Break Clauses Research Articles

Barriers and Enablers of Long‐term Land Leasing: a Case Study of Northern Ireland

SummaryLong‐term land leasing offers a viable alternative to land ownership in relation to increasing efficiency of agricultural production, economies of scale, and delivering environmental improvements in terms of land management. However, with no significant tenanted sector in Northern Ireland, access to land via long‐term land leasing is limited. This study analysed the barriers and enablers of long‐term land leasing. To achieve our objective, we employed a mixed methods approach. The results show that the main barriers to long‐term land leasing were environmental concern (around how the land will be managed), inheritance tax implications and the potential effect of long‐term land leasing on future succession plans of the farm business. We also found that as much as 70 per cent of the farmers surveyed believe the inclusion of a ‘break clause’ and the introduction of income tax incentives will encourage the adoption of long‐term land leasing, while 61 per cent of the farmers stated that the environmental management of the land will encourage long‐term land leasing. The study concluded that any model designed to encourage long‐term land leasing in Northern Ireland should include clauses which cover the environmental management of the land and break clauses. Income tax incentives for landowners could also be considered.

Understanding agricultural land leasing in Ireland: a transaction cost approach

Formal written land leasing contracts offer an alternative to land purchase for those farmers wishing to expand their land area and provide greater security relative to informal short-term rental agreements and are particularly important for beginning farmers with resources insufficient to purchase land. Formal land leasing contracts vary in terms of their duration, but there is limited understanding about the determinants of contract duration in developed countries. In this research, we use econometric techniques and transaction level data to explore the determinants of duration for agricultural land lease contracts for two regions in Ireland. Under the transaction cost economics approach, the research explores the role of legal status, price and non-price conditions in influencing the contract duration. Results indicate that the legal status of the tenant is a significant factor in influencing the duration. Provisions such as break clauses appear positively related to duration and confirm the theoretical expectation that long-term contracts create a demand for processes that enable adaptation over the course of long-term exchange.

Break clause update

Landlord and tenant matters are possibly one of the most litigious areas of contract law in the UK, with break clause operations being particularly fought over, and there have been numerous cases involving break clauses over the past few years. Given the continued political and economic uncertainty surrounding the UK’s decision to leave the European Union, break clauses are once again at the top of many landlords’ and tenants’ agendas. This paper reviews some of the key case law that has arisen since the original paper published in 2012, and in particular within the last year. It discusses cases concerning what constitutes vacant possession, as opposed to abandonment, and how seemingly minor infractions can result in failure of the break operation. Among other items, the paper looks at how partitioning left within one office, which the tenant claimed was an alteration, was in fact held to be tenant’s chattels.

Determining the Intonation Contours of Compound-Complex Sentences Uttered by Turkish Prospective Teachers of English

In academic speaking and writing, compound-complex sentences are hardest to articulate and write because they are longer and require certain pauses via chunking information into smaller units for nuances of emphasis in the flow of sentence so as to promote the audibility and perception. By structure, a sentence with at last two independent clauses plus one dependent clause is called a compound-complex sentence. Since the compound-complex sentences combine elements of compound and complex sentences, they are the most sophisticated type of sentences that can be used in speech or writing. Native speakers can break clauses in sentences into intonation units (or meaning units) of different lengths by depending on their own intended meaning. The aim of the research is to pinpoint where 30 freshmen of the English language Education Department of Faculty of Education at Hacettepe University in the Department of English Language Education insert the pauses (sustained juncture phonemes) as intonation boundaries in the structure of compound-complex sentences. In this research, the corpus will consist of 15 compound-complex sentences with two main clauses and one subordinate clause. They will be downloaded from Longman Dictionary of English (with CD) by means of Audacity downloading program 1.2.6, which are uttered in 44100Hz in North American English (NAE). By the principles of Error Hunt Approach and Advanced-learner Approach, these 15 sentences will be compared and contrasted with the recorded utterances of 10 PhD students to determine the pausing skills of Turkish professional teachers of English.

Law briefing

Purpose – This legal update examines the implications for commercial landlords of regulations required to be made under Energy Act 2011, and to come into force by 1 April 2018. Under those regulations, a landlord “may not let” commercial premises falling below a specified energy performance rating (likely to be E). The sanction of market deprivation arguably represents a significant shift in the balance between incentive and compulsion as the key policy tool adopted by the UK Government in seeking to improve the energy performance of commercial buildings. The paper aims to discuss these issues. Design/methodology/approach – The paper sets out and reflects a practitioner's concerns relating to the proposed new sanction of market deprivation. It identifies and highlights practical difficulties likely to be encountered when considering the interaction of the proposed regulations with existing statute (e.g. Landlord and Tenant Act 1954) and contractual provisions such as tenant break clauses. Findings – The prospect of being unable to let commercial premises that fall below a specified energy efficiency rating must focus landlord attention on rights to enter to carry out improvement works. The paper identifies a potentially significant trap for landlords in the model green lease clauses issued by the Better Buildings Partnership where tenant consent is required. Research limitations/implications – The paper does not reflect extensive or exhaustive academic research. Consistently with its purpose a legal update, it identifies key issues likely to be encountered by practitioners. Practical implications – The principal practical implication is the need for landlords and their professional advisors to consider as part of any current lease negotiations the need to secure rights of entry for landlords to carry out improvement works where premises are at risk of falling below the energy performance rating likely to be specified in regulations to be made under Energy Act 2011, s 49. Originality/value – The paper reflects a practitioner's views, developed through client matters and also through designing and delivering professional training sessions, on the likely implications of the requirement for regulations under Energy Act 2011.

Operating break clauses in leases: A clean break?

The aim of this paper is to review the common pitfalls of break clause operation with particular regard to current case law.

Issues that commonly have an impact upon corporate occupiers and how they can be avoided with appropriate foresight and planning

A corporate occupier party to a commercial lease on standard terms can reasonably expect to encounter a wide variety of issues during the life of its tenancy. At the heads of term and lease negotiation stages, matters including protection under the Landlord and Tenant Act 1954 (the Act) and rent review clauses will be considered, together with the relevant implications. As the tenancy progresses, common landlord-tenant exchanges may involve processes such as the application of service charge mechanisms, conduct of rent reviews and applications for landlord consents to alter, assign or sub-let to enable an occupier to deal with a property more freely. Towards the end of a lease, issues concerning business tenancies may once again arise, as parties consider how Act rights should be best utilised or defended. Also of importance may be the exercise of break clauses, an area of practice that commonly creates major disputes. Finally, not all disputes require a landlord and tenant relationship, for example third party neighbour matters such as disputes regarding rights to light and nuisance. This paper considers these issues from a practical, commercial and legal perspective.

Material compliance and conditional break clauses: some implications for practice

PurposeThe purpose of this research is to examine the awareness and understanding of break clause management by small business tenants in the light of the Appeal Court decision in Fitzroy House Epworth Street (No. 1) Ltd and another v. The Financial Times Ltd [2006].Design/methodology/approachThe empirical data were collected using detailed questionnaires distributed to occupational tenants in three sub‐markets across the West Midlands. The questionnaire incorporated Likert‐scale and close‐response questions.FindingsThe general conclusions were that the tenants surveyed were dangerously unaware of the barriers that exist in trying to effect break clauses, a position exacerbated by the decision in Fitzroy.Practical implicationsThe research points to an increasing need for tenants to be made more aware of the technical and management problems that surround the option to determine clause.Originality/valueThe paper offers an applied examination in an important aspect of contemporary lease management. It provides a platform on which to base further studies in other geographical areas for comparative and aggregate purposes.

Exit Strategies for Business Tenants

Adaptability is critical to success in business. Yet, many businesses in the UK occupy premises on fixed term leases, which run for several years, a feature that has great appeal to investors. However, during this time property requirements can change. This research critically examines the three main mechanisms by which tenants can bring their leases to an end, breaks, assignment and subletting. We examine the legal rules governing these devices and undertake analyses of lease data and interview and questionnaire surveys. The research finds that break clauses are an increasingly common exit mechanism agreed in the leases of office and industrial property tenants but are less frequent in retail markets. However they are not usually operated, raising questions about their purpose and timing. Breaks cannot give the more general flexibility of assignment and subletting, although these latter clauses are not often part of lease negotiations. Landlords have legitimate reasons for preventing some assignment and subletting but can be unnecessarily restrictive on some aspects. Addressing the disparate concerns of both sides of the landlord and tenant relationship on lease flexibility is a challenge to the property industry and to policy makers.

Flexibility at any price? Challenging a costly convention on leases

Some companies see property as a strategic resource that can add value to corporate performance; others view it as a commodity that more often acts as a barrier to core business activities. In both instances, insufficient forward planning often prevents companies from making the most of their property portfolios and avoiding unnecessary costs. This paper looks at how operational property portfolios can be classified according to their strategic significance to the business and, specifically, how occupiers can more closely align property holdings with core business objectives by differentiating between ‘core’, ‘tactical’ and ‘(semi)surplus’ properties. The paper focuses specifically on the topical issue of flexibility, identifying potential costs and considering whether and to what extent short leases and break clauses are worth paying for. It also contains a large number of practical tips for managing real estate liabilities and making assets perform better.

Time on the market and commercial property prices

Property markets are considered efficient when the market price of a transacted property equates with its market worth. If this condition holds then identical properties should sell or let for the same price. However, properties are heterogeneous, and information and operational constraints exist. Consequently, events in the transaction process and factors like time on the market, buyer and seller psychology and agent behaviour influence property prices, whereas in a perfectly efficient market they would have no impact. This gives rise to similar units selling for different prices. This paper examines the relationships between commercial property prices and time on the market for property. Tests fail to find evidence of a direct relationship between time on the market and transacted rents, time on the market and asking rents, and asking rents with transacted rents. The reason for the insignificant results could be because landlords would rather offer potential tenants non‐price incentives such as rent‐free periods, rent break clauses, shorter leases or fitting‐out costs to achieve a faster let than discount the agreed contractual rent. A more detailed examination of the physical, location and market conditions that determine the expected time on the market for a property to let is undertaken. Results suggest that the state of the property market is an important influence on the time it takes to let a property, and concurs with the evidence found in housing studies. With the support of our empirical findings and evidence from the housing market, we conclude that including measures of non‐price incentives, landlords’ motivation, tenants’ characteristics, and search costs in our model may explain the relationship more fully.

UK Commercial Property Lease Structures: Landlord and Tenant Mismatch

UK commercial property lease structures have come under considerable scrutiny during the past decade since the property crash of the early 1990s. In particular, tenants complained that the system was unfair and that it has blocked business change. Government is committed, through its 2001 election manifesto, to promote flexibility and choice in the commercial property lettings market and a new voluntary Commercial Leases Code of Practice was launched in April 2002. This paper investigates whether occupiers are being offered the leases they require or whether there is a mismatch between occupier requirements and actual leases in the market. It draws together the substantial data now available on the actual terms of leases in the UK and surveys of corporate occupiers' attitude to their occupation requirements. Although the data indicated that UK leases have become shorter and more diverse since 1990, this is still not sufficient to meet the current requirements of many corporate occupiers. It is clear that the inability to manage entry and exit strategies is a major concern to occupiers. Lease length is the primary concern of tenants and a number of respondents comment on the mismatch between lease length in the UK and business planning horizons. The right to break and other problems with alienation clauses also pose serious difficulties for occupiers, thus reinforcing the mismatch. Other issues include repairing and insuring clauses and the type of review clause. There are differences in opinion between types of occupier. In particular, international corporate occupiers are significantly more concerned about the length of lease and the incidence of break clauses than national occupiers and private-sector tenants are significantly more concerned about leasing in general than public-sector occupiers. Proposed solutions by tenants are predictable and include shorter leases, more frequent breaks and relaxation of restrictions concerning alienation and other clauses. A significant number specify that they would pay more for shorter leases and other improved terms. Short leases would make many of the other terms more acceptable and this is why they are the main concern of corporate occupiers. Overall, the evidence suggests that there continues to be a gap between occupiers' lease requirements and those currently offered by the market. There are underlying structural factors that act as an inertial force on landlords and inhibit the changes which occupiers appear to want. Nevertheless, the findings raise future research questions concerning whether UK lease structures are a constraining factor on UK competitiveness.

Assessing the potential impact of lease accounting reform: a review of the empirical evidence*

Accounting standard-setters have proposed that the right to use assets (including land and buildings) acquired under operating lease contracts should be recognized on the balance sheet of lessee companies. In recent years, several empirical research studies have investigated the potential impact of the proposed changes in accounting for leases. The current paper reviews this work and presents some new evidence, for a property audience. It summarizes evidence that operating leases represent a major source of finance for many companies generally, and more specifically for companies in the retail sector. Recognition of operating leases on the lessee's balance sheet would have a significant impact on performance measures, especially gearing. If markets are informationally "efficient' such changes should have little impact. However, research evidence on efficiency with respect to lease accounting information is mixed. What's more, company managers do not believe that the market is efficient so are likely to behave as if the markets are "inefficient'. Possible reactions include reduced use of leasing, shorter lease contract terms, more break clauses, or increased use of contingent rental agreements. It seems likely that lessors will be under pressure to bear greater risks.

The Potential Impact of Enforced Lease Capitalisation in the UK Retail Sector

The main objective of the paper is to assess the potential economic consequences of the G4+1 proposed changes to lease accounting by examining companies in the UK retail sector over the 1994-99 period. The magnitude of the impact of lease capitalisation is assessed by examining the effect on nine key accounting ratios that are used in decision-making and in financial contracts. A 'constructive capitalisation' procedure is used to estimate the unrecorded lease liability and asset. Operating lease finance is shown to be very important in the retail sector, with a long-term liability approximately 3.3 times higher than on-balance sheet long-term debt; by contrast, finance leases are immaterial. Operating leased assets, the major part of which is 'land and buildings' (98%), represent a significant proportion (28%) of reported total assets. Capitalisation of operating leases would have a major impact on all nine ratios. Further, the ranking of companies changes markedly for asset turnover, interest cover and the three capital-based gearing measures, and especially for general retailers. Using credit-risk adjusted discount rates would lessen slightly the impact of capitalisation, but would have little impact on intra-sector ranking of company performance. Anticipation of future lease rental increases would have a significant impact on the level of operating lease assets/liabilities and on profit after tax. While the use of renewable short lease contracts (or break clauses) would reduce the level of operating lease assets and liabilities, substantial amounts would remain to be reported on-balance sheet. These findings contribute to the assessment of the economic consequences of a policy change requiring operating lease capitalisation. Prior research suggests that individual users of financial statements are not efficient information processors, and also that company managers do not believe that users, even in aggregate (e.g. the stock market) are efficient processors. Consequently, the significant changes in the magnitude of key accounting ratios and the major shift in company performance rankings suggest that interested parties' economic decisions are likely to be affected.

Pricing short leases and break clauses using simulation methodology

This paper examines the changes in the length of commercial property leases over the last decade and presents an analysis of the consequent investment and occupational pricing implications for commercial property investments. It is argued that the pricing implications of a short lease to an investor are contingent upon the expected costs of the letting termination to the investor, the probability that the letting will be terminated and the volatility of rental values. The paper examines the key factors influencing these variables and presents a framework for incorporating their effects into pricing models. Approaches to their valuation derived from option pricing are critically assessed. Simulation methododology is applied to the rental and capital valuations of short leases and properties with break clauses. It is concluded that in addition to the rigour of its internal logic, the success of any methodology is predicated upon the accuracy of the inputs.

Uncertainty in property valuation: The pricing of flexible leases

It can be argued that the property valuation profession has historically relied upon uniformity as the basis of all capital and rental valuations. Within each property sector, differences in location and design were secondary to the underlying fundamental that the lease contracts for the properties were the same. During the 1980s most leases, in all sectors, were of 25‐year duration with the tenant being responsible for all outgoings. In the early 1990s the lease length reduced but most other terms remained constant. Rental valuation could therefore be made by direct comparison on a pro‐rata basis. Similarly, capital valuation would be made either by direct capital comparison, or by reference to a comparable rent and yield to determine the capital value by the investment method. Comparison was still the principal tool of analysis and this relied upon uniformity of leases within the market. In the late 1990s, the business environment experienced substantial structural change and tenants began to demand bespoke leases to suit their particular requirements. This has led to a plethora of different lease contracts, as tenants require shorter leases, the ability to expand and contract, break clauses and upwards/downwards rent reviews. The market is now as diverse as it was uniform in the 1980s. However, as pricing models relied upon comparison, valuers were reluctant to accept tenants’ new demands for flexibility as it was difficult to price these new contracts. This paper reviews the change in market conditions and equates the new requirements of the tenants with an increase in the uncertainty in the market. It argues that this uncertainty can be built into pricing models using probability‐based models and provides a scenario analysis to price a flexible lease contract.