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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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This book is now Out of Print.
A new edition has been published, the details can be seen here:
Property Insolvency 2nd ed isbn 9781846615474

Property Insolvency

ISBN13: 9781846611513
New Edition ISBN: 9781846615474
Published: February 2009
Publisher: Jordan Publishing Ltd
Country of Publication: UK
Format: Hardback + CD
Price: Out of print

With the current economic climate, property professionals have been affected by the escalating number of bankruptcies and voluntary arrangements. Between 1998 and 2006, the number of IVAs per annum increased by 900% and bankruptcies by 320%.

Practitioners working in these areas will need to ensure that they are informed of all the relevant issues surrounding these cases. Property Insolvency will provide you with a comprehensive knowledge of the law relating to property and insolvency, as well as related areas such as bankruptcy and trustee sales.

This text will ensure that practitioners can be confident of having the relevant knowledge and clear guidance on the practice and procedure on how to deal with these difficult subjects.

Insolvency Law, Property Law
Historical background
The Legislative Framework
Reform and increasing regulation The Insolvency Act 1986, The Insolvency Act 2000, The Enterprise Act 2002 through to The Tribunal Courts Enforcement Act 2007
Application and implications of the European Convention on Human Rights
Part 1 Insolvency Overview
Immediate considerations and signs that a tenant may become insolvent
First steps
Reconstruction and rescue
The Enterprise Culture
Voluntary Arrangements The comprehensive effect of arrangements after the landmark decision in Prudential Assurance Co and Others vPRG Powerhouse and Others [2007 EWHC 1002 (ch)]
The abolition of receivership
The growth of administration
Part 2 Landlord Insolvency
Insolvency effect of superior and inferior interests general position
Disclaimer of superior interest freehold etc (x referenced with Chapter 8)
Enforcement by tenant of landlord’s covenants where landlord is in:
Voluntary arrangement
Funds held by landlord in rent deposit deed (x-referenced with Chapter 7)
Part 3 Tenancy Insolvency
Liability for Rent and Other Obligations Under a lease
Receiverships limit and extent
Administration liability
Company Voluntary Arrangements restrictions imposed
The effect on liability following a reconstruction (CVAs, Schemes of arrangement)
Liability for rent in administration
Liability for rent in liquidation
Liability for rent in bankruptcy
Environmental and Statutory obligations
Rent payable as an expense of an insolvent arrangement with priority over other debts
Business rates
Execution of judgments against insolvent companies under the Tribunal Courts & Enforcement Act 2007
Recovering of subrents from sub-tenants under the Tribunal Courts & Enforcement Act 2007
Proofs of debt
Commercial Rent Arrears Recovery/Distress
The abolition of distress under the Tribunal Courts & Enforcement Act 2007
The creation on Commercial Rent Arrears Recovery (CRAR)
Is CRAR worthwhile?
The right to exercise CRAR and how this is effected by insolvency
Rent affected by CRAR
CRAR as a charge effect on preferential creditors
What goods a landlord can take when exercising CRAR
When the Courts permission will be needed to exercise CRAR in insolvency
The CRAR mechanism how it is exercised
Action to avoid CRAR
Licensed Insolvency Practitioners Remedies for wrongful CRAR
CRAR compared to other remedies
Landlords right against executing creditors
Further reform the CRAR regulations to come in force
Forfeiture rights contractual and common law
The effect on forfeiture by moratoriums created by insolvency statutes (in particular The Enterprise Act 2002 for administration and the Insolvency act 2000 for CVAs)
Waiver of the right of forfeit
When the Court’s permission is required in insolvency for a landlord to forfeit
Other preliminaries to forfeiture
Has the landlord waived the right to forfeit?
Forfeiture mechanism how it is achieved
Direct action or relief from forfeiture taking account of new case law and the Tribunal Courts & Enforcement Act 2007
The effect of forfeiture on the lease and any existing underleases
Relief from forfeiture
Compensation and the landlords costs
Particular points arising in administration, company voluntary arrangements, liquidations and bankruptcies
Original Tenants and Previous Assignees Liability
The distinction between new leases and old leases under the Landlord & Tenant Covenants Act 1995
Liabilities for rent arising
The Liability of Guarantors and Sureties
The effect of a voluntary arrangement on a guarantee following Prudential Assurance Co and Others v PRG Powerhouse and Others [2007 EWHC 1002 (ch)]
Indemnity or co-obligation
Rent deposits and bank guarantees
Guarantors to original tenants or previous assignees
Authorised guarantee agreements
Availability liquidation and bankruptcy
Contracts which may be disclaimed leases
Forcing a liquidators hand notice to elect
Procedure and timing of disclaimer
Effect on landlord
Effect on original tenant and previous assignees
Effect on third parties (including under tenants) and sureties
Vesting Orders
Damages consequential on disclaimer
Part 4 Rights Under Mortgages and Other Charges
Mortgages LPA Receivership
Appointment of receiver
Contractual terms of charge/mortgage
Powers of the receiver
Remedies available to landlords
Sale and possession by LPA Receiver;
Part 5 Property Assets and Personal Insolvency;
Bankruptcy and the matrimonial home
Bankruptcy and Ancillary relief orders (e.g. property adjustment orders)
Individual Voluntary Arrangements and the IVA Protocol
Debt Relief Orders and Debt Management Schemes
Part 6 Property Taxation and Insolvency
Capital Gains/Corporation Tax on disposals
Part 7 - Licensed Premises and the Leisure Industry
Leases of public houses
Licensing and planning issues
Specialist insolvencies (e.g. golf courses, casinos , restaurant chains)
Application for permission to forfeit against company in administration
Example of a witness statement in support
Application for relief from forfeiture (including subtenants)
Notice of disclaimer
Notice to elect
S.146 Notice on grounds of insolvency
LPA Receiver appointment documents
Specimen clauses for Voluntary Arrangements
Administration Licence to Occupy
Specimen property clauses for pre-pack sales