The September edition of the Commercial Property Information Update has been published on this website.

The current state of the economy has had a range of dire consequences for the property market. Some legislative changes (e.g. EPCs, HIPs) have sadly arrived at precisely the wrong time. Reduction in empty property rates relief is another example of a legislative change that is ill-timed for the commercial market.

Following publication of the Land Registration (Amendment) Rules 2008, a consolidated version of the Land Registration Rules 2003 now appears on the Land Registry website – see http://www1.landregistry.gov.uk/assets/library/custom_items/documents/La...

Of more immediate relevance is a detailed HMLR action booklet explaining the changes:
http://www1.landregistry.gov.uk/assets/library/documents/take_action.pdf

The changes (effective from 10th November 2008) include a whole new set of forms (with a transitional period, so that use of either the new form or the old form will be acceptable until 9th February 2009), new identification requirements, changes to the wording of the majority of standard form restrictions, and a few other miscellaneous changes. Beware – although a transitional period operates, it does not do so in respect of the form AP1, the form FR1, or standard form restrictions.

The practical implications of these changes are fully digested in this month’s CPI Update – September 2008.

EPCs is a recurring theme in these news items. August is normally a quiet month, but the Government is pumping out information in the run up to the next big EPC/DEC commencement date on October 1st. See, for example, Energy Performance Certificates (EPCs) and renting homes: A tenant's guide (because, of course, as the Guide says, from 1st October, "the landlord (or someone acting on their behalf, such as an estate agent) must give you an EPC free of charge for the home you are interested in renting as early as possible.”

See also Getting ready for DECs - since, on 1st October, rules relating to DECs start to apply.

CPSE general enquiries have been updated to version 2.8 to include enquiries relating to EPCs, asking (at enquiry 14) whether a valid EPC has been supplied and, if not, where one can be inspected, or why one is not required. Enquiries are also raised as regards the statutory requirement for inspection of air-conditioning systems. See CPSE.1 – (version 2.8) - general enquiries to be raised in connection with every commercial property transaction.

Property PSL documents try to avoid use of the heavily overused word “shall”. If you spot one, let me know. The word is rarely used in every day speech, so why should it be used in a legal document? Good drafting practice involves writing in the present tense (e.g. not “if the Tenant shall fail to observe its covenants” but “if the Tenant fails…”) and using the word “must” to create an obligation (e.g. not “the Tenant shall decorate the Property…” but “the Tenant must decorate the Property…”).

Used inappropriately, the word can create ambiguity, leaving doubt as to whether the writer intended an obligation, or merely an expression of future intent. For a discussion of the confusions that can arise in legal documents over the use and misuse of the words “shall” and “will”, see an archived article from the NLJ at http://www.law-office.demon.co.uk/art%20shall-1.htm/ by Roderick Ramage. For a modern example of how the word can give rise to costly arguments of statutory interpretation, see Greenweb Ltd v Wandsworth London Borough Council [2008] EWCA Civ 910 and the (failed) argument that the word “shall” in section 15 Land Compensation Act 1961 really meant “may”.

Need to read more about Community Infrastructure Levy (the Government’s substitute for Planning Gain Supplement)? The Government has published further details of its proposals for CIL – see http://www.communities.gov.uk/publications/planningandbuilding/community...
Provisions of the Planning Bill enable regulations to be laid to facilitate the introduction of CIL. This report envisages regulations coming into force in the spring of 2009.

The DCLG Guidance on Energy Performance Certificates for non-dwellings (first published in January 2008) has been updated by the DCLG and can be seen at http://www.communities.gov.uk/documents/planningandbuilding/pdf/nondwell...

Still time for some light summer reading? The Government has published major amendments to the Land Registration Rules 2003 in the form of the Land Registration (Amendment) Rules 2008 (see http://www.opsi.gov.uk/si/si2008/uksi_20081919_en_1). These changes will take effect from 10th November 2008. At present, charting the changes is difficult, as the new regulations simply amend the 2003 rules. However, a consolidated version of the rules showing all changes made by the 2008 amendment rules (including those to the prescribed forms) will be available on the Land Registry website from 18th August. Needless to say, the CPI Update will extensively examine the rule changes over the coming months.

The Finance Act 2008 received Royal assent on 21st July 2008.