Real estate focus: September 2025

Law Commission’s proposals for reform: Some welcome news for commercial real estate

On 4 September, the Law Commission launched its "14th Programme of Reform". This contains a few projects of interest relevant to the real estate sector, commercial real estate in particular.

Commercial Leasehold

This project will comprise two sub-projects:

Legislation

The first sub-project will be a focused review of two pieces of legislation relating to commercial leasehold transactions namely:

• issues with the Landlord and Tenant (Covenants) Act 1995; and
• rights of first refusal under the Landlord and Tenant Act 1987 (in so far as the law relates to commercial premises).

The Law Commission states that aspects of these statutes are "causing significant problems in practice for commercial leasehold transactions, creating barriers for businesses, preventing commercially sound transactions and imposing needless bureaucracy".

Indeed, commercial real estate lawyers would likely agree that both contain unintended consequences that complicate commercial property transactions, with potentially easy-to-fix solutions. These proposals will therefore likely be welcomed.

Maintenance and repair of leasehold commercial buildings

The second sub-project will be a scoping project, focusing on the law governing the maintenance, repair and upgrading of leased commercial buildings. 

The Law Commission states, "there is concern that the law in this area is causing confusion and unfairness, and that it is has not kept pace with modern priorities (such as the need to improve the environmental sustainability of buildings or to reinvigorate the high street)".

As part of this scoping work, the Law Commission will consider the law relating to dilapidations, service charges, and the interaction between environmental frameworks and commercial leasehold law. Scoping work will enable them to understand the problems that exist and to test which might have a law reform solution.

We await further detail and confirmation of timescales on both sub-projects, following which we will hopefully have greater clarity over the possible changes being considered. 

Other projects relevant to the real estate sector

The Law Commission also included in its programme a number of other projects, some of which will be relevant to the real estate sector:

Management of housing estates

The Law Commission will consider how residents could be given greater control over the management of their housing estates. It will examine whether the right to manage regime that benefits leaseholders in blocks of flats could be adapted to apply to housing estates, and any other solutions. A consultation paper is envisaged for 2026. 

Ownerless land

There will be a review of the complex law of bona vacantia and escheat, including the Crown's protection from liability for ownerless land. This will include a consideration as to whether some types of ownerless land should pass to a body other than the Crown and a review of powers of certain parties to obtain vesting orders. The project will also examine the rights of leaseholders where the landlord's title escheats, and the impact of bona vacantia and escheat on the land registration system.

Deeds

The Law Commission will review the law relating to deeds, including their effectiveness, existing requirements (including witnessing, attestation and delivery), and whether amendments to the law are required to ensure the necessary formalities for creating deeds can be facilitated by smart contracts. This project will deal with both deeds executed on paper and electronically.

These projects will run alongside other notable projects which the Law Commission is in the process of consulting on, namely security of tenure under the Landlord and Tenant Act 1954, and chancel repair liability.

Register of overseas entities: Companies House publishes guidance on access to trust applications

On 29 August, Companies House published further guidance on how to submit a request to Companies House to obtain access to trust information for an overseas entity.

Part 3 of the Register of Overseas Entities (Protection and Trusts) (Amendment) Regulations 2025 (SI2025/231) (the Regulations) came into force on 31 August and enables applications to be made to access trust information relating to entries on the Register of Overseas Entities (ROE Register). This information, which was previously restricted from public inspection, can now be accessed by application subject to that application meeting certain requirements. Our Register of Overseas Entities: July 2025 update provides more details on the Regulations generally.

Here we provide a summary of the new Companies House guidance.

What options are there to apply?

Applications can be made for trust information where there is:

• A single overseas entity – Option 1; or 
• More than one overseas entity, or where a trust member is age 17 and under – Option 2.

How much does it cost to make an application?

It costs £55 for each overseas entity.

What information must be provided with the application?

The application must be made on a particular form, which is available to download from a link within the guidance. In addition, if making an Option 2 application, the applicant must provide information proving it has a “legitimate interest” in obtaining the trust information (they must be investigating money laundering, tax evasion, terrorist financing or breach of sanctions). In such a case, the applicant will need to provide:

• A detailed written account explaining why they suspect that any trust is involved in money laundering, tax evasion, terrorist financing or breaching of sanctions;
• A statement that they are requesting the trust information to progress the investigation; and 
• A statement of how they are planning to use any trust information released to them.

The applicant may also provide evidence in their written account to support their application (for example, extracts from documents or website links).

Are there circumstances in which Companies House could refuse disclosure?

Yes. Companies House could refuse disclosure of trust information:

• On national security grounds;
• If the application form is incomplete, or a legitimate interest is not demonstrated where applicable;
• Where disclosure may adversely affect an ongoing criminal investigation; and/or
• Where the trust is a pension scheme.

Companies House may also impose conditions on any trust information they share with applicants. These conditions may restrict how an applicant can use or disclose the trust information. It is an offence if an applicant does not comply with any condition Companies House imposes.

What information will Companies House share?

Companies House will share certain information about the trust including the name of the trust, the date on which the trust was created, the date the trust ceased to be involved with the overseas entity (if relevant), and former beneficial owners who were registrable beneficial owners because they were trustees of the trust (if relevant).

As far as individuals are concerned, Companies House will not share the day of the month from an individual’s date of birth, an individual’s home address (unless the individual has used their home address as their correspondence address) or any information relating to an individual who has successfully applied for their details to be protected. However information that will otherwise be shared includes the individual’s name, the date they became involved in, or ceased to be involved in the trust and their role in the trust.

Security of tenure: FTT addresses issues in “contracting out”

On August 8, 2025, the First-tier Tribunal Property Chamber (the FTT) handed down its judgment in the case of EE Ltd and another v AP Wireless II (UK) Ltd [2025] 8 WLUK 288. The FTT considered several technical issues relating to the process of contracting out of the security of tenure provisions under the Landlord and Tenant Act 1954 (the 1954 Act). The decision provides some useful guidance for both tenants and landlords in the commercial property sector who want to ensure they are validly contracting out of the statutory right to renew.

Background to security of tenure

Under sections 24 to 28 in Part II of the 1954 Act, certain tenants occupying business premises under a lease enjoy “security of tenure”; that is, the statutory right to renew their lease beyond the expiry date of the contractual term.

Under section 38A of the 1954 Act, the landlord and tenant can expressly agree to “contract out” of the security of tenure provisions by inserting relevant provisions in the lease. Since June 2004, such “contracted out” leases must follow a strict procedure set out in Schedule 2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 (the 2003 Order).

In short, this requires the landlord to give notice and the tenant to provide a declaration, both of which must be endorsed in the lease agreement. Prior to the 2003 Order coming into force, it was necessary for the parties to obtain a court order to validly contract out of security of tenure.

Issues and decision in EE and another v AP Wireless II

The case concerned the expiry and renewal of leases (the Code Agreements) under the Electronic Communications Code (the Code). One of the issues before the Court was whether or not the Code Agreements were deemed to be validly contracted out of the security of tenure provisions of the 1954 Act.

If so, the Claimants (the telecoms operators) would instead be able to enjoy a more advantageous process for renewing the Code Agreements under Part 5 of the Code. This includes a shorter notice period to instigate the termination and renewal process and potentially lower rents payable as compared to the 1954 Act (which is considered more favourable to landlords).

The FTT ultimately decided that the Code Agreements were validly contracted out of the security of tenure provisions of the 1954 Act, so the operator could use Part 5 of the Code to renew the tenancy.

Guidance on contracting out

While this case concerned a telecoms agreement, the FTT’s comments on the contracting out process should be noted by commercial landlords and tenants generally:

1. “Perfection is not required” for contracting out of Part II of the 1954 Act: wording in the Code Agreements which made clear that the security of tenure provisions were not to apply were sufficient to satisfy the statutory requirements of the regime, seemingly even in the absence of an express reference to section 38A of the 1954 Act.
2. An endorsement of the landlord’s notice and tenant’s declaration in the tenancy agreement is sufficient to contract out if the notice and declaration documents cannot be produced: if the notice and declaration have been lost, the endorsement can satisfy the evidential burden that the landlord served notice and the tenant made a declaration in the prescribed form in Schedule 2 to the 2003 Order.
3. There is a defect in the statutory transitional provisions governing the use of Part 5 renewal rights for agreements under the old Telecommunications Code subsisting when the new Code came into force: paragraph 6(2) of Schedule 2 to the Digital Economy Act 2017 states that “Part 5 of the new code…does not apply to a subsisting agreement that is a lease of the land…if –
   1. it is a lease to which Part 2 of the 1954 Act applies; and
   2. there is no agreement under section 38A of the 1954 Act in relation to the tenancy”.

The site provider argued that the operator was unable to renew under Part 5 of the Code on the basis that the Code Agreement was contracted out under the pre-2003 regime, and not by virtue of section 38A of the 1954 Act. The FTT rejected this argument, ruling that paragraph 6(2) treats leases which were validly contracted out before the 2003 Order came into force as if this was done under section 38A.

The future of security of tenure

FTT decisions do not create a binding precedent, and it remains to be seen whether the Respondents will apply for permission to appeal this judgment. However, both landlords and tenants will find the FTT’s approach to these technical points useful.

Incidentally, this case also coincides with the Law Commission’s ongoing project on reforming the right to renew under the 1954 Act — more information can be found here. Given this, the process of contracting out of security of tenure is likely to see future change and clarification.

Government consults on streamlining infrastructure planning

On September 1, 2025, the government published a consultation on streamlining the planning process for Nationally Significant Infrastructure Projects (NSIP) (the Consultation). This currently requires applicants to obtain a Development Consent Order (DCO) by following strict processes laid down under the Planning Act 2008.

The Consultation seeks views on how changes to the NSIP planning process (to be introduced under the Planning and Infrastructure Bill (the Bill)) should be implemented in practice. The Bill has been heralded by the government as providing for “transformative reforms to get Britain building, tackle blockers and unleash billions in economic growth” and introduces a range of reforms to speed up and streamline the consenting and delivery of national infrastructure. But will the proposals to improve the efficiency and effectiveness of the NSIP process be welcomed by all interested parties?

Here we highlight the main focuses of the Consultation.

Pre-application reform

The NSIP pre-application stage is increasingly time consuming for applicants, partly due to the rigid statutory duties under the existing framework. The Consultation seeks views on replacing the statutory duty for pre-application consultations with an expectation that applicants demonstrate effective engagement with community stakeholders. This will be supported by guidance to assist in the preparations of applications, as well as guidance and regulations on notification and publicity requirements for applicants. The Consultation also seeks views on the content and prescriptiveness of the guidance.

In taking this approach, the government hopes to shift the focus from the statutory process to the outcomes of delivering well-developed applications supported by a more meaningful approach to engagement. It also hopes to increase flexibility for applicants and community stakeholders to balance their engagement on an application based on the individual nature of the project, as opposed to a prescriptive one size fits all approach.

Acceptance

Once submitted, an application needs to be accepted as an NSIP. However, uncertainty around the outcome of application acceptance has made applicants cautious, leading to project delays and increased costs. To counter this, the Bill amends the threshold for submission under the acceptance test to whether an application is suitable to proceed to examination, as opposed to the current threshold of being of a satisfactory standard. It will also introduce the ability for the Planning Inspectorate to request changes to an application during the acceptance period when doing so is necessary for the application to be accepted. The Consultation seeks views on what guidance is required to accompany the changes to the acceptance test to ensure that, as far as possible, applications are developed to a quality that can be examined and determined within statutory timeframes and, where appropriate, fast-tracked or determined more quickly.

In addition, the Bill will introduce the ability for the Planning Inspectorate to consider the extent to which applicants have had regard to section 51 advice (advice issued to applicants by the Planning Inspectorate to ensure an application is better prepared for post-submission stages). The Consultation seeks views on how applicants can demonstrate they have considered section 51 advice and what should be encouraged through guidance.

Examination

The pre-examination and examination stages are key to how NSIP applications are assessed and decided within the DCO process. The government is focused on improving the efficiency with which applications are examined to deliver swifter and more robust decisions. As part of this, the Bill strengthens the statutory Initial Assessments of Principal Issues (IAPIs) process, which the government hopes will allow for a more focused, transparent and efficient examination process. The Consultation seeks views on whether further steps are needed to strengthen the role of IAPIs in order to support clarity, procedural fairness and focused and effective examination.

The Consultation also seeks views on how guidance can assist statutory bodies with their role in examinations to secure appropriate input at an early stage and introduce greater proportionality in the examination of compulsorily acquired land under a DCO.

Reforming NSIP services

NSIP services must be responsive, streamlined and well-equipped to meet the evolving demands of infrastructure planning and to keep pace with government policy. The Consultation focuses primarily on services provided by the Planning Inspectorate and seeks views on how services should be designed in response to changes being introduced under the Bill and how guidance can help applicants better understand which level of service is most appropriate to their project.

The fast-track process, which was introduced in September 2024 to expedite the DCO process for eligible applications (and which, to this date, remains unused) is overly restrictive, inflexible and is unable to support a wide variety of projects. The Consultation seeks views on the merits of redesigning the fast-track process and, if so, how it should be re-designed.

Mandatory pre-application requirements under the Town and Country Planning Act 1990 (TCPA)

The Consultation seeks views on the government’s proposal to remove statutory-pre application requirements for onshore wind projects so that applications are assessed against the National Planning Policy Framework (NPPF) in the same way as other energy infrastructure projects regulated under the TCPA. Removing the mandatory pre-application requirements for onshore wind projects would ensure smaller projects do not face more prescriptive community engagement requirements than the largest projects of national significance. If the government were to remove these regulations, engagement would continue to be encouraged through the NPPF and additional guidance could also play a role in encouraging continued engagement.

What happens next?

The government’s proposals represent a significant overhaul of the current regime, with the detailed consultation information displaying the difficult balancing exercise needed between all interested parties involved in these critical projects. The proposals will likely be welcomed by promotors of significant projects facing lengthy delays, but whether the same positivity will be shared with other interested parties remains to be seen.

The period for consultation ends on October 27, 2025. You can respond to the Consultation by completing an online survey here.