Administration vs CVAs – Advantages, drawbacks and support

When your business faces financial distress and struggles to repay debts, some insolvency procedures can serve as valuable tools for restructuring rather than simply dissolving your business.

These frameworks, used correctly, can even provide a pathway to recovery and future stability. Our insolvency expert, Luke Morgan, takes a look at the challenges and benefits of the two most widely used methods.

What are your insolvency options?

Administration

Administration is aimed at rescuing a company as a going concern.

This process stops any legal action from creditors, even if already in progress, and allows the business to operate under the management of an appointed administrator.

The administrator’s role is crucial in managing the company’s affairs, business, and property with the objective of either restoring the company’s financial health to continue its operations, selling the business to a new owner or realising assets to repay creditors.

With strong industry contacts we can support you in the process of filing for administration, as well as providing advice on the responsibilities and powers of the administrator, the preparation of proposals for restructuring and negotiating with creditors.

Company voluntary arrangements (CVAs)

A CVA allows a company experiencing financial difficulties to reach an agreement with its creditors about the payment of all or part of its debts over an agreed period.

Depending on the situation, CVAs are attractive as they enable company directors to retain control of the business, while also hitting pause on legal action and creditor claims that might otherwise push the company into liquidation.

In this situation, it is essential that business owners seek support with structuring the proposal to creditors to ensure it offers a viable and fair approach for debt repayment – anything else may result in refusal.

Negotiations with creditors

Effective negotiation with creditors will form the core of any rescue strategy, whichever option you choose.

Solid legal advice should guide how you approach these conversations because it can help you to secure favourable terms that support business recovery relating to:

• Overall debt
• Repayment terms
• Creditor support of restructuring plans

Which is right for you?

Each insolvency option carries distinct legal implications and strategic advantages which may influence your decision alongside the requirements of your specific situation:

• Administration offers a lifeline for businesses that are not yet irretrievably broken but need significant restructuring to survive, with breathing space to implement operational changes and strategic pivots.
• CVAs allow for more flexibility and can be seen as less hostile by creditors since the proposal needs their approval to proceed, potentially facilitating better relations with creditors post-restructuring.

Ultimately, we and our contacts can help you to assess the suitability of each insolvency procedure based on the specific circumstances of your business, ensuring you understand the risks and benefits to make an informed decision which aligns with your long-term goals.

Please contact our Insolvency team to discuss your requirements and find out how we can support you.

When developing industrial commercial property for sale or rental, you will need to seek advice on meeting your obligations in order to reduce risk to yourself and your business.

With a substantial market for industrial properties, we have seen a growth in the number of development projects undertaken by commercial clients – but also a corresponding rise in misunderstandings involving industrial property law.

Our Head of Commercial Property, Elena Nicolaou, takes a deep dive into the elements of industrial property developments which require significant legal advice to reduce the potential for financial penalties and project delays.

Land use

Certain land and existing properties will have use regulations attached meaning that they cannot be used for certain purposes.

Developers will need to seek advice on whether they are permitted to build or redevelop industrial commercial property on a site, and how to obtain the right permissions and regulatory approvals.

Environmental compliance

Developers need to ensure that their projects comply with environmental laws and regulations and do not cause harm to the surrounding areas.

This includes conducting environmental assessments and obtaining necessary permissions related to air and water quality, waste management, and hazardous materials.

Certain areas may carry additional requirements to protect the surrounding areas, such as agricultural land or preservation sites.

Rights and services

It is important as part of your site due diligence that you ensure the site can be accessed via the public highway and is not land locked.

In addition, you should ensure that in respect of any development services are available for the site or if any new connections are required, they can be connected from the public highway and where required any consents are obtained.

Planning

On any major development we would recommend a pre apps meeting with the relevant local authority this can often be insightful and allow you to amend any planning application that may need to be submitted for the development.

You should also consider whether the relevant local authority has adopted CIL and whether the scheme for which planning may need to be obtained will require you to enter into a s106 agreement that will require s106 contributions all of which are relevant to the viability of the scheme.

Occupational Tenancies

If the site being bought is subject to occupational tenancies it is essential that any such tenancies can be terminated or will come to an end at the time you require to undertake the development so that it does not impact on your timescales.

Title

It would be advisable to investigate the title of the site well before to see if it is caught by any restrictions or whether the land is subject to an overage.

Restrictive covenants can normally be dealt with through indemnity insurance but often came at a substantial cost depending on the general development value of the scheme and you may need to factor this into your negotiations for the purchase price of the site.

Putting the right contracts in place

When developing industrial property, it is important to have the right construction and supply contracts in place, detailing:

• The scope and timescale of the project
• Expectations of quality
• Expectations and requirements of environmental protections and sustainable materials
• Costs and payments

Not seeking advice on contracts can cause significant delays in your project and lead to disputes in the future.

Financing

We can advise you on aspects of financing an industrial property project, including the most appropriate way to structure its finances through debt, equity or a combination of both.

Depending on how you finance your development, you may need advice on:

• Securities and disclosures to investors
• Financial reporting
• Loan agreements and negotiations
• Joint partnerships and ventures

Early advice can help you to minimise risk as industrial property developments can run up significant costs.

Dispute resolution

Legal advice can help establish processes for resolving disputes that may arise with contractors, tenants, or regulatory bodies, potentially avoiding costly litigation.

As specialists in commercial property law, as well as construction, employment and dispute resolution experts, we can support you throughout the life cycle of an industrial commercial property development – making sure you have everything in place for a successful project.

We can advise you on the development, management and leasing of industrial commercial property. Contact us to find out more.

Reflecting on this past Stress Awareness Month, our Employment Law team are taking a look at the rights of employers and workers relating to mental health and stress reduction in the workplace.

From an Environmental Social Governance perspective, workplace wellbeing has come into the spotlight in recent years and many employers have taken meaningful steps to reduce the feeling of stress felt by staff, such as:

• Integrating time to decompress into the day
• Taking on additional staff to cover workload
• Offering wellbeing benefits such as fitness initiatives
• Having mental health support groups or champions

While these have all taken a positive step in the right direction, are employers and workers actually aware of the legal case for stress reduction?

In our experience, this is not as widely understood as it could be – and now is the perfect time to remedy that.

Health and safety

The primary piece of legislation which protects workers’ health and wellbeing at work is the Heath and Safety at Work etc Act 1974.

It states that employers have a duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees at work.

This obligation extends beyond physical health to encompass psychological wellbeing. Although not explicitly targeted at stress reduction, the 1974 Act does maintain that employers must carry out risk assessments to manage and mitigate the risks of work-related stress by implementing practical measures.

These measures could include adjusting workloads, providing support through a workplace buddy or counselling services, or ensuring a supportive management style.

That is not to say that the Act prohibits workplace stress. Instead, it creates an obligation on employers to ensure that stress levels are within reason and not caused due to improper behaviour such as harassment or failure to apply appropriate safety procedures.

It is important to have policies and procedures in place to support these measures and enable workers to raise informal concerns at an early stage. This will often prevent the issue from escalating as the employer is aware of it and can take steps to address any issues as required.

Mental health discrimination

When stress becomes debilitating it can result in a mental health condition.

Workers with mental health conditions that qualify as disabilities are protected from harassment or discrimination due to their disability or anything arising from it (e.g. disability related absence) under the Equality Act 2010.

Employers are also required to make reasonable adjustments to the workplace or the workers job role to ensure disabled workers are not at a substantial disadvantage compared to non-disabled workers.

This may well include stress reduction if stress is unusually severe or results from or is exacerbated by work-related stressors e.g. working practices, workloads, relationships with co-workers or staff management procedures.

There is no cap on the sum that can be awarded by employment tribunals for discrimination. Awards typically include compensation for personal injury and or injury to feelings and for loss of earnings.

A note on definitions

The Equality Act states that employers must provide ‘reasonable’ adjustments for those with mental health conditions which qualify as disabilities.

Defining which conditions are covered by the definition of disability at section 6 of the Act can be a challenge, but generally workers will be protected if they have an impairment which has a substantial (i.e. nontrivial) and long term adverse effect on a their ability to carry out day to day activities (disregarding the effect of any medication taken to alleviate symptoms or auxiliary aids).

An injury or impairment is treated as having long term affect if it has lasted or might last for 12 months or more, having regard to the risk of recurrence.

The following have been found to be disabilities:

• Autism
• Bipolar disorder
• Depression and/ or anxiety
• Obsessive-Compulsive Disorders (OCD) in some circumstances
• Schizophrenia
• Certain other neurodiversities including ADHD

In terms of supporting those with mental health disabilities in the workplace, reasonable adjustments may include:

• Conducting periodic stress risk assessments
• Swiftly resolving any outstanding workplace disputes
• Allowing a phased return from sickness absence
• Agreeing increased absence management trigger points for those with disabilities
• A supportive / individual worker appropriate management style
• Regular 1:1s with a manager to identify and address workplace stressors
• Temporary reductions in workload or in the requirement for time critical work
• Considering a temporary or permanent change of role or change of line manager, to address personality clashes or any perception that a particular team/department has become hostile or to a less demanding role. When considering such moves a disabled worker who meets the core criteria for the alternate role might be transferred without a competitive interview process, trumping other potentially more suitable internal/external candidates.
• Providing a quiet space for working when teamwork is not required
• Agreeing flexible working, exemption from hot-desking or from open plan working or allowing home working, to reduce anxiety
• Training for team members on being considerate to those with a specific condition
• Mental health support groups/champions or workplace buddies
• Employee assistance programs / counselling
• Holding interviews / meetings in neutral venues
• Allowing workers to be accompanied in meetings – not just in disciplinary/grievance meetings

Ultimately, it is important to note that ‘reasonable’ means different things depending on the situation and the size and administrative resources of the organisation.

Generally considering whether an amendment is reasonable might involve some balancing of the needs of the disabled worker, the employer, its other staff and its customers /service users. Employers are less likely to be compelled to make adjustments which are disruptive, prohibitively expensive or harmful to others.

Other claims

Employers who make adjustments for their workers’ disabilities and take other steps to avoid discrimination in the workplace are also less likely to face civil claims in the courts for personal injury (brought by workers who suffer a deterioration in their mental health attributable to their work) or harassment under the Prevention of Harassment Act 1997.

The basis of a healthy workplace

Aside from the legal consequences of failing to follow requirements set out by these Acts, employers typically find that approaching workers through the lens of support and stress reduction leads to a more inclusive and productive working environment.

Recognising and addressing mental health issues not only aids in compliance but also contributes significantly to staff satisfaction and staff retention, which further reduces the risk of contravening employment law during the exit process.

Ultimately, employers who invest in mental health support send a clear message – they value their workers’ well-being as much as their contributions to the company.

For bespoke guidance on stress reduction and your rights and obligations, please contact our expert Employment Law team today.

Contact Lisa Judd by emailing Lisa Judd by emailing LisaJudd@palmerslaw.co.uk or Kristie Willis by emailing KristieWillis@palmerslaw.co.uk.

If your property has a short lease (less than 80 years, or fast approaching the point where it will have 80 years or fewer left on the lease term), it is more than likely that you will need to extend your lease at some point in the future in order to be able to sell it on the traditional property market.

It may also be the case that you have been appointed as an executor on behalf of a family member and discovered their property has a short lease.

You will then need to apply and to have it extended before you can sell it, assuming that you have a duty to do so as a trustee or executor.

Your options

If you are facing this kind of situation, there are options available to you.  These are usually:

• Informally – In this case, you would approach your direct landlord (normally the freeholder of the building) and you both agree on a price informally and proceed to extend the lease by agreement.
• Formally – By what is known as the “statutory lease extension route”, pursuant to Section 42 of the Leasehold Reform Housing and Urban Development Act 1993. In these circumstances, the process begins by you serving a formal notice on your landlord. Both the tenant and landlord have a fixed amount of time prescribed by law to come to an agreement regarding the lease premium payable. If a premium cannot be agreed, the matter is referred to the Leasehold Valuation Tribunal who will then determine the valuation.

In either case, once the terms and the price of the extension are decided upon, the formal legal documentation is drafted and put into place.

Nature of the process and stressful complications

The process can be quite complex and long-winded.

If you find yourself in the position of selling a property with a short lease and having to go along the formal route, starting by serving a Section 42 Notice, you are likely to face issues such as:

• Time constraints – Unless you have a cash buyer, you may have to wait until the whole Section 42 “statutory” process is completed. Most High Street lenders are reluctant to offer finance on properties with short leases and therefore a purchaser with a mortgage (or your own bank if you are refinancing) are not likely to commit to the buying or funding as the case may be, until the process has fully concluded. The formal, statutory process can take a number of months.
• Expense – Serving a Section 42 Notice and following the statutory process can be expensive, especially if the lease valuation or extension is contested and referred to the Leasehold Valuation Tribunal. You will need to pay legal and surveyors’ costs associated serving a Section 42 Notice and then for advice during, and to run, the contested process.
• Complexity – Statutory deadlines and the need for excellent project management mean that keeping everything on track and everybody involved in the transaction happy can be tricky.

Cost of the premium

Whether you are following the formal or the informal route, you will of course need to factor in the expense of the cost of the lease term extension itself – you may not have the finances readily available to pay the premiums.  This may be so especially if you are an executor and the estate has limited liquid finances.

Why consider selling at auction?

If you meet the criteria of being able to serve a Section 42 Notice, you may be able to reduce risk in the process by selling the property at auction.

There would still be the need to embark upon the formal route, but, critically, you could transfer the running of the process and leave the obligation to fund the extension and the process with the buyer.

Within the auction special conditions, it is open to you to stipulate that, upon the request of the buyer, you would be prepared to serve a Section 42 Notice to the landlord, normally between the point of ‘fall of the hammer’ and the completion date (which is usually 21 or 28 days after the auction date).

Upon completion, we can assist you with assigning the benefit of the Section 42 Notice which we would have served for you, to the buyer. At that point, the buyer essentially would replace you and, assuming a valid assignment of the notice, the buyer acquires the right to apply to the landlord to extend the lease.

This process benefits you as the seller of a short lease, compared to a traditional sale, in the following ways:

• A shorter sale. Completion can be a few weeks compared to a few months.
• Fewer complications for you as the seller: You do not have to go through the whole process.
• Less costly in terms of the process: You do not have to pay the fees associated with the lease extension (including legal and surveyor’s costs).
• No need to fund the premium for the extension: The premium is paid by the buyer (especially if the estate has limited finances).

We can advise you on lease extensions in the context of sales, remortgaging or equity release, and about auction houses and lease extension surveyors who might be able to help you or if you need assistance with the legal aspects of auction sales.

For further support on property law matters, please do contact a member of our team.

It’s nothing something that many business owners want to think about, but consider the following scenario:

John Smith, owner of Company X, takes out a loan for his business and uses it to fund a new product range. He plans to use the profits from this range to repay the loan at a rate of £500 per month.

Contrary to Mr Smith’s robust financial plans, the new product fails to make enough income to repay the loan.

After meeting his essential business costs, John Smith must default on his loan as he cannot spare £500 from his business accounts per month.

His loan provider is forced to commence recovery proceedings – putting John’s assets at risk.

Take a look at the facts

John is an amalgamation of any number of business owners who have taken out a loan to grow their operations and, for a range of reasons, cannot make the agreed repayments.

Depending on the type of security John has granted to the lender, his assets may be a risk.

Assuming he has granted a legal charge, debenture and a personal guarantee, the assets that are at risk if he does not comply with the terms of the loan agreement and the security documents would be the property over which the legal charge has been granted and all of John’s assets (including all properties).

Ultimately any assets that John owns in his name personally could be at risk if the lender instigates bankruptcy proceedings against him.

When his lender decides to commence enforcement action, any costs associated with this (including the costs and expenses of an insolvency practitioner) will be added onto the loan and will be deducted from the proceeds of the sale of assets.

If there is a surplus, this will be repaid to John, although there is rarely a surplus once all sums due to the lender have been paid.

Depending on the terms of the loan, the lender may be entitled to charge default interest if John fails to pay the loan.

In some circumstances, the lender could even charge a management fee for the time it takes the lender to manage John’s account.

Banking and Finance Associate Solicitor, Dashna Morarji-Sagoo, concludes: “In my experience, in order to prevent the lender from enforcing the security, it is best for borrowers to communicate with the lender and be transparent, otherwise there could be severe costs implications and assets put at risk.”

We can provide impartial, straightforward advice to anyone considering taking out a loan where there is increased risk to their business or assets.

Contact Dashna Morarji-Sagoo by emailing DashnaMorarji-Sagoo@palmerslaw.co.uk or calling 01375 484443 or BJ Chong by emailing BJChong@palmerslaw.co.uk

The contents of this article are intended for informational and educational purposes only.

When you create a Will, you do so on the understanding that your estate will be administered according to your wishes, so long as the Will is valid under the law.

This means that you are free to leave your assets to the people or organisations of your choosing, whether that be family, friends or a charity.

However, there are certain circumstances in which those not detailed in your Will may seek to make a claim against your estate. You’ll need to understand these and seek advice on drafting your Will in order to avoid disputes after your death.

Claims by dependents

The primary situation where claims may be made against your estate in addition to those detailed in your Will is when dependents claim under the Inheritance (Provisions for Family & Dependents) Act 1975.

The Act allows certain categories of people which have a relationship with you to make a claim where they feel that your Will fails to make sufficient provisions for them.

Claims may be made by:

• A spouse or civil partner, whether separated from you or not
• An unmarried former spouse
• Someone who has cohabited with you for two years prior to, and immediately up until, your death
• A child, whether biological or adopted
• A stepchild or someone else you treated as a child
• Someone who was fully or significantly financially dependent on you immediately before your death.

The Courts will decide what classes as ‘sufficient and reasonable’ provisions, taking into account circumstances such as the size of your estate, the needs of the claiming party and any existing obligations you hold towards them.

Claims under promises made and broken

If you have promised financial support to someone after your death, but your Will does not reflect this, then the person may be able to make a claim against your estate under promissory estoppel.

This is the concept within the law that states one party may be liable for financial harm as a result of broken promises.

The Courts may intervene in such a case, provided that the individual is able to prove that you made the promise, that it was not met, and that they have suffered financial harm as a result of relying on that promise.

Securing your Will

Want to make sure your assets are distributed according to your Will? The best way to achieve this is to anticipate whether your Will might trigger any claims in either of the above scenarios.

If you have someone who relies on you financially or family members which are classed as dependents, you should first consider how you can provide sufficient support for them in your Will – or the reasoning behind not wanting to do so.

It is your right to distribute your assets according to your own wishes, but it is also a good idea to identify why you have not made provisions for certain dependents in case a dispute arises.

This is also a discussion that you can have with your dependents while drafting your Will, if this is appropriate to your situation.

Whatever your circumstances and family dynamic, we can advise you on drafting a Will that works for you and your dependents. Contact our Wills and Probate team to discuss how we can help.