied.” Practice Guide 8 has been updated to provide that the certificate needs to be dated and signed by an individual conveyancer, their full name and firm must be added and the deed or deeds for which the certificate is given must be specified.