With administrations and liquidations on the rise, companies may well-find that they occupy premises under a sub-lease where their immediate landlord has become insolvent and we look at their rights and how the position differs north and south of the border.

Many landlords are experiencing the difficulties caused by tenants going into administration. Often their administrators seem to ignore landlords’ interests and lease terms when putting pre-packs together and many let the buyers of the insolvent business into the premises under informal licence arrangements, putting the landlord entirely at the administrators’ mercy when it comes to the payment of rents. If they’re lucky, administrators will offer to pay rent on a monthly basis in arrears.  

The insolvency legislation has laid the foundations for a rescue approach towards companies, which are facing insolvency. One such regime is administration. The administrator is sometimes referred to as the "company doctor". The administrator is given extensive powers to administer the affairs of the company in order to save the company from being wound up or at least, to maximise the financial position for the company's creditors.

The recent downturn in the economy is undoubtedly having an adverse effect on the cash flows of a large number of businesses in the UK. Businesses are keeping a much closer eye on outgoings and expenses, and may be looking to ease financial pressure by making payments due to creditors as late as possible.

For a business operating from leased premises, quarterly rental payments are likely to be one of the biggest outgoings. The longer the rental payment remains in the tenant's bank account, the more interest they will accrue and the more likely that cash flow issues will be eased.

It is clear from the recent collapse of Bear Stearns that the real impact of the credit crunch is now being felt. With this in mind, how can landlords and tenants of commercial properties prepare themselves for a potential rise in the number of corporate insolvencies?

Landlords’ remedies – think outside the box

The landlord of a commercial property faced with an insolvent tenant will usually have two concerns:

This Act received Royal Assent in July 2007 but no date for implementation has been published yet.

In addition to the provisions contained in this Act aimed at improving the working of the tribunals system and increasing judicial diversity, are several sections that will be of interest to financiers and insolvency professionals: 

With commentators predicting that the real impact of last summer’s credit crunch on corporate liquidations has yet to be felt, how can landlords and tenants of commercial properties prepare for a potential rise in the number of corporate insolvencies?

LANDLORDS’ REMEDIES - THINK OUTSIDE THE BOX

The landlord of a commercial property faced with an insolvent tenant will usually have two concerns:

There is a prevailing view that landlords have not fared well in recent developments in insolvency law aimed at furthering a culture of corporate rescue. However, landlords should give a broad welcome to a recent case which sought to deal with the complicated question of what expenses should be considered as “expenses of an administration”.

Administrators to the rescue

MB had been the secured tenant of a property in which she lived with B, and which she had bought at a substantial discount. The property was conveyed into the joint names of MB and B as joint tenants. Although MB’s mortgage company had insisted the property be in joint names, she claimed that the intention had always been that B would only have a minimal interest in it. He had made no contribution to the purchase price, mortgage repayments or household expenses. When MB had ascertained the effect of the joint tenancy, she gave notice of severance to B.

A recent decision from the High Court has shed some light on the remedies available to landlords under insolvency legislation against tenants who enter into administration. The decision provides useful guidance on the ability of a landlord to exercise its right of forfeiture.