Granting a lease or underlease - Completion and post-completion steps

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Overview

The stages of completing and finalizing a lease or underlease are essential in property law, requiring close attention to detail and a solid understanding of legal procedures. For those studying for the SQE1 FLK2 exam, understanding these stages is vital. This guide outlines the necessary steps, from drafting to final settlement, highlighting legal difficulties and possible problems that practitioners must resolve for successful lease transactions.

Pre-Completion Process

Drafting and Negotiation

A legally sound lease begins with careful drafting and negotiation, laying the groundwork for the final agreement.

  1. Initial Draft Preparation: Usually started by the landlord's solicitor, the draft lease must include:

    • Demise clause
    • Term and start date
    • Rent and payment terms
    • Permitted use
    • Repairing obligations
    • Insurance provisions
    • Alienation clauses
    • Break clauses (if applicable)
    • Service charge provisions (for multi-let properties)
  2. Negotiation Process: The tenant's solicitor reviews the draft, raising questions and proposing changes. Common points of negotiation include:

    • Extent of repairing obligations
    • Scope of permitted alterations
    • Conditions for assignment or subletting
    • Terms of any break clause
    • Service charge caps or exclusions
  3. Heads of Terms Compliance: Solicitors must follow the agreed heads of terms, which outline the main commercial terms of the lease.

Pre-Completion Searches and Enquiries

Thorough due diligence is essential to uncover issues affecting the lease or tenant's use of the property.

  1. Title Investigation: The tenant's solicitor must check the landlord's title to ensure they can grant the lease.

  2. Pre-Completion Searches: These include:

    • Local Authority Search
    • Environmental Search
    • Chancel Repair Liability Search
    • Utilities Search
  3. Enquiries: The tenant's solicitor should raise specific questions with the landlord's solicitor to address any uncertainties or problems arising from the draft lease or search results.

Engrossment and Execution

After finishing negotiations and completing searches, the lease progresses to the engrossment and execution phase.

  1. Engrossment: The agreed version of the lease is prepared as an official legal document.

  2. Execution Formalities: The method of execution depends on the parties involved:

    • Individuals: Sign in the presence of a witness
    • Companies: Execute by affixing their common seal or by signature of two directors (or a director and company secretary)
  3. Counterpart Execution: Leases are often executed in counterparts, with each party signing separate but identical copies.

  4. Deed or Simple Contract: Leases over three years must be executed as deeds, requiring clear wording of intent, proper execution, and delivery.

Completion Process

Completion Meeting

While virtual completions are becoming more common, traditional meetings still happen, particularly for complex transactions.

  1. Document Exchange: Typically includes:

    • Original executed lease (and counterpart)
    • Original executed rent deposit deed (if applicable)
    • Licence to alter (if tenant improvements are planned)
    • Guarantee documents (if required)
  2. Funds Transfer: The tenant transfers:

    • First rent installment
    • Rent deposit (if applicable)
    • Service charge advance (for multi-let properties)
    • Insurance premium (if tenant is responsible)
  3. Keys and Access: The landlord provides keys and access information for the premises.

Apportionment of Rent and Other Charges

Accurate apportionment ensures fairness and prevents future disagreements.

  1. Rent Apportionment: If completion doesn't coincide with the rent payment date, rent is apportioned daily.

  2. Service Charge: For multi-let properties, it's usually estimated and paid in advance, with year-end reconciliation.

  3. Insurance: If the tenant is responsible for insurance premiums, they are often apportioned from the last renewal date.

Post-Completion Process

Stamp Duty Land Tax (SDLT)

SDLT is a significant factor in lease transactions with strict compliance requirements.

  1. Calculation: SDLT on leases is based on both the premium (if any) and the Net Present Value (NPV) of the rent over the lease term.

  2. Thresholds and Rates: As of 2023, SDLT thresholds for leasehold transactions are:

    • £150,000 for non-residential properties
    • £125,000 for residential properties (subject to various reliefs and surcharges)
  3. Filing and Payment: An SDLT return must be filed and tax paid within 14 days of the transaction's effective date.

  4. Reliefs: Various SDLT reliefs may be available, including first-time buyers' relief, charities relief, and group relief.

Land Registration

Registration is essential for safeguarding the tenant's leasehold interest.

  1. Requirement to Register: Leases over seven years must be registered at HM Land Registry.

  2. Registration Process:

    • Application must be made within two months of the lease date
    • Required documents include the original lease, Land Registry forms, and proof of SDLT payment
  3. Effect of Registration: Registration creates legal title to the leasehold estate and protects against third-party claims.

  4. Consequences of Non-Registration: Failure to register can result in the lease becoming void against subsequent buyers and complicates dealings with the lease.

Notices to Landlord

Various notices may need to be served on the landlord post-completion, including:

  • Notice of Assignment
  • Notice of Charge
  • Notice of Subletting

Final Settlement of Accounts

Settling all financial matters post-completion is key for maintaining good landlord-tenant relations and avoiding disagreements.

Example: Tech Startup Office Lease

A tech startup, GrowthTech Ltd., is negotiating a 10-year lease for office space in a newly renovated building. During pre-completion searches, the tenant's solicitor discovers a restrictive covenant limiting use to residential purposes. This prompts further investigation and negotiation with the landlord.

The landlord provides proof that the covenant has been changed to allow commercial use, but this hasn’t been registered with the Land Registry. The tenant's solicitor insists on registration before completion to guarantee the lease's validity.

Post-completion, GrowthTech Ltd. must:

  1. File and pay SDLT within 14 days, calculating based on the rent's NPV over the 10-year term.
  2. Register the lease with the Land Registry within two months.
  3. Serve notice to the landlord of any immediate alterations planned for the office fit-out.

This example shows how important thorough pre-completion searches are, as well as resolving title problems and taking important post-completion steps for legal compliance and tenant protection.

Conclusion

Understanding the completion and post-completion processes in lease transactions is vital for success in the SQE1 FLK2 exam and future legal practice. Key points include:

  1. The importance of careful drafting and negotiation in creating a strong lease.
  2. The role of pre-completion searches and enquiries in identifying potential problems.
  3. The requirements for lease execution, including deeds versus simple contracts.
  4. The complexities of SDLT calculation and strict filing timelines.
  5. The necessity of timely land registration and the consequences of failing to register.
  6. The ongoing obligations post-completion, including necessary notices and account settlements.

By becoming proficient in these processes, aspiring solicitors can ensure they are well-prepared to handle lease transactions, protect their clients' interests, and work confidently within property law.