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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Global | Publication | October 2018
Since the abolition of distress in 2014, landlords who want to recover rent arrears by taking control of the tenant’s goods and selling them must do so through a statutory procedure known as Commercial Rent Arrears Recovery (CRAR). CRAR is more limited than distress and is only available to recover arrears of basic rent from commercial premises.
Leases of commercial premises also invariably contain an express right for the landlord to terminate the lease by forfeiture if the tenant is in breach of any of its terms, such as by not paying rent.
It is all too easy accidentally to waive the right of forfeit. If the landlord (or indeed its agents) does anything that effectively acknowledges an ongoing landlord and tenant relationship once it is aware of a breach of the lease, it will have waived its right of forfeit for that particular breach.
Thirunavukkrasu v Brar [2018] EWCH 2461 (Ch) considered for the first time whether the exercise of CRAR amounted to a waiver of the right to forfeit.
The landlord sought to recover accrued arrears of rent by means of the CRAR procedure and the landlord’s agents exercised CRAR over the tenant’s goods. The landlord also subsequently purported to forfeit the lease by re-entry. The tenants argued that the purported forfeiture of their lease was unlawful and claimed damages for trespass.
The judge held that the exercise of CRAR by the landlord contained an “unequivocal representation that the lease was continuing”, so that the right to forfeit the lease had been waived and the forfeiture was indeed unlawful.
Accidental waiver is a particular problem in the context of “once and for all” (as opposed to continuing) breaches, because if the right to forfeit in respect of such breaches is waived, it will be waived permanently. Non-payment of rent is a “once and for all” breach. However, landlords may be heartened to know that the right to forfeit may arise again if the tenant fails to pay another instalment of rent in the future.
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Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Publication
After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
Publication
On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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