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Advanced Commercial Property

Advanced Commercial Property

Advanced Commercial Property is an elective on the LPC. With most firms having Commercial Property departments, this is a popular elective – especially for those who are heading to a big firm but not planning on spending their entire time in Corporate/Banking seats. From a personal point of view, the elective was much more practical, ‘fun’ and challenging than the rather dry law learnt on the Property core module and LLB/GDL Land Law studies.

The course (at BPP, London) is split into key sections.

1. Planning Law

The main aim of Planning Law is to control the development/use of land in order to improve/maintain the local environment. It is important to look back to the Property Law core module and analyse when planning permission is required (hint – start with s57(1) Town and Country Planning Act 1990). You will learn how to make a planning application and the ancillary concerns which should be taken into account in all cases.

It is important to note that the local planning authority has the power to require any parties interested in a development to enter into a PLANNING OBLIGATION that can restrict and regulate proposals to allow them to be acceptable (s106 Town and Country Planning Act 1990 – known as a ‘s106 Agreement’).

2. Environmental Law

This is an important area of knowledge that can have massive impact on commercial property deals and as such is dealt with in some detail on the elective. S78A(2) Environmental Protection Act 1990 (EPA) defines ‘contaminated land’ and s78B EPA 1990 requires local authorities to identify ‘contaminated land’ within their applicable areas and serve Remediation Notices on the ‘Appropriate Person’ requiring them to clean up their particular site. The ‘Appropriate Person’ can be one of two types:

i) a CLASS A person – this is someone who caused or knowingly allowed the pollutant to be in the land in question (or, importantly, someone who buys the land knowing about the contamination and does not remedy the contamination); or

ii) a CLASS B person – if there is not a ‘Class A person’ then the owner/occupier of the land at the time in question will be the Appropriate Person.

Should the Appropriate Person not clean up as per the Remediation Notice then the local authority has the power to enter the contaminated site and perform the necessary clean up – before recovering the costs of this from the Appropriate Person.

The elective further examines the practical implications of the law for solicitors acting for Buyers and Sellers of land.

3. Construction and development issues

These issues are at the crux of many a Commercial Property lawyer’s daily thoughts and prayers. This area of study begins with an analysis of the various parties potentially involved in a development (Architect, Building Contractor, Professional Team, Sub- Contractors, Employer’s Agent, etc.) and crucially, who is liable to and responsible for whom within the inter-party relationships involved.

It is important to take a ‘bigger picture’ view when considering any aspect of construction and considering where you are within the three main stages:

i) Tender and appointment – appointing architect, tendering to building contractors, contracting with chosen parties, etc;

ii) Building – work commences, certification of each completed phase, staged payments to parties, negotiated retentions, etc; and

iii) Completion of works – inspection, issue of Certificate of Practical Completion, ‘snagging list’, Defects Liability Period, etc.

4. Commercial leases

The bulk of the course is taken up with the study of the intricacies of Commercial Leases – this subject is fully and very well explained in detail earlier on in this series by Amy Dimond – I recommend you click back and read her Commercial Leases articles here and here.

5. Property aspects of corporate transactions

The final area of study on this elective is crucially important to anyone going on to train in Commercial Property where, often, your matters will be cross-departmental and involve corporate transactions. The course explains the different actions required by Buyers’ and Sellers’ solicitors in both Share Purchases and Asset Purchases, the value and complexities of Property Warranties and the drafting of Certificates of Title. Certificates of Title are reports prepared by the Seller’s solicitor (normally used where there is a large portfolio of properties) and are crucially important in corporate deals which are often undertaken in relatively short periods of time.

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