Commercial Leases and Insolvency

Commercial Leases and Insolvency

by Patrick McLoughlin

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Overview

Commercial Leases and Insolvency by Patrick McLoughlin

This fourth edition contains: revised emphasis upon the UK's Enterprise Act 2002 and "collective" insolvency procedures * a summary of new-style administrations and recent UK court decisions upon the new procedure * a clear explanation of new rules relating to distributions to creditors and administration expenses * a summary of new commercial rent arrears, recovery procedure, and abolition of distress for rent * comment upon important UK case law including the Powerhouse case relating to the effect of Company Voluntary Arrangements upon guarantees.

Product Details

ISBN-13: 9781847661470
Publisher: Bloomsbury Professional
Publication date: 11/01/2008
Pages: 298
Product dimensions: 6.10(w) x 9.70(h) x 1.10(d)

Table of Contents

Preface to the fourth edition v

Preface to the first edition vii

Table of statutes xiii

Table of statutory instruments xix

Table of cases xxi

1 Tenant insolvency 1

1.1 Refinancing, restructuring and informal moratoria 1

1.2 Voluntary arrangements 3

1.3 Appointment of receiver 16

1.4 Appointment of administrator 27

1.5 Bankruptcy 39

1.6 Liquidation 49

2 Liability for rent and other obligations under a lease 59

2.1 Liability in receivership 59

2.2 Liability in administration 60

2.3 Liability in liquidation 62

2.4 Liability in bankruptcy 64

2.5 Liability of mortgagee 65

2.6 Suing for arrears of rent or breach of other lease terms 65

2.7 Execution of judgments 67

2.8 Recovery of subrents from subtenant 74

2.9 Petitioning for bankruptcy or winding up 76

2.10 Proving in bankruptcy or liquidation 80

3 Distress for rent 85

3.1 Is a distraint worthwhile? 85

3.2 The right to distrain 86

3.3 Rent distrainable 87

3.4 Charge in favour of preferential creditors 91

3.5 What goods may be taken? 93

3.6 When is leave of the court required? 99

3.7 How to distrain 105

3.8 Action to avoid distress 110

3.9 Tenant's remedies for wrongful distress 111

3.10 Distress and other remedies 113

3.11 Landlord's right against execution creditors 114

3.12 Law reform 114

4 Forfeiture of the lease 117

4.1 Does the lease give the right to forfeit? 117

4.2 Has the right to forfeit arisen? 119

4.3 Has the landlord waived the right to forfeit? 124

4.4 Preliminaries to forfeiture 136

4.5 Method of forfeiture 145

4.6 Relief from forfeiture 146

4.7 Costs of forfeiture 158

4.8 Effect of forfeiture 159

4.9 Rescission of lease 162

4.10Appointment of receiver by court 162

4.11 Law reform 162

5 Liability of original tenant, assignees and sureties 165

5.1 Liability of original tenant 166

5.2 Liability of assignees 174

5.3 Liability of sureties 178

5.4 Indemnity and contribution 185

5.5 Subrogation to landlord's rights? 194

5.6 Rights to possession 196

5.7 Duty on landlord to mitigate loss? 200

5.8 Rent deposits and bank guarantees 202

5.9 Insurance against tenant default 204

5.10 Proof by former tenant or surety 204

6 Disclaimer of lease by trustee in bankruptcy or liquidator 207

6.1 Interests which may be disclaimed 207

6.2 Leave of court 210

6.3 Timing of disclaimer 211

6.4 Procedure for disclaimer 212

6.5 Effect of disclaimer in relation to landlord, tenant and trustee 213

6.6 Effect of disclaimer in relation to third parties 215

6.7 Vesting of lease in surety or other party 218

6.8 Effect if no disclaimer 225

6.9 Proof for injury for disclaimer 226

7 Surrender or assignment 229

7.1 Dealings by the insolvent tenant 229

7.2 Dealings by persons other than the tenant 248

7.3 Assignment 256

7.4 Surrender 266

Appendix: Taking control of goods 271

3.1 Is taking control of goods worthwhile? 271

3.2 The right to use CRAR 272

3.3 Rent recoverable 273

3.4 Charge in favour of preferential creditors 276

3.5 What goods may be taken? 277

3.6 When is leave of the court required? 280

3.7 How to take control of goods 285

3.8 Action to avoid taking control of goods 289

3.9 Tenant's remedies for wrongful taking control 290

3.10 Taking control of goods and other remedies 291

Index 293

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