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Real Estate Quarterly Autumn 2016

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Real Estate Quarterly Autumn 2016 Real Estate Quarterly Autumn 2016 1 Contents Hogan Lovells wins Real Estate Legal Team of the Year 4 at the EG Awards! Solving the surplus 5 A game of drones 8 Great expectations or hard times? 12 Case round up 16 Q&A 24 4 Hogan Lovells Hogan Lovells wins Real Estate Legal Team of the Year at the EG Awards! We are delighted to have won the inaugural Real Estate Legal Team of the Year category at the 2016 Estates Gazette Awards! A huge thank you to all our clients and contacts for making this happen. We were recognised for our work across the full The award was presented at a full house of property’s spectrum of real estate, including development, leading lights at the Grosvenor House Hotel on investment, planning, and disputes. A panel of leading London’s Park Lane. To view all the winners, please real estate industry judges praised our work on click here: http://www.egawardsevent.co.uk/ headline-grabbing deals over the past year, from the egawards2016/winners-2016 BBC’s sale and leaseback of Media Village to Argent/ This fantastic news followed hot on the heels of our Related’s £4bn redevelopment of Brent Cross South, promotion to the elite top band in Legal 500 UK for as well as our commitment to real estate as a sector, commercial property, where we are also top-ranked including asset management work. for development, hotels and leisure, and Jackie Newstead, Global Head of Real Estate said property litigation. “I am delighted for the whole real estate team here at Hogan Lovells that all the hard work everyone puts in on a daily basis has been recognised in being awarded the first ever award for Real Estate Legal Team of the Year by Estates Gazette. It is a real honour to be chosen by the judges, who come from right across the real estate industry.” Jackie Newstead, Nicholas Cheffings, Oliver Chamberlain and Gill McGreevy collecting our award Real Estate Quarterly Autumn 2016 5 Solving the surplus: Leasehold liability transactions Nicholas Cheffings and Laura Oliver offer an answer to the problem of surplus leasehold liabilities. Leasehold properties become surplus to requirements How it’s done for any number of reasons: individual stores become The business makes a capital payment or series of unprofitable; changes in working practices mean less payments to the manager which, in turn, takes office space is needed; or a takeover means rationalisation. responsibility for all of the business’s obligations under Deciding that a leasehold property is not needed is the leases. The parties enter into a management rarely the end of the story. If the end of the lease term is agreement under which the manager contracts to fulfil not imminent, the business may have to carry on paying those obligations and is given a power of attorney to rent and other outgoings for years. The problem is that enable it to do so. As a matter of law, the business surplus real estate tends to receive little attention at remains the tenant under the lease and so the landlord board level – but it is a real cost to the business. is unaffected. In practice, it is the manager that deals with the landlord in relation to all aspects of the lease The solution and the property. With active management, it may be possible to The capital payment is often paid by instalments negotiate piecemeal surrenders with landlords. Third reflecting the decreasing liability over time. Essentially, parties may be interested in taking on all or parts of the the transfer price is assessed by reference to a best properties. There may also be rates saving schemes estimate of the cost to settle the various leasehold available which could reduce some of the overhead cost. obligations. The gross liability is the cost of rent and It is, though, very rare that the business itself will be other outgoings under the leases plus a sum for the best placed to secure these deals once the easy wins inevitable dilapidations liability. Against that, one sets have been taken. In addition to the management time off estimated rental income from subletting, making required, the necessary expertise does not usually exist allowances for void periods, rent-frees, anticipated in house. So what is the solution? It may be a leasehold rental changes and the like. The resulting net liability is liability transaction (LLT), where the business based on accounting provisioning. outsources the problem to a specialist manager. By The primary risk to the business is that the actual carefully structuring the outsourcing, a third party is liability under the leases proves to be higher than the incentivised to reduce the liabilities swiftly and with payment made to the manager. This can be covered off maximum long-term benefit for the business. by careful staging of payments and the use of charged From an accounting perspective, the effective disposal accounts and restrictions on the manager making of lease liabilities at one hit (as opposed to over a protracted distributions to shareholders. In effect, the manager is period by way of single surrenders and assignments in backing itself to beat the provision. It works like this: if difficult markets) provides increased certainty, the the gross liability is £40m, the business might pay removal of market risk and possible tax efficiencies. £27m to the manager and the manager might be able to pay down the liabilities for £25m. So, the business saves money, as well as the hassle, and the manager makes £2m profit. 6 Hogan Lovells Who’s doing it? The precise requirements of the business dictate the terms The market has developed over the years and there of the transaction, but the starting position will always is now a specialist pool of managers with dedicated be a reasonable number of surplus leases which have resource, experience and track record: notably SPS, proved, or may prove, difficult to eliminate. For this Greenhills and Legacy Portfolio. A key ingredient for reason, the businesses involved tend to be large household success is a relationship of trust between the manager names, including Whitbread, B&Q and Santander. and the business. Reputations must be protected. The fact that LLTs have been quietly growing in popularity According to Charles McKendrick, Morrisons’ Director, and have been successfully used across a range of sectors Estates and Asset Management, its key driver was “risk and asset classes is a testament to their value as a viable mitigation in a cost-controlled way” which allowed the solution to a very real problem. Expect to see more of them. company to refocus its in-house resources on high- value-add areas. McKendrick added: “The portfolio This article was previously published in Estates was diverse with a range of short- and long-leasehold Gazette on 23 July 2016 tenures, tenants and locations. Surplus Property Solutions (SPS) has dealt with the portfolio much quicker than we would have achieved ourselves with eight of the 12 long-leasehold properties dealt with in the first year, and the gross liability for the long-lease element reduced by 87.5%.” Nicholas Cheffings These transactions have also proven popular with Chair, London public and quasi-public bodies which need to reduce T +44 20 7296 2459 [email protected] their overheads, including the Department for Business, Innovation and Skills (BIS) and Royal Mail. Roger Taylor of UK Shared Business Services structured an LLT for BIS in 2014 as part of its major estate Laura Oliver rationalisation programme. This was a first for government. Senior Associate, London He said: “It has proved to be a successful innovation T +44 20 7296 2000 that has delivered in excess of what the business plan [email protected] projected. There were a number of reasons for taking this approach, including time, available resource, and some challenging interests, which expert asset managers such as Greenhills had the skill and knowledge to resolve in ways which we did not.” Tellingly, he added: “As we look at further estate rationalisation, this is certainly an approach that I would consider once again where it is appropriate.” He is not alone in thinking this way. Real Estate Quarterly Autumn 2016 7 8 Hogan Lovells A game of drones The use of drones in the UK is increasing rapidly. Real estate already benefits from the technology but as their use becomes more prevalent it’s important to understand what they are, how they are used and what the risks are. Graham Cutts and Dion Panambalana are on the case. What are drones? What’s the law on this? Drones are unmanned flying vehicles, which means Regulations differentiate drones by weight. Drones over that they are not piloted in the air but controlled 150kg are within the remit of the European Aviation remotely by someone on the ground. The media use Safety Agency2. Drones below 150kg are regulated by drones to produce real-time footage whereas the fire national aviation authorities which, in the UK, is the services use them to provide an aerial perspective on Civil Aviation Authority. operations and in agriculture, they are used for crop The primary UK legislation is the Aviation Navigation dusting. While Facebook works on an ambitious plan to Order 20093. The Civil Aviation Authority has usefully use drones to provide wireless internet access in remote explained how this legislation applies to drones in its areas, Amazon is proposing to revolutionise its service publication: Unmanned Aircraft System Operations in through delivery by drone. UK Airspace4. Drone technology presents many opportunities for the Under the legislation5 small drones weighing not more real estate sector.
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