by Jen Lemen-Hogarth
Hot Topic Highlight - Christmas Crackers!
Building a better you
Moving into the festive season, no doubt most Chartered Surveyors will have the RICS CPD deadline (on 31 December) in the back of their minds (we certainly do!).
Equally, if you are an RICS APC candidate, then this CPD blog module will provide a welcome boost to your yearly CPD hours.
This article will highlight three key Christmas crackers; our property hot topics for December 2017 and beyond.
If you are an RICS APC candidate, be sure to check out our great value RICS APC support (e.g. revision quizzes, e-mock interviews and APC question packs). You might also like to check out our free revision quizzes (links on our blog page), before upgrading to the full versions.
We also have plenty more free CPD blog modules - just subscribe to our email notifications here.
Why is this relevant?
Being aware of and being able to advise in the context of recent caselaw and property market changes is an essential component of providing a high standard of service to clients. It also helps us to promote trust in the profession, whilst taking responsibility for our own CPD.
There are just three of the five RICS Ethical & Professional Standards, again something that we all need to be aware of (and refresh our knowledge of on a 3-yearly rolling basis).
This article will highlight some Christmas crackers; property hot topics for December 2017 and beyond.
What do I need to know?
- What are the CPD requirements for members?
- What are the CPD requirements for RICS APC candidates?
- Christmas Cracker 1 - Lease renewals pilot scheme
- Christmas Cracker 2 - Service charge consultation
- Christmas Cracker 3 - Assignment and the EMI case settlement
What are the CPD requirements for members?
- Minimum of 20 hours between 1 January and 31 December each year
- At least 10 hours must be formal CPD, i.e. any structured learning with a clear learning objective and outcome. This can be self-managed, as long as it meets these criteria
- RICS Professional & Ethical Standards must be reviewed on a 3-yearly rolling basis
- CPD activities must be recorded online by 31 January of the following year
What are the CPD requirements for RICS APC candidates?
These are different to the requirements for Chartered Surveyors.
- All RICS APC candidates must complete at least 48 hours' CPD
- At least 50% must be formal CPD (see explanation above)
- Structured training candidates - minimum of 48 hours per 12 months' structured training
- Preliminary review candidates - minimum of 48 hours in the 12 months prior to preliminary review, with CPD record updated to reflect the requirement prior to submitting your final assessment documents
- If you are on an accredited part-time or distance learning degree, your final year will count towards your CPD hours for that year
- To be recorded within your RICS APC submission in the CPD section
Christmas Cracker 1 - Lease renewals pilot scheme
Security of tenure exists under Part II of the Landlord & Tenant Act 1954. Where this applies and the parties are unable to agree the terms of the new lease, there were historically two ways to resolve disputes.
The first is through Professional Arbitration on Court Terms (PACT), an Alternative Dispute Resolution (ADR) mechanism used for unopposed lease renewals. Typical disputes include the new rent, length of term and tenant break options.
The second is through full Court proceedings, which can be both time consuming and costly.
From 1 December 2017, however, HM Courts & Tribunals Service has introduced a pilot scheme for an alternative third method of resolving disputes.
This relates to unopposed renewals issued only at the Central London County Court, which will be subsequently transferred to the First Tier Tribunal (Property Chamber). This should help to speed up the process and reduce associated Court costs.
The key differences to full Court proceedings are:
- The parties can delay for 3 months but only if they are pursuing PACT (or another ADR mechanism)
- Draft standard directions will be used with a rapid 20 week period to trial, e.g. tenant has one opportunity to review the draft lease, experts must engage earlier in the process, no provision for disclosure or witness statements
- 2 day period schedule during which the tribunal will hear the case
- Tribunal judge and tribunal valuer will assess the case
There are likely to be a variety of issues with the new process, e.g. postponement period is short, tenant is potentially disadvantaged by only having one opportunity to comment on the draft lease, key legal issues or contentious points may not be afforded due consideration and attention.
Christmas Cracker 2 - Service charge consultation
RICS have recently consulted on a 4th edition of the Service Charge Code for Commercial Property. Responses were requested by 6 December 2017.
Service charges continue to be contentious, particularly given that the tenant wishes to keep overheads to a minimum, whilst the landlord wants to protect their assets and mitigate financial risk.
Some of the key proposed changes are:
- The current code is advisory, whereas the new edition will become mandatory with accompanying best practice guidance
- No more than 100% of the proper and actual costs can be recovered, unless the lease provides an explicit right to do so
- Annual budgets (together with supporting commentary), signed reconciliations and apportionment schedules must be issued to tenants
- Recoverable expenditure must comply with the terms of the lease
- Discrete accounts must be set up for service charge monies
- Interest must be credited to the service charge account after appropriate deductions
- In the event of a dispute, withheld service charge payments by tenants must reflect only the actual sums in dispute
Christmas Cracker 3 - Assignment and the EMI case settlement
Anti-avoidance provisions in the Landlord & Tenant (Covenants) Act 1995 have had unintended and surprising effects. These played out in the K/S Victoria Street v House of Fraser (Stores Management) Limited (2011) and EMI Group Limited v O&H Q1 Limited (2016) cases.
In K/S Victoria Street v House of Fraser (Stores Management) Limited (2011), the Court of Appeal held that:
- The guarantor of the outgoing tenant cannot also be the guarantor of the tenant's assignee (ingoing tenant), i.e. cannot give a second guarantee
- Even with agreement between the parties, a lease cannot be assigned from the tenant to their guarantor
In EMI Group Limited v O&H Q1 Limited (2016), the High Court held that a tenant cannot assign the lease to their guarantor, even with agreement between the parties. The case was due to be held by the Court of Appeal earlier in 2017 and it was hoped that the High Court's decision would be overturned, but the parties instead reached an out of Court settlement.
The general industry sentiment seems to be that the current position is uncommercial and lacks clarity. In certain circumstances, e.g. corporate restructuring or insolvency procedures, it also prevents the parties from using lease assignments effectively.
Where can I find out more?
- Check out the RICS website for more about your CPD requirements as a Chartered Surveyor
- Check out the RICS APC Candidate Guide for more about CPD requirements for candidates
- Read more about the RICS Service Charge consultation
How can I seek further support?
If you are an RICS APC candidate, be sure to check out our great value revision quizzes, e-mock interviews and APC question packs. You might also like to check out our free revision quizzes (links on our Blog page), before upgrading to the full versions.
Contact us (07491 252 025 / email@example.com) for a free informal 30 minute chat about more hot topics and how you can boost your CPD hours before December 31.
If you are a student, drop us a message (07491 252 025 / firstname.lastname@example.org) to see how we can help you land your dream job or work experience.
Stay tuned for our next blog post to help build a better you
N.b. nothing in this article constitutes financial or legal advice.